The Professionals Practice Group at Siskinds has extensive experience dealing with many different legal issues that optometrists may face throughout their careers. We understand that each stage of an optometrist’s career will attract different legal needs and considerations. The needs of a newer optometrist may be different than those of an optometrist who is nearing retirement from his or her practice. As busy professionals, optometrists may experience rapid change as their careers and personal circumstances advance. Our experience in advising optometrists on a variety of legal issues allows us to offer a comprehensive, multi-disciplinary suite of services tailored to assist optometrists throughout their personal lives, their career, and into retirement.
The specific legal services that we provide, which are tailored to optometrists, include:
- incorporating, organizing, and maintaining a professional corporation
- regulatory compliance with the College of Optometrists of Ontario (“COO”)
- corporate reorganization and restructuring
- purchase and sale of optometry practices
- partnership, cost-sharing, and shareholder agreements
- commercial and residential real estate and leasing
- employment matters
- high net worth estate and succession planning
- wills and powers of attorney
- cyber security and privacy
A significant number of optometrists choose to operate their practice through a professional corporation (“OPC”) under the Ontario Business Corporations Act and the Regulated Health Professions Act. Once incorporated, a Certificate of Authorization from the COO is required for the corporation to practice the profession of optometry in Ontario. We routinely advise optometrists on matters involving the incorporation, creation and maintenance of a professional corporation, to ensure regulatory compliance with the COO, laws and regulations. The professional’s relationship with his or her professional corporation will be as an employee. We assist in preparing an employment agreement that will provide flexibility on choosing compensation arrangements. However, the optometrist still has personal professional responsibility to his or her patients.
Incorporating an optometry professional corporation can bring significant advantages, including being taxed at a lower corporate tax rate compared to a personal tax rate, the payment of dividends to shareholders, and tax deferral strategies. We routinely provide advice to optometrists about who may own shares of an optometry professional corporation and what types of shares may be issued to shareholders. We work directly with tax advisors and accountants to ensure that the most appropriate corporate structure is established in order to achieve long term goals.
OPCs have an obligation to notify the COO of any changes made to the corporation within 14 days following the change. There are specific forms on the COO’s website which must be completed and submitted to the COO in order to provide notification of such changes. The OPC must report changes such as a change in shareholders, name and/or address of the OPC, the potential sale of an OPC, as well as an amalgamation of an OPC with another corporation. Failure to notify the COO of any such changes may result in a revocation of the Certificate of Authorization.
Renewal Process for Optometry Professional Corporations
The COO requires that the Certificate of Authorization held by each optometry professional corporation be renewed annually. A Certificate of Authorization is valid for one year, and the process to renew the Certificate of Authorization must be completed prior to the anniversary of the certificate’s date of issue. The corporation is required to complete the annual renewal application and provide the names of the directors and officers of the corporation, along with the business address, business telephone number and registration number with the COO of each shareholder of the corporation as of the day the renewal application was submitted. The corporation is also required to submit a Corporation Profile Report. If the corporation fails to comply with any of the renewal requirements, the COO may revoke the Certificate of Authorization, and the corporation will cease to be an optometry professional corporation.
We routinely assist our busy optometrist clients with this process. We maintain a tickler system and reach out to our clients so they may authorize us to assist, should they wish.
Purchase and/or Sale of an Optometry Practice
For many optometrists, their practice is one of the most valuable assets they own and selling or purchasing an optometry practice is one of the biggest decisions of an optometrist’s career. The proceeds of sale of the optometry practice will form a significant portion of the selling optometrist’s estate and will likely impact their retirement plan. If an optometrist determines that he or she wants to sell their practice, it is important to develop and execute a plan, well in advance of the sale, to prepare the business in order to obtain the best price for the practice. Advance planning for the sale of an optometry practice ensures that the optometrist has enough time to fully consider and evaluate the financial and tax implications of selling a practice and allows the optometrist to develop a strategy to ensure a smooth and successful transition.
