Thrilla in Manila

Thrilla in Manila 

It may not be “Smokin’ Joe” v. The Louisville Lip”. But hopefully MacIntosh v. Waitzer may supply at least some dry-as-dust securities lawyers with a moment or two's entertainment. 

In his second attack on my defense of Heather Zordel’s appointment as Chair of the OSC Board of Directors, Ed Waitzer not only claims that I repeatedly miss the mark, but that I do so in a way that would embarrass any reasonably savvy law student. He even says that I was “disingenuous”. Hmmm.

In fact, it is Ed who, like Sancho Panza, continues to tilt at windmills. In his initial critique, Ed stated “As the Globe article noted, following a negative recommendation of five of the eight part-time commissioners, in early 2021 Heather Zordel was not reappointed by the Ontario government as a part-time commissioner”.  In his second critique, Ed continues to deny that this tells the reader that Ms. Zordel was deliberately not re-appointed (as opposed to taking herself out of the running because of her busy legal practice). He says “I simply observed that her appointment was not renewed (and, in very short order, she re-applied). Words matter.”

OSC appointment fuss is a tempest in a teapot

The following first appeared in the National Post, Jul 25, 2022  

Ed Waitzer’s recent op-ed (“The issue at the OSC is integrity, not debate,” July 14, 2022) expresses surprise and disappointment in my recent op-ed (“Conflict at the OSC: Why the regulator needs to make room for dissent,” July 7, 2022). In that op-ed, I argued that lawyer Heather Zordel’s appointment as non-executive chair of the OSC in March of this year should be met with open arms, as it introduces new points of view into what seems to be a rather intellectually closed shop. I don’t suppose it will come as a shock to Ed Waitzer or anyone else that I am surprised and disappointed at his rebuttal.

To begin with, it contains a number of inaccuracies. It states that Ms. Zordel was denied reappointment to her earlier position (2019-2021) as part-time commissioner. In fact, given her busy legal practice, she took herself out of the running. This puts a rather different complexion on the matter.

Conflict at the OSC — Why the regulator needs to make room for dissent

 The following originally appeared in the National Post, July 7, 2022

Much heat has been generated lately about what’s going on at the Ontario Securities Commission, but, tragically, little light. 

The government’s appointment of Heather Zordel as non-executive chair of the OSC in March has raised some razor-sharp hackles. The Globe and Mail published a story on June 25 that relayed many pious and unflattering incantations related to Zordel’s allegedly questionable behaviour in her previous incarnation as a part-time commissioner at the OSC. Two former part-time commissioners who served with Zordel — Lorie Haber and Craig Hayman — were said to have resigned in protest of her appointment. Readers learned that five of eight part-time commissioners opposed the renewal of Zordel’s place among their ranks.

One of the bones of contention seems to be Zordel’s tendency to occasionally disagree with her fellow commissioners, taking a different view of what protecting investors entails. For example, her critics and the Globe thought it important to highlight that OSC records show Zordel was responsible for “two of only three dissents in OSC enforcement proceedings over the past decade.” 

B.C.’s law allowing directors to be appointed without a shareholder meeting must be changed

B.C.’s law allowing directors to be appointed without a shareholder meeting must be changed

(first published in the Globe and Mail, November 10, 2021)

The goings-on at Rogers Communications Inc. with two competing boards contending for mastery, demonstrates how corporate governance can sometimes resemble a blood sport.

We now have a winner in the battle of the boards, with Edward Rogers coming out on top. Last Friday, Justice Shelley Fitzpatrick of the B.C. Supreme Court held that Mr. Rogers was fully entitled to remove and replace five directors by an instrument in writing signed only by him. Christmas dinner with the Rogers will never be the same.

There are, however, a number of troubling aspects of this decision.

Mr. Rogers’s opponents argued that the outcome of the case should depend not only on the company’s constitution and its interaction with the governing legislation (the Business Corporations Act in British Columbia, where Rogers Communications is registered).

Rather, his opponents argued, the court should have regard to a reasonable shareholder expectation that company directors would only be removed and/or replaced as they always had been in the past: at a shareholders meeting.

These shareholder expectations were furthered by Rogers Communications’ repeated public statements that it is committed to “good” or “sound” corporate governance practices.

Governance issues loom large in Rogers court ruling

 The following first appeared in the Globe and Mail, November 2, 2021

The internecine strife in full swing at one of the country’s largest corporate megalodons has spