Canada: Capital Markets Report - July 16-30, 2014

From the Regulators

New Rules and Regulations

Recent Amendments to Ontario's Securities Act
By: Joyce Lim

On July 24, 2014, the Building Opportunity and Securing Our Future Act (Budget Measures), 2014 received royal assent, thereby ushering in a series of amendments to the Ontario Securities Act ("the Act"). The amendments include:

1) Expanding the Ontario Securities Commission's Authority to Conduct Compliance and Continuous Disclosure Reviews

1. Expanding the scope of documents and records that can be subjected to the OSC's review. Previously, section 20 of the Act only allowed the Ontario Securities Commission ("OSC") to review the books, records and documents that were required to be kept by a market participant under section 19 of the Act for the purpose of determining compliance with Ontario securities laws. This section has now been repealed and replaced with a provision that grants general authority to the OSC to review any books, records and documents of the market participant, whether or not they are required to be kept under applicable laws, for the purpose of conducting compliance reviews.
2. Non-reporting issuers and mutual funds can be subjected to review. Section 20.1 of the Act is also amended to provide that the OSC may not only conduct a review of a reporting issuer or a mutual fund in Ontario but may also extend such review to non-reporting issuers or mutual funds.

2) Amendments to PART XXI [Insider Trading and Self-Dealing] of the Act. Previously, Part XXI of the Act restricted mutual funds from making investments in "insiders" or entities associated with "insiders". The recent amendments have expanded the restriction to apply to all investment funds. For the purposes of sections 111, 112, 116 and 121.1, an investment fund means a mutual fund in Ontario or a non-redeemable investment fund that is a reporting issuer. 

For more details, please click here to access the recent amendments to the Act.

From the Courts

Corporate Law; Contract Law: Unique Broadband Systems, Inc. (Re) 2014 ONCA 538
By: Greg Hogan

Court of Appeal reiterates that business judgment rule is a rebuttable presumption; lack of expert advice to support, or reasonable, objective justification of, board decisions fatal to reliance

This appeal was of trial findings that (a) Unique Broadband Systems, Inc. ("UBS") was liable to its former CEO Gerald McGoey for enhanced severance, and (b) that Mr. McGoey was not entitled to certain compensation awards and for indemnification for legal and other expenses. UBS held an interest in Look Communications Inc. ("Look"), the primary asset of which was a band of telecommunications spectrum that, after an auction process, sold for a less than anticipated $80 million. It was expected that the sale would increase the share price of UBS. When this did not happen (the price remained in the range of $0.15), the board cancelled its stock appreciated rights ("SAR") plan and established a SAR cancellation payment pool using a price of $0.40 a share. It then also created a bonus pool of $3.4 million. Similar pools were established at Look. All in, the pools contained almost $15 million, which the Court noted was 97.6% the market capitalization of UBS. Mr. McGoey received $600,000 as his SAR cancellation award, $1.2 million from the bonus pool (to be paid on receiving the $80 million) and $5,565,696 in "Restructuring Awards" directly by Look. McGoey later received $200,000 to cover legal fees after shareholders began to object to these other payments. McGoey was removed from office by the shareholders, prompting him to resign as CEO. He argued that he had been terminated because he was not re-elected to the board, entitling him to enhanced severance of $9.5 million under his services agreement with UBS.