There are many considerations that should be made with respect to the sale or purchase of an optometry practice including any financing requirements of the buyer and how these requirements may impact the timing of the sale. It is not uncommon for one of the conditions of the sale to require the selling optometrist to continue practicing as an associate of the practice for a period of time following the closing of the sale in order to help preserve the goodwill of the practice. This may have an impact on the timing of the sale, the transition plan of the selling optometrist as well as their potential timing of retirement.
The sale of an optometry practice can be achieved in one of two ways: either through the sale of shares held in the professional corporation or the sale of assets. The option to sell shares of an optometry practice provides a potential opportunity for the selling optometrist to claim a lifetime capital gains exemption on the gain from the sale, provided that certain conditions are met. Early planning for a sale will allow the seller to make sure that the shares of the corporation will qualify for the capital gains exemption, and to engage a specialized legal and accounting team to help them with preparations for the sale. Determining whether to structure the sale as an asset sale or a share sale is usually dependent on the tax implications associated with each option. We routinely assist optometrists who are planning to purchase a practice or sell their practice and we work directly with their accountants and tax advisors to identify the most appropriate strategies in order to minimize the tax consequences associated with the sale or purchase, taking into account the needs and goals of our clients.
If an OPC is preparing for the sale of a practice, prior to the completion of the sale, both the seller and the purchaser must inform the COO in writing of the transaction so that the OPC may continue to hold the Certificate of Authorization while the transaction is in progress. Once the transaction is complete, the purchaser can apply for a revised Certificate of Authorization. If the COO does not receive such notification, the purchaser must apply for a new Certificate of Authorization.
The amalgamation of an OPC with another corporation has a significant effect on the Certificate of Authorization of the amalgamated OPC. Upon amalgamation, a newly amalgamated corporation is created, and the Certificate of Authorization issued to the OPC prior to amalgamation is no longer valid. As such, before the newly amalgamated OPC may practice optometry, it must obtain a new Certificate of Authorization from the COO by completing the application process.
Retirement and Succession Planning
As optometrists approach retirement, there are many considerations to be made regarding the development of an effective succession plan for their optometry practice. Planning for retirement and getting a head start on the development of a succession plan is beneficial to ensure that a sufficient amount of time is devoted to the consideration of several very important issues. When planning to transition into retirement, it will be necessary to determine an appropriate strategy to include the projected proceeds from the sale of the practice as part of the retirement plan. Whether the proceeds are received by the optometrist personally from the sale of shares or as an asset sale (either by the optometrist or his or her professional corporation, depending on their circumstances) with the proceeds likely to be received by the professional corporation, will drive the approach to planning. If a professional corporation sells the assets of the practice, after completing the sale it will need to be re-characterized as an investment holding company. It will be necessary to notify the COO and to file articles of amendment to remove the specific elements that are unique to a professional corporation. We routinely assist optometrists with the development and execution of their succession plan and help identify the most beneficial options available to them in order to ensure a smooth transition into retirement.
Optometrists will often seek advice on estate planning. As optometrists progress in their careers, the planning process becomes more complex and we routinely work with our clients’ tax and financial advisors to address the development of a clear plan. A key component of the estate plan will be the preparation of wills and powers of attorney. Since the majority of optometrists practice optometry through a professional corporation, it may be advisable to have dual wills, which is an effective estate planning strategy used to protect certain eligible assets from estate administration tax, or probate. Shares in a private corporation do not commonly attract a requirement for probate. Engaging dual will strategy allows for the creation of a secondary will with respect to the shares and shareholder loans of the professional corporation to ensure that the professional corporation, as well as other eligible assets, are protected from estate administration tax, which would not be the case if only one will was used. The benefit of dual will strategy is quite desirable for optometrists who practice through a professional corporation, especially as over time a significant portion of the optometrist’s net worth may be held by the professional corporation.
If you would like to discuss your estate plan with us, please contact us and we will be happy to schedule an initial planning meeting.
Other Legal Needs
As optometrists continue in their careers, there are many other legal needs that they may encounter, such as commercial leasing, hiring employees, associate agreements, partnership agreements, and intellectual property issues.
For more information on our services or how we can help, please feel free to contact us.
 All shareholders of an optometry professional corporation must be members of the COO.