Eliminating Corporate Personhood

4.1 Discussion:

Not all corporations are created equal for the purposes of Charter analysis. Section 15(1) of the CBCA states that the corporation’s right is equivalent to those of a ‘natural person’, whereas section 30 of the BCBCA suggests it is equivalent to an “individual of full capacity”. The difference in application and meaning of these two provisions depends upon the court’s interpretation of those two phrases.

The corporation’s rights is more aligned to those of a human being’s, according to CBCA section 15. It is difficult to argue that the legislature did not intend a “natural person” to mean anything other than a human being. In contrast, BC’s “individual of full capacity” leaves much more room for interpretation. It is a sort of legal fiction which is left to the courts to determine, while keeping in mind that the corporation is still bound by its memorandum and articles (as stated in Barry v Kamloops Hangers Ltd, 2016 BCSC 165).

The incremental approach to granting corporate personality is an unpredictable and concerning development. The inconsistencies in rulings with respect to piercing the corporate veil, and further delineating the concept of ‘corporate personhood’, indicates that there is no clear approach to defining their rights. I am not suggesting that the Canadian statute is preferred, far from it, but the broad language used in the BCBCA is of concern.

4.2

Section 30 of the BCBCA could be eliminated and replaced by an inclusive list of rights, powers and privileges, without invoking any form of “personhood”. The section could look as follows:

“30. A company may be entitled to rights, powers and privileges of an individual of full capacity, subject to this Act and the company’s respective articles and memorandum, if that company can establish that it has an interest falling within the scope of the guarantee, and one which accords with the purpose of the provision.”

This draft incorporates text from the ruling in R v CIP. The adoption of the court’s ruling is advisable because it would prevent the potentially disastrous effect caused by the courts in interpreting section 30. Further, this section provides the ability for corporations to make full answer and defence, while avoiding any sweeping statement to suggest that corporations are guaranteed the same rights as individuals. While it remains open to the court’s interpretation (because honestly, I am not much for drafting laws here), the use of the word ‘may’ suggests that this right is not to be expanded without careful consideration.