Directors need to act in an informed manner, in good faith, and in the best interests of the corporation to take advantage of the "business judgment rule"; documenting the basis of a decision and independent and expert advice will provide evidence of this. At trial, it was determined that Mr. McGoey breached his fiduciary duty to UBS and was not entitled to either his SAR cancellation payment nor his bonus payment. That the business judgment rule would only be of assistance to Mr. McGoey if he acted honestly and in good faith, with a view towards the best interests of the corporation, was the basis on which the actions of Mr. McGoey were examined. The trial judge focused on the use of a share price of $0.40, which was set at a time that the board knew that the market did not view the sale of the spectrum assets as favourably as the board did, and which was set by a compensation committee with no disinterested members as all held SARs (although each disclosed their interest in the SAR cancellation awards). She found "the decision... [was] driven by the board's own self interest, and not the interests of the corporation. There was nothing in it for UBS shareholders. As for Mr. McGoey's bonus, there was no business rationale for it". In short, the $0.40 share price was not objectively set and did not reflect the actual market price. The board decided to implement the SAR cancellation awards without the benefit of any independent or third party advice that might support their decision. Similarly, the bonus pool was created without any expert advice or any comparable or other executive compensation data. No documentation was provided to show how the size of the pool was determined. The Court of Appeal upheld the trial finding that the business judgment rule was of no assistance to Mr. McGoey because he did not satisfy the rule's preconditions of honesty, prudence, good faith, and a reasonable belief that his actions were in the best interests of the company. The Court of Appeal reminds us that the rule is a rebuttable presumption that directors or officers act on an informed basis, in good faith, and in the best interests of the corporation - a board that is engaged in conduct that has no legitimate business purpose and that is in breach of its fiduciary duties will not be provided deference.

Fiduciary duties and corporate law will inform the interpretation of contracts with executives. At trial, it was found that Mr. McGoey was entitled to enhanced severance as a breach of fiduciary duty was not found to be cause or a default, as such terms were defined under Mr. McGoey's services agreement. Interestingly, the interpretation at trial as to what constituted a default under Mr. McGoey's services agreement turned on the use of the word "and", which appeared to require the occurrence of two events as preconditions to a default under the agreement. The trial judge interpreted it in the conjunctive sense. The Court of Appeal found that the interpretation of the agreement at trial would result in a commercially absurd result, whereas interpreting the "and" as "or" did not, which is a principle of contractual interpretation. This was supported by s. 134(3) of the Business Corporations Act (Ontario) which states that no contract "relieves a director or officer from the duty to act in accordance with this Act and the regulations or relieves him or her from liability for a breach thereof". Interpreting the "and" in the conjunctive sense would relieve Mr. McGoey of his obligation to act in a manner that is consistent with his fiduciary duties and receive the enhanced severance under the services agreement.

Legal Briefs and Commentary

LEGAL BRIEFS AND COMMENTARY

Updates and commentary from Canada and around the world.

Trending 2014: An M&A Series

In this video from Trending2014: An M&A Series, partner Gordon Chambers provides an update on hostile M&A in Canada during the first few months of 2014 and discusses several hostile bids in the mining sector.

CBB Knowledge Centre

CBB KNOWLEDGE CENTRE

Tips and guidelines to assist our clients in understanding the law and becoming better drafters.

Disclosure Tip of the Month

Environmental Disclosure
By: Jennifer Hansen and Jennifer Poirier

CSA Staff Notice 51-333 Environmental Reporting Guidance provides guidance on environmental matters that issuers should consider when preparing their continuous disclosure documents. It is intended to assist in determining what information about environmental matters needs to be disclosed, and enhancing or supplementing disclosure regarding environmental matters, as necessary. The key disclosure requirements with respect to environmental matters relate to: (i) environmental risks; (ii) trends and uncertainties; (iii) environmental liabilities; (iv) asset retirement obligations; and (v) financial and operational effects of environmental protection requirements. For instance, management's discussion and analysis ("MD&A") should include a description of what has been, and is reasonably likely to be, the impact of environmental trends or uncertainties on revenues, expenditures and cash flows, and the impact these have on the issuer's financial condition and liquidity (if any). In addition, an issuer may have potential environmental liabilities that are not reflected in the financial statements because their long-term or contingent nature can make them particularly difficult to quantify or because they are not individually material but, together, may indicate an underlying risk or trend that could be material in the long-term. As such, a discussion of material potential environmental liabilities should be included in the MD&A in order to help investors understand the nature of potential liabilities, their likely timing and magnitude and the probability of occurrence. An issuer should also assess whether, due to the nature of its operations, it needs to describe environmental risks in its continuous disclosure documents, such as annual information forms. CSA Staff Notice 51-333 also provides a number of other examples of disclosure with respect to environmental matters which are not specifically included here that issuers should consider when preparing their continuous disclosure documents.

