Timely Disclosure

Timely Disclosure

Updates and Commentary on Current issues in M&A, Corporate Finance and Capital Markets

Category Archives: Corporate Governance

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Public Company Directors Take Note: Canadian Securities Regulators weigh in on Material Conflict of Interest Transactions

Posted in Corporate Governance, Securities Regulatory Authorities
On Thursday, July 27, 2017, staff of the Ontario Securities Commission and its counterparts in Québec, Alberta, Manitoba and New Brunswick (Staff) published important guidance on Staff’s expectations of market participants, including boards and their advisors, in material conflict of interest transactions.[1]  The guidance highlights the important role of public company directors in such transactions,… Continue Reading

The Supreme Court of Canada rules on the personal liability of corporate directors

Posted in Corporate Governance
(The full version of this bulletin was originally published on Fasken.com – “The Supreme Court of Canada rules on the personal liability of directors in the context of the oppression remedy” – July 17th, 2017.) The Supreme Court of Canada rendered a decision in Wilson v. Alharayeri, in which it discusses situations that could lead to the personal liability of… Continue Reading

Should Securities Regulators Play a Larger Role in Canadian Capital Markets?

Posted in Corporate Governance, Stock Exchanges
Investor Protection & Dual Class Share Structures The recent initial public offerings (IPOs) of major players in the Canadian market, including Aritzia in September 2016, Freshii in January 2017 and Canada Goose in March 2017, have sparked debate about the use of dual class share structures and whether regulatory reform is necessary in order to… Continue Reading

A Radical Shift to Say-On-Pay under OBCA’s Bill 101

Posted in Continuous & Timely Disclosure, Corporate Governance
Shareholder Control over Executive Compensation under Bill 101 Bill 101, An Act to Amend the Business Corporations Act (Bill 101), proposes a number of updates to the Ontario Business Corporations Act (OBCA). Introduced as a private member’s bill in early March, Bill 101 aims to shift power to shareholders through amendments in areas such as… Continue Reading

Majority Voting: Latest Developments

Posted in Continuous & Timely Disclosure, Corporate Governance, Directors & Officers
Stephen Erlichman recently wrote “Majority Voting: Latest Developments in Canada”, a short piece published in the March 22 edition of the Harvard Law School Forum on Corporate Governance and Financial Regulation. The article explains the latest developments in Canada with respect to 1) the Toronto Stock Exchange’s new guidance with respect to its majority voting listing requirement,… Continue Reading

Women on boards: Alberta adopts new disclosure requirements

Posted in Corporate Governance, Directors & Officers, Securities Regulatory Authorities
Disclosure requirements regarding the representation of women on boards and in senior management adopted in Alberta The Adoption On December 15, 2016 the Alberta Securities Commission (ASC) adopted amendments to National Instrument 58-101 Disclosure of Corporate Governance Practices (NI 58-101) and Form 58-101F1 Corporate Governance Disclosure (together with NI 58-101, Amendments).  The Amendments will come… Continue Reading

New Land Ownership Register Requirement For Ontario Corporations

Posted in Corporate Governance
On December 10, 2016, Bill 144, the Budget Measures Act, 2015 will come into force with potentially onerous administrative consequences for Ontario corporations. Bill 144 will enact the Forfeited Corporate Property Act, 2015 (FCPA) which will amend the Business Corporations Act (Ontario) (OBCA) in several important ways. The Ministry of Finance discussed the intent behind… Continue Reading

Fasken Martineau Publishes Directors’ Handbook for Shareholder Activism

Posted in Corporate Governance, Directors & Officers
Canada has proven to provide fertile ground for shareholders activism, in part due to a regulatory landscape that could be viewed as more shareholder friendly than some other jurisdictions. As a result, it is perhaps not surprising that activists have achieved significant success in Canada in recent years. It is apparent that shareholder activism is… Continue Reading

“Sorry, nothing personal” – the personal grievance exemption in Koh v Ellipsiz Communications Ltd.

Posted in Corporate Governance, Directors & Officers
Where does one draw the line between personal and business? It’s a timeless question, and was also the subject at issue in Koh v Ellipsiz Communications Ltd., 2016 ONSC 7345 (Koh), decided by the Ontario Superior Court of Justice on November 28, 2016. The facts of the case are these: Ellipsiz Communications Ltd. (ECL) is… Continue Reading

The SEC’s Proposed Amendments regarding the Use of Universal Proxies

Posted in Contested Situations, Corporate Governance, Securities Regulatory Authorities
In today’s marketplace, most shareholder voting is done by way of proxy. Few shareholders choose to attend shareholder meetings in person. Under the current rules of the U.S. Securities and Exchange Commission (SEC), shareholders who attend meetings in person typically receive a universal ballot, which allows shareholders to choose from a complete list of all… Continue Reading

The Rise of Advance Notice Provisions in Canadian Corporate Bylaws

Posted in Corporate Governance
New Paper Discusses the Rise of Advance Notice Provisions in Canadian Corporate Bylaws In recent years many Canadian firms have amended their corporate bylaws to include advance notice provisions (ANPs). ANPs provide for advance disclosure from shareholders who propose to nominate directors at a shareholders’ meeting. As recently as 2011, no Toronto Stock Exchange (TSX)-listed… Continue Reading

