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Gender diversity during proxy season and National Instrument 58-101 Disclosure of Corporate Governance Practices (NI 58-101) are reviewed when CSA releases their staff notice regarding compliance for 2018 (as reported in our Timely Disclosure posts in 2017, 2016 and 2015). In celebration of international women’s day, here is a recap of gender diversity promotion and a preview of discussion points to come at the end of proxy season 2018:

Catalyst Report

Increasing the number of women in powerful positions has the potential to transform our workplaces and society.[1]


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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 ensure adequate investor protection.

Corporate Legislation of Dual Class Share Structures:

Pursuant to section 24(3) of the Canada Business Corporations Act (CBCA),[1] when a corporation has only one class of shares, the rights of the holders of those shares are equal in all respects and include the right to vote at any meeting of shareholders of the corporation; to receive any dividend declared by the corporation; and to receive the remaining property of the corporation on dissolution.

Section 24(4) of the CBCA allows for a corporation to have more than one class of shares (Dual Class Share Structure).  The CBCA requires that the rights, privileges, restrictions and conditions attaching to each class of shares be set out; and that the rights to vote, to receive any dividend declared, and to receive the remaining property of the corporation on dissolution be attached to at least one class of shares, but all such rights are not required to be attached to one class.

Although the use of a Dual Class Share Structure is allowed by the CBCA (as well as by provincial corporate legislation, including the Business Corporations Act (Ontario)), securities regulators have imposed some regulations regarding the use of such a structure. For example, the Toronto Stock Exchange (TSX) requires that companies issuing a class of shares with multiple votes have a coattail provision in order to ensure that all investors are treated equally in the case of a takeover[2], and the Securities Act (Ontario) mandates various initial and continuous disclosure requirements for securities issuers.[3]


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Part 3: Reform To Canadian Access to Information

Co-authored by Gianrico DePasquale and Roseanna Dat.

In Part 1, we discussed access to information requests in Canada and in Part 2, we discussed freedom of information requests in the United States.

As a follow up to Part 1, we report that the Government of Canada is in the process of amending the Access to Information Act[1] and is considering potential reform which may have an impact on businesses.  In its Review of the Access to Information Act, the Standing Committee on Access to Information, Privacy and Ethics recommended, among other things, that the Act should apply to institutions that are publicly funded by the Government of Canada.[2] There are three potential options suggested to determine whether an institution would be subject to the Act under the proposed reform.

Proposed Reform

The Information Commissioner of Canada (Commissioner) has proposed the following three options to determine whether an institution that is funded by the Government of Canada should be subject to the Act under the proposed reform:

  • if the institution receives a loan, grant or contribution of $5 million or more;
  • if the source of 50% of the institution’s funding originates (directly or indirectly) from the Government of Canada, and
  • if the institution’s income from the federal government reaches a certain percentage or an absolute threshold higher than $5 million of public funding.

According to the Commissioner, the criteria in option A is proposed to include expenditures, grants and contributions equal to or in excess of $5 million which are voted on by Parliament as separate line items in the Federal budget.[3] The criteria in option B is proposed as it is the method used in both Denmark and Serbia. The criteria in option C is proposed as it is a middle ground or saving grace between options A and B.[4]


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Part 2: US Government – Freedom of Information

Co-authored by Gianrico DePasquale and Roseanna Dat.

In Part 1, we discussed access to information requests in Canada.

In the United States, businesses that interact with the federal agencies as defined in the Freedom of Information Act[1] may be similarly subject to a freedom of information (FOIA) request. A FOIA request compels the federal agency to disclose records in its possession should any person make a formal request. As such, a FOIA request may be used in the United States to gain information about competitors.

Legislative Overview

The goal of the Act is to encourage accountability through transparency. Under the Act, any person, regardless of citizenship or residency, has the right to request access to federal agency records. The Act defines “agency” as any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. The Act defines “records” as any information that would be an agency record maintained by an agency in any format, including an electronic format; and any information maintained for an agency by an entity under Government contract, for the purposes of records management. Any record that a federal agency creates or receives in relation to a business may be subject to a FOIA request, regardless of whether the records contain sensitive, confidential, or proprietary information.

Each state has its own FOIA legislation that applies to state agencies. State agency obligations and exemptions can vary and may be more onerous than the federal Act, as such, different considerations and safeguards may apply.

Protecting Information

FOIA applies to only records that are in the possession of federal agencies, not information. Therefore, images viewed, but not copied or downloaded, are not subject to FOIA disclosure (emails are considered records subject to FOIA disclosure). An information sharing systems that does not allow for copying or downloading of information, may be used to protect information, however, any notes related thereto may be subject to disclosure.


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Part 1: Canadian Government – Access to Information

Co-authored by Gianrico DePasquale and Roseanna Dat.

This is the first part of our series reporting on the potential for companies to seek access to information about business competitors held by governments in Canada and the United States.

In Canada, businesses that interact with Government Institutions as defined in the Access to Information Act[1] may be subject to an access to information (ATIA) request. An ATIA request requires Government Institutions to disclose the records submitted to or created by the Government Institutions, even if held only temporarily. As such, an ATIA request may be used in Canada to gain information about competitors.

Legislative Overview

Pursuant to the Act, any person who is a Canadian citizen or a permanent resident of Canada has a right to, and shall, on request, be given access to any record under the control of a Government Institution. The Act defines “Government Institution” as any department or ministry of the Government of Canada or any parent Crown corporation or its wholly owned subsidiaries, as listed in Schedule 1 to the Act. The Act defines “records” as any documentary material, regardless of the medium or form.  The term record captures any machine readable record (such as email and text messages) and any physical medium that can be written or etched upon.

Each province has its own ATIA legislation that applies to provincial institutions. Provincial institution obligations and exemptions can vary and may be more onerous than the federal Act; as such, different considerations and safeguards may apply.

Protecting Information

The Act applies to only records that are in the possession of Government Institutions, not information. Therefore, images viewed, but not copied or downloaded are not subject to ATIA disclosure (as noted above, emails are considered records subject to ATIA disclosure). An information sharing system that does not allow for copying or downloading of information, may be used to protect information, however, any notes related thereto may be subject to disclosure.


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As the New Year rolls along, so does commentary on executive compensation. According to the Canadian Centre for Policy Alternatives, by 11:47 am on the first working day of 2017 (January 3rd) Canada’s 100 highest paid CEOs on the TSX index had earned the equivalent of the average annual Canadian wage.

Shareholder votes on the executive compensation disclosed in management proxy circulars (“say on pay”) are not mandated in Canada. However, according to the Institute for Governance of Private and Public Organizations, 80% of the largest Canadian companies have adopted the practice voluntarily or as a result of pressure from investors.

Say on pay initiatives have been well under way in many jurisdictions for a number of years and the reviews are in.

International Say On Pay

In the US, under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Securities Exchange Commission requires a mandatory advisory say on pay for top executives compensation for public companies. Under the compensation discussion and analysis section of the proxy statement, shareholders do not vote on bonuses, stock options, retirement pay or other specific elements of compensation, simply an “up” or “down” to compensation.

In the UK, companies with shares on the Financial Services Authority’s List require a binding (rather than advisory) annual say on pay vote by shareholders.


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In light of recent events, it appears that our American friends are taking a greater interest in Canada. The following is a description of some issues that may arise in connection with US agreements being “Canadianized” for use in Canada. Due to the complexity surrounding these issues, and other issues that may arise in connection

On September 28, 2015 ten members of the Canadian Securities Administrators (CSA members), including the Ontario Securities Commission, released Multilateral Staff Notice 58-307 (Staff Notice) entitled Staff Review of Women on Boards and in Executive Officer Positions – Compliance with National Instrument 58-101 Disclosure of Corporate Governance Practices (NI 58-101