Revival provision in Ontario’s corporate statute is retroactive in effect

Achilles Motors Limited v. 1717222 Ontario Inc., 2014 ONCA 139:

[5]          More than 25 years ago, this court established in Zangelo Investments Ltd. v. Glasford State Inc. (1988), 63 O.R. (2d) 542 that the revival provision in Ontario’s then current corporate statute, namely s. 240(4) of the Ontario Business Corporations Act, 1982, S.O. 1982, c. 4, was retroactive in effect. That section provided as follows:

240(4) Where a corporation is dissolved under subsection (3) or any predecessor thereof, the Director on the application of any interested person immediately before the dissolution, made within five years after the date of dissolution, may, in his discretion, on such terms and conditions as he sees fit to impose, revive the corporation and thereupon the corporation, subject to the terms and conditions imposed by the Director and to any rights acquired by any person after its dissolution, is restored to its legal position, including all its property, rights and privileges and franchises, and is subject to all its liabilities, contracts, disabilities and debts, as of the date of its dissolution, in the same manner and to the same extent as if it had not been dissolved.[Emphasis added.]

[6]          In doing so, this court upheld the decision of the application judge, Oyen J. In a short endorsement, Blair J.A. wrote that:

We agree with the reasoning and the conclusion of Oyen J. The wording of s. 240(4) of the Ontario Business Corporations Act, 1982, S.O. 1982, c. 4, is such that the only reasonable inference that can be drawn is that a dissolved company that is revived, is revived as of the date of dissolution so as to update all action taken by the company during its time of dissolution.

[7]          We reject the appellant’s argument that because this court’s decision in Zangelo was in the form of a short endorsement, it should be disregarded. The court adopted the reasoning and conclusion of the application judge, as it was entitled to do so. The court’s decision was clear.

[8]          Section 241(5) of the OBCA is worded slightly differently from s. 240(4). However, the changes - particularly the words “shall be deemed for all purposes to have never been dissolved” - make it even clearer that s. 241(5) is similarly retroactive in effect:

241(5) Where a corporation is dissolved under subsection (4) or any predecessor of it, the Director on the application of any interested person, may, in his or her discretion, on the terms and conditions that the Director sees fit to impose, revive the corporation; upon revival, the corporation, subject to the terms and conditions imposed by the Director and to the rights, if any, acquired by any person during the period of dissolution, shall be deemed for all purposes to have never been dissolved.  [Emphasis added.]

[9]          Moreover, an interpretation giving retroactive effect is consistent with the curative purpose of s. 241(5) of the OBCA.