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Home > Our Insights > Toward More Transparency: 3 More Key Changes to the Canada Business Corporations Act (CBCA)
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Toward More Transparency: 3 More Key Changes to the Canada Business Corporations Act (CBCA)

Published:

September 12, 2019

Author(s):

  • Julie Robinson

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Public companies incorporated under the Canada Business Corporations Act (CBCA) escaped the new “register of individuals with significant control” requirement that applies to private CBCA companies as of June 13, 2019, but they’re facing changes too. The changes reflect ongoing efforts to modernize the CBCA and increase corporate transparency, which could also have the effect of enhanced shareholder engagement. Here’s a look at three (more) key changes to the CBCA that affect public CBCA corporations.

1. Shareholders get a “Say on Pay”

Shareholders of public CBCA corporations will get a non-binding “say on pay” vote on the corporation’s approach to director and senior management remuneration. In line with the “say on pay” advisory vote some public companies already conduct annually as a best practice, certain CBCA corporations will be obligated to develop an approach to director and senior management remuneration, place it before the shareholders for a vote at each annual meeting and disclose the results of the vote. The vote isn’t binding on the corporation, but it does offer it the opportunity to gauge and react to shareholders’ views on the board’s approach to executive compensation, and possibly foresee shareholder activism.

Tucked into the federal omnibus budget bill, Bill C-97, this obligation isn’t yet in effect, and there’s no clear indication of when it will be. The corporations and senior management members to which this obligation applies also haven’t yet been defined, and this will only be clear after the federal government introduces and effects regulations following a public consultation period. However, it’s likely they will be consistent with the regulations relating to Bill C-25’s diversity disclosure requirements, which apply to distributing corporations, and define senior management members as executive officers per Canadian Securities Administrators’ National Instrument 51-102, Continuous Disclosure Obligations.

2. More sharing with Shareholders

Shareholders of public CBCA corporations will also get more information.

The mandatory and expansive director and senior management diversity reporting in Bill C-25 the federal government introduced in 2016 will finally kick in for all distributing corporations – but notably, unlike similar existing requirements under securities laws, venture issuers aren’t exempt from this new CBCA obligation. Effective January 1, 2020, all distributing corporations must provide shareholders with information about diversity among its directors and members of senior management, including disclosure relating to women, Aboriginal Peoples, persons with disabilities, and members of visible minorities.

In addition, Bill C-97 will require, effective on an as-yet undetermined future date, certain corporations (as with say-on-pay, not yet defined but likely to be those to which Bill C-25’s diversity reporting obligations apply) to place before their shareholders at each annual meeting reports concerning:

  • The well-being of employees, retirees and pensioners.
  • The recovery of incentive or other benefits included in directors and senior management members’ remuneration.

3. Broader stakeholder interests à la BCE

More stakeholders of both public and private CBCA corporations might have a better shot at having CBCA corporate directors and officers consider their interests with Bill C-97. The CBCA now codifies the ability of CBCA corporate directors and officers to consider the interests of a broader range of stakeholders when fulfilling their duty to act in the best interests of the corporation. Traditionally, directors and officers considered the best interests of the corporation and those of its shareholders to be synonymous. However, the Supreme Court of Canada’s 2008 decision in BCE Inc. v. 1976 Debentureholders broadened this to include the consideration of interests of other stakeholders. Bill C-97 amended the CBCA as of June 21, 2019 to reduce to writing this ability of directors and officers to consider other stakeholder interests, including those of:

  • Employees, retirees and pensioners.
  • Creditors, consumers and governments.
  • The environment.

Please contact your McInnes Cooper lawyer or any member of the Corporate Finance & Securities Law Team @ McInnes Cooper to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2019. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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    CASL’s anti-spam sections came into force on July 1, 2014. Every organization that CASL affects should now be complying with it – and their…

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    Publications
  • The Top 5 Corporate Governance Best Practices That Benefit Every Company

    Sep 16, 2014

    Many believe that only public companies or large, established companies with many shareholders need to be concerned about, or can benefit from,…

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    Publications
  • Canadian Treaty Shopping Proposal Shelved Pending Final OECD Recommendation, First To Be Released September 16

    Sep 11, 2014

    The Canadian federal government has been concerned for some time about “treaty shopping” by non-residents – the practice of non-residents…

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    Publications
  • Joining the Crowd – NS & NB Consider Crowdfunding

    Jun 11, 2014

    Note: For an update on Crowdfunding, read: New Kid on the Block – Crowdfunding Joins Traditional Equity-Based Funding Options for Start-ups…

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    Publications
  • Legal Update: Risky Trading – Insiders and Potential M&A’s

    Nov 1, 2013

    Recent decisions of securities regulators and amendments to Canadian securities laws demonstrate regulators' lowered tolerance for insiders who…

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    Publications
  • General Security Agreements – Tips and Traps

    Aug 28, 2013

    A general security agreement (GSA) is the most common form of personal property security used in the Atlantic Provinces to secure commercial…

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    Publications
  • Franchise Questions: What do I need to know about moving into new markets?

    Jun 7, 2013

    In Franchise Canada’s Spring 2013 “Viewpoints” feature, McInnes Cooper franchise lawyer Michael Melvin answers this question for…

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    Publications
  • A Practical Analysis of “Material Fact”

    May 21, 2013

    In its April 2013 decision in Re Stan, the Alberta Securities Commission provides issuers with a practical approach to the assessment of both a…

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    Publications
  • A White Paper on Reforming Canada’s Transportation Policies For the 21st Century

    Feb 8, 2013

    While much of the developed world struggles with debt and chronically low growth, Canada, one of the best-performing members of the G-7,…

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    Publications
  • CSA Staff Notice 11-318: Guidance for Cease Trade Order Database Users

    Aug 27, 2012

    Introduction and Purpose Staff of the Canadian Securities Administrators (CSA Staff or we) are publishing this Staff Notice (the Notice) to…

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    Publications
  • Canadian Securities Administrators Adopt Rule For Over-The-Counter Issuers

    Jun 1, 2012

    Multilateral Instrument 51-105, Issuers Quoted in the U.S. Over-the-Counter Markets will come into effect on July 31, 2012. Once effective,…

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    Publications
  • Alert: Supreme Court of Canada Finds Proposed Canadian Securities Act Unconstitutional

    Dec 22, 2011

    On May 26, 2010, the Canadian federal government released the proposed Canadian Securities Act (the Act) which would, among other things, create…

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    Publications
  • Investor Readiness

    Nov 1, 2011

    Entrepreneurs need to be ready for due diligence, so it’s essential to involve legal advisors and accountants early in the process. Click…

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    Publications
  • Accounting Firms – Do they need to be registered as exempt market dealers

    Oct 6, 2011

    In 2009 Canadian securities regulators changed the rules relating to securities “registration” – these rules determine who is required to…

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    Publications
  • A Closer Look at the Regulations Under the New Brunswick Franchises Act

    Oct 1, 2010

    McInnes Cooper franchise lawyer Michael Melvin highlights some of the significant features of the Disclosure Documents Regulation and the…

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    Publications
  • What are electronic disclosure documents and why and how may they be used?

    May 31, 2010

    In Franchise Canada’s May/June 2010 “Ask A Legal Expert” feature, McInnes Cooper franchise lawyer Michael Melvin answers this question for…

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    Publications

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