Public Company Activity

Information and intelligence about what public companies are doing in the market

Public Offerings

Equity Offerings

Upcoming Shareholder Meetings

• On August 12, 2014, the shareholders of Regent Pacific Properties Inc. will be asked to vote to approve (i) an acquisition by Cassel Centre Ltd., a majority owned subsidiary of Regent Pacific, of two bays, 2607 and 2611 Ellwood Drive SW from Cassel Properties Ltd.; and (ii) the purchase by Regent Pacific of the remaining 45% of the common shares of Cassel Centre, such that Cassel Centre will be a wholly owned subsidiary of Regent Pacific.
• On August 12, 2014, the shareholders of 0941092 B.C. Ltd. will be asked to vote to approve (i) a plan of arrangement between 0941092 B.C. Ltd. and Acqua Export Acquisition Corp., Breosla Oil Acquisition Corp., Forbairt Development Acquisition Corp., Laidineach Investment Acquisition Corp., Saibhir Art Acquisition Corp. and Teaghlach Asset Acquisition Corp.; (ii) an amalgamation between Acqua Export Acquisition Corp. and CDN Water Corp.; (iii) an amalgamation between Breosla Oil Acquisition Corp. and Global Energy Enhancement Corp.; (iv) an amalgamation between Forbairt Development Acquisition Corp. and Genesis Income Properties Inc.; and (v) an amalgamation between Laidineach Investment Acquisition Corp. and RTrees Producers Limited.
• On August 12, 2014, the shareholders of Lumina Copper Corp. will be asked to vote to approve an arrangement pursuant to which First Quantum Minerals Ltd. will acquire all of the issued and outstanding common shares of Lumina.
• On August 15, 2014, the shareholders of WestCap Investments Corp. will be asked to vote to approve a plan of arrangement involving WestCap and R&R Real Estate Investment Trust and the indirect acquisition by R&R of the "Red Roof Inn" hotel.
• On August 18, 2014, the shareholders of Great Sandhills Terminal Ltd. will be asked to vote to approve an arrangement whereby 101259128 Saskatchewan Ltd., a wholly-owned subsidiary of Canadian Wheat Board, will acquire all of the outstanding Class B voting common shares of Great Sandhills.
• On August 18, 2014, the shareholders of WaterFurnace Renewable Energy, Inc. (formerly WFI Industries Ltd.) will be asked to vote to approve an arrangement whereby NIBE Energy Systems Canada Corp., a subsidiary of NIBE Industrier AB, will acquire 100% of the outstanding common shares of WaterFurnace.
• On August 20, 2014, the shareholders of Arcan Resources Ltd. will be asked to vote to approve a plan of arrangement involving Arcan Resources, Miura Energy Ltd., a subsidiary of Arcan Resources, and 1830575 Alberta Ltd., a company formed by Aspenleaf Energy Limited.
• On August 21, 2014, the shareholders of Coast Wholesale Appliances Inc. will be asked to vote to approve a plan of arrangement involving Coast Wholesale Appliances and CWAL Investments Ltd., pursuant to CWAL will acquire 100% of the outstanding common shares of Coast Wholesale Appliances. 
• On August 22, 2014, the shareholders of Cadillac Mining Corporation will be asked to vote to approve the acquisition of Cadillac Mining by Pilot Gold Inc. by way of a plan of arrangement.
• On August 26, 2014, the shareholders of Winalta Inc. will be asked to vote to approve a plan of arrangement involving Winalta Inc. and CERF Incorporated.
• On September 9, 2014, the shareholders of Golden Queen Mining Co. Ltd. will be asked to vote to approve the proposed joint venture with Gauss LLC to develop and operate Golden Queen's Soledad Mountain Project pursuant to which, Gauss will contribute US$110,000,000 in cash in exchange for a 50% interest in the Soledad Project.

