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With the COVID-19 outbreak still ongoing, many public issuers are fighting to keep their business alive, while others are trying to reinvent their modus operandi or simply seeking new business opportunities. Regardless of the situation, executive teams are attempting to make the right decisions in an environment where no playbook exists. In such circumstances, it is of vital importance to maintain proper disclosure as regulators expect more — not less — from public issuers as they look to protect investors and foster efficient financial markets.

In a recent bulletin, we highlighted the guidance provided by the U.S. Securities and Exchange Commission relating to the disclosure public issuers ought to make in connection with the coronavirus disease pandemic.

On May 6, 2020, the Canadian Securities Regulators (“CSA”) issued their own set of guidelines. The CSA’s statement came in the form of a PowerPoint presentation detailing its expectations in terms of the continuous disclosure obligations of reporting issuers in relation to the effects of the COVID-19 pandemic.
Continue Reading Canadian Securities Regulators Provide Guidance on Public Disclosure in Time of COVID-19

The author wishes to thank Jean-Michel Lapierre, Jean-Pierre Chamberland and Gilles Leclerc for their advice and contributions.

Everything has changed. Not so long ago, we were continuing the longest winning streak in market history -11 years of bull market. Now, things normally taken for granted are no longer possible: planes no longer fly, cars no longer circulate, supply chains no longer manufacture goods, and entire cities are shut down around the world.

Every day, the public is overwhelmed with information regarding COVID-19. Companies are actively monitoring the situation and are constantly assessing the impact of the pandemic on their businesses. With business conditions, epidemiological forecasts, and rules of conduct in near-perpetual flux, the need for frequent and transparent communication with investors and shareholders—now mostly digital—has only intensified in the last weeks.

On March 20, 2020, Fasken published an article relating to disclosure considerations in Annual Information Forms, Management’s Discussion & Analysis, and other public documents. In light of the rapidly evolving circumstances, we would like to provide an update regarding recent developments concerning the disclosure of risk factors.
Continue Reading Update – Public Disclosure in the Time of COVID-19

On Monday, March 23, 2020, the Quebec government announced that as of midnight Tuesday, March 24, all non-relevant/non-essential businesses and commercial activity in the province will be on “pause” – essentially, shut down – until April 13. If you operate or own a business, this measure, together with Covid-19, will inevitably disrupt your supply chain and production process, will isolate your workforce, and, perhaps, negatively impact your financial forecasts.

This article examines if and how, under the laws in Quebec, a party to a contract could claim COVID-19 and/or the government shutdown of your business, as a force majeure allowing one to put an end to, or temporarily suspend, its contractual obligations.

The law in Quebec provides that, where an event is determined to be a force majeure, the debtor is released from performing its contractual obligations and from liability, in whole or in part and either temporarily or permanently. This legal provision may be modified by the terms of a contract by providing specifically for a force majeure clause allowing a party to be excused from the performance of its obligations, in whole or in part, or to suspend said performance because of the occurrence of some specified event or condition. Whether contained in a contractual clause or not, each situation must be assessed on a case-by-case basis to determine the effect of a given situation. Even if contained in a contract, clauses vary from one to another and must be carefully analysed. Clauses that are silent regarding pandemics, epidemics and other disease outbreaks are likely to be insufficient for a force majeure defense due to COVID-19. If, on the other hand, the force majeure clause clearly covers a pandemic such as COVID-19, parties seeking to invoke the provision will have a lower burden of establishing that the event was unforeseeable. In addition, the coronavirus may qualify as a force majeure event when broader wording such as “Act of God,” or “circumstances beyond a party’s reasonable control” is included in the contract.
Continue Reading COVID-19, Government order to shut down operations and Force Majeure Clauses. What Does It Mean? What Can You Do?

COVID-19 or coronavirus: everybody thinks about it, reads about it and talks about it, and, yet, we still ignore the full impact it will have on the world. So far, the outbreak of the virus disrupted supply chains, closed stores and resulted in quarantines across the globe. On March 11, 2020, the World Health Organization