In most Canadian M&A transactions, shareholders are entitled (either by statute or court order) to dissent from a transaction and be paid the fair value of their shares. Most dissent and appraisal cases settle, with the result that there are relatively few court decisions of note. Absent settlement, a court must determine the fair value (FMV) of the shares. In the mining context, this task may be complicated by the prospect of valuing exploration lands unsupported by a “NI 43-101” (Standards of Disclosure for Mineral Projects) report or data demonstrating economic mineralization.… Continue Reading
The pre-merger notification transaction-size threshold for 2017 has increased to $88 million from the 2016 threshold of $87 million. As per the indexing mechanism set out in the Competition Act (Act), the pre-merger notification threshold is reviewed annually.
The transaction-size threshold is based on the book value of assets in Canada of the target (or in the case of an asset purchase, of the assets in Canada being acquired), or the gross revenues from sales “in or from” Canada generated by those assets, calculated in accordance with the Notifiable Transactions Regulations under the Act. The Competition Bureau must generally be … Continue Reading
The Canadian Securities Administrators recently released the results of its continuous disclosure review program for the fiscal year ended March 31, 2016, which includes findings and guidance related to disclosure regarding forward looking information, non-GAAP financial measures, information circulars and material contracts – all of which have particular significance in the M&A context.
On July 18, 2016, the Canadian Securities Administrators (CSA) published a summary of the results of their annual continuous disclosure review of reporting issuers for fiscal year 2016, in CSA Staff Notice 51-346 – Continuous Disclosure Review Program Activities for the fiscal year ended March 31, 2016… Continue Reading
The Supreme Court of Canada has released a precedent-setting judgment in which it recognized, for the first time, that there is a general organizing principle of good faith in the performance of contracts throughout Canada: Bhasin v. Hrynew, 2014 SCC 71. The Bhasin case, which was successfully argued by Neil Finkelstein and Brandon Kain of McCarthy Tétrault’s Toronto litigation group, will be very important for Canadian businesses going forward. As … Continue Reading
Over the summer, the British Columbia Securities Commission (BCSC) issued reasons for its previous decision that allowed Augusta Resource Corporation (Augusta) to maintain its shareholder rights plan after a hostile bid was made by HudBay Minerals Inc. (HudBay). The BCSC permitted Augusta’s rights plan to stay in place for an unusually long period of 155 days after HudBay initiated its bid.
HudBay had brought an application to the BCSC asking for the shareholder rights plan to be cease traded under the public interest power of the Securities Act. HudBay argued that the shareholder rights plan was no longer serving … Continue Reading
The following post on the Canadian Appeals Monitor blog may be of interest to readers of this blog: Pay Me Now: Court of Appeal Delivers Lessons on fiduciary duties, the business judgment rule, and executive compensation
The business judgment of directors setting executive compensation was front and centre in the Ontario Court of Appeal’s recent decision in Unique Broadband Systems, Inc. (Re), 2014 ONCA 538 (UBS). Although the decision is based on unique underlying facts, it offers several important lessons on corporate governance.
Summary of Facts
As we described in a previous blog post, the Ontario Court released a decision in March (Champion Iron Mines Limited) in which it held that a fairness opinion that does not disclose the analysis underlying the opinion was inadmissible as evidence before the Court on an application to approve a plan of arrangement. The decision of Justice David M. Brown suggested that companies might need to bolster their disclosure of fairness opinions in order for an Ontario Court to take the opinion into account in a fairness hearing for a plan of arrangement.
In almost every Canadian M&A transaction, the board of directors of the target company, and often also the acquiring company, will expect their financial advisors to provide a fairness opinion to the effect that the price in the proposed transaction is fair to the company and its shareholders from a financial perspective. These opinions are not legally required, but they are commonly used by boards as evidence that … Continue Reading
If your organization is currently thinking about establishing or acquiring a business in Canada, the newest edition of Doing Business in Canada, written by McCarthy Tétrault, will prove to be a valuable resource. The guide provides a broad overview of the legal considerations that non-residents should take into account to help ensure their success as they enter into a business venture in Canada. Each section offers timely information and insightful commentary on different areas of law.
- public offerings and private placements
- take-over bids
During a proxy contest, strategic consideration should be given to strictly abiding by proxy solicitation rules and hawkishly assessing whether your opponent is doing the same. A recent decision provides guidance on factors that a court will consider in determining a seldom litigated issue – when is communication by the company during a proxy contest an illegal proxy solicitation?
Generally speaking, corporate statutes in Canada prohibit the solicitation of proxies unless the sender (board or dissident) provides shareholders with a proxy circular containing prescribed information. Under the Canada Business Corporations Act, “solicitation” is broadly defined to include communication with … Continue Reading
On behalf of the M&A Blog team, I am pleased to announce that our bloggers are at it again…
Welcome to the Retail & Consumer Advisor, which is the newest addition to the suite of blogs offered by McCarthy Tétrault. This newest blog, launched by our Consumer Products & Retail Group, examines a variety of topics, including industry trends, product issues, best practices and the full range of legal developments that affect this dynamic sector.
Canadian M&A Perspectives is pleased to share that for June 2013, McCarthy Tétrault’s blog posts and articles generated the most readership from users of Mondaq for Canada. This is the firm’s second month in a row to be recognized with the award.
Mondaq is an aggregator of legal, financial and regulatory information from more than 80 countries. It publishes and distributes content on its site, via its newsletters and feeds to third-party sites, and through major business systems such as Lexis-Nexis, Westlaw and Reuters. At the end of every month, for each country, Mondaq determines and … Continue Reading
For those who may be interested, McCarthy Tétrault has just launched our sixth blog, the Ontario Employer Advisor. This blog offers the firm’s perspectives on the latest legal developments applicable to the workplace and of interest to our clients, particularly in Ontario. It provides our insights on legislative and regulatory developments, as well as new case law, with practical tips for employers and their human resources professionals when managing the workforce. We welcome you to visit the blog.… Continue Reading