2017 ISS and Glass Lewis Updates

Posted in Corporate Governance, Proxy Voting, Stock Exchanges
Institutional Shareholder Services (ISS) and Glass, Lewis & Co. (Glass Lewis) have both released updates to their Canadian proxy voting recommendation guidelines for the 2017 proxy season. The following summary outlines the significant changes made by ISS (ISS Policy Updates) and Glass Lewis (Glass Lewis Guideline Updates) to their respective Canadian proxy advisory guidelines. ISS… Continue Reading

Lessons from Trump’s Victory: 10 Questions that every target of shareholder activism should be asking itself

Posted in Contested Situations, Corporate Governance
In light of Donald Trump’s unorthodox campaign and unexpected victory, it may be worthwhile to consider whether there are any strategy lessons for those engaged in shareholder activism.  After all, a proxy contest is essentially a form of political campaign. Is angry rhetoric on the part of the activist more galvanizing than reasoned argument? In… Continue Reading

Canadian Issuers Continue To Have Success Against Activist Investors

Posted in Corporate Governance, Directors & Officers, Elections of Directors, Proxy Voting
As noted in the Globe and Mail’s recent article, “In Canada’s boardrooms, activist investors are striking out” (subscription to the Globe and Mail required), Canadian listed public companies have continued to have success against activist investors. In fact, since January 1, 2015, Canadian listed issuers have a perfect record against “professional” activists in formal proxy contests,… Continue Reading

Bill C-25: sweeping changes to corporate governance

Posted in Corporate Governance, Directors & Officers, Elections of Directors, Stock Exchanges
Bill C-25: Major changes proposed to director elections and other governance matters for CBCA reporting issuers On September 28, 2016, the federal Minister of Innovation, Science and Economic Development introduced Bill C-25, An Act to amend the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-profit Corporations Act, and the Competition Act. Bill… Continue Reading

Is There Method in Seagate’s Madness in Inviting an Activist Wolf into the Fold?

Posted in Contested Situations, Corporate Governance, Mergers & Acquisitions
Seagate Technology’s Unusual Alliance with ValueAct Capital: Is There Method in Seagate’s Madness in Inviting an Activist Wolf into the Fold? Last month, Seagate Technology plc, an $11 billion company in the data-storage business, announced a secondary block trade in which it facilitated the transfer of roughly 9.5 million ordinary shares, representing an approximate 4% stake in… Continue Reading

Results of Gender Diversity and Term Limit Disclosure Review Released

Posted in Continuous & Timely Disclosure, Corporate Governance, Securities Regulatory Authorities
Securities Regulatory Authorities Release Results of Gender Diversity and Term Limit Disclosure Review Securities regulatory authorities in Ontario and nine other provinces and territories of Canada published CSA Multilateral Staff Notice 58-308 Staff Review of Women on Boards and in Executive Officer Positions – Compliance with NI 58-101 Disclosure of Corporate Governance Practices on September… Continue Reading

Hemostemix Proxy Contest: Will Dissidents Succeed in Making a Clean Sweep of the Boardroom?

Posted in Corporate Governance, Directors & Officers, Proxy Voting
On August 22, 2016, a group of shareholders commenced a proxy contest to change the entire board of Hemostemix Inc. (Hemostemix), a widely-held, micro cap, clinical-stage biotechnology company (TSXV:HEM, OTCQX:HMTXF). Hemostemix’s business activities focus on the development and planned future commercialization of ACP-01, a proprietary, blood-derived cell product designed to treat critical limb ischemia, a… Continue Reading

The AMF Decides Not to Offer Financial Compensation to Whistleblowers

Posted in Corporate Governance, Securities Regulatory Authorities
On February 18, 2016, the Autorité des marchés financiers (AMF) announced that it will not offer financial rewards to whistleblowers who report violations of the laws administered by the AMF. This decision follows careful analysis of the measures implemented by the regulatory organizations of other jurisdictions. The AMF determined that financial rewards were not an… Continue Reading

Market Intelligence? The Limits of Market Custom and Why Market Practice May not be Best Practice

Posted in Contested Situations, Corporate Governance, Mergers & Acquisitions
The views expressed in this post, as in all of my posts, are mine alone and should not be taken to represent the views of Fasken Martineau DuMoulin LLP. “That’s off market.” As a deal lawyer, I’ve heard that phrase more times than I care to remember.  It’s supposed to be a knock-down argument.  We’re… Continue Reading

CSA Propose to Significantly Increase Obligations of Registrants in Canada

Posted in Continuous & Timely Disclosure, Corporate Governance, Securities Regulatory Authorities
The best interest standard for registrants has been on the Canadian Securities Administrators’ (CSA) radar for the past few years. On October 25, 2012, the CSA published CSA Consultation Paper 33-403 The Standard of Conduct for Advisers and Dealers: Exploring the Appropriateness of Introducing a Statutory Best Interest Duty When Advice is Provided to Retail… Continue Reading

Ontario Securities Commission Proposes Whistleblower Program

Posted in Continuous & Timely Disclosure, Corporate Governance, Directors & Officers, Securities Regulatory Authorities
The Ontario Securities Commission (OSC) has proposed OSC Policy 15-601 Whistleblower Program (Policy), which is designed to encourage individuals (whistleblowers) to report to the OSC information regarding serious misconduct related to securities or derivatives, with the prospect of receiving monetary awards in certain circumstances (whistleblower awards). Under the Policy, any whistleblower may submit information regarding… Continue Reading