What We're Reading

Corporate Governance

By: Greg Hogan

The International Finance Corporation and the Centre for Effective Dispute Resolution recently published the results of a survey of directors to learn more about their experiences and attitudes towards boardroom disputes. The most common form of dispute encountered was "financial, structural, or procedural workings of the organization", closely followed by the "personal behavior and attitudes of directors". Directors had the most difficulty with issues related to competing factions on the board, handling emotions of those involved and separating personal and company interests. Among the more interesting findings were those related to the kinds of training that directors desired, with training for dealing with different personalities topping the list. A gender difference emerged regarding the kinds of skills training desired, with female directors being more confident in communications skills and male directors being more confident in their negotiation skills (though in both cases over 50% of each gender desired training in these areas). 

Disclosure

Report:  Improving Corporate Disclosure Effectiveness: Ensuring a Balanced System that Informs and Protects Investors and Facilitates Capital Formation (Center for Capital Markets Competitiveness)
By: Greg Hogan

Following growing sentiment about information overload at the SEC, the U.S. Chamber of Commerce's U.S. Chamber of Commerce Finance Corporation released a report in July recommending a number of changes to the disclosure regime in the United States. The recommendations consist of both changes that can be implemented relatively quickly and changes that would need some time to be made. While the Center for Capital Markets Competitiveness makes some recommendations that relate to specific requirements of US disclosure rules, many are equally applicable in Canada, either due to the similarity of the requirement or due to the proposal being conceptually applicable to the Canadian system.

Among the near-term proposals (and how they could apply in the Canadian context) are:

• Elimination of redundant disclosures in annual reports (AIFs) already in current reports (material change reports);
• Elimination of duplication between financial statement disclosure and annual report (AIF) disclosures of material legal proceedings;
• Elimination from annual reports (AIFs) of information on trading price and volumes for listed securities due to ready availability from other sources;
• Elimination from annual reports (AIFs) of information on dividends due to ready availability from other sources; and
• Elimination from annual reports (information circulars) of information on the market returns to shareholders (i.e., performance of securities) due to ready availability from other sources.

Among the longer-term proposals that apply equally in the Canadian context are:

• Overhaul of compensation disclosure and analysis to reduce disclosure to what is needed and avoid lengthy unnecessary disclosure; and
• Elimination of repetitive disclosure of risks, disclosure mandated for financial statement notes and historical information.

What We've Been Up To

Publications, Speaking Engagements

Lorne Silver, Erin Craddock and Robert Cohen will be presenting at The Advocate's Society's Securities Symposium 2014, held in Toronto (with a webcast option) on September 4, 2014. Robert Cohen will discuss the rise of shareholder activism in the Canadian public markets and the corresponding increase in proxy battles. His presentation will review the ways in which a proxy battle may expose persons to civil liability and regulatory sanctions and review strategies to minimize such risks. Lorne Silver and Erin Craddock will discuss recent trends in shareholder activism in Canada, including the increase in US-style activism. Their presentation will focus on issues that are determined through litigation and the current position of the courts on these issues. They will also look at alternative forums for shareholder dissent, including complaints to regulatory bodies.

Marlin Horst will be speaking at the second "Financing Options for Mining Projects workshop", on September 18 & 19 in Toronto. The course will examine key current issues for financing in mining, key elements of stream financing agreements, dept financing principles and products for the mining industry, and many other topics.  

Recent Transactions

We acted for AcuityAds Holdings Inc., formerly Wildlaw Capital CPC 2Inc., in connection with the completion of its qualifying transaction with AcuityAds Inc. AcuityAds Inc. is now a wholly-owned subsidiary of Acuity Holdings. Click here for more details.

We acted for Sulliden Gold Corporation Ltd. in its previously announced plan of arrangement with Rio Alto Mining Limited, pursuant to which Rio Alto acquired all of the issued and outstanding common shares of Sulliden. As part of the transaction, Sulliden shareholders received 0.525 of a Rio Alto common share and 0.10 of a common share in a newly incorporated company listed on the TSX, Sulliden Mining Capital Inc., for each Sulliden common share held. Click here for more details.

We acted for TD Securities Inc. and BMO Capital Markets and a syndicate of underwriters in connection with a public offering of 7,060,000 flow-through common shares of Rubicon Minerals Corporation for gross proceeds of approximately $12 million. The net proceeds of the offering will be used to incur eligible Canadian Exploration Expenses. Click here for more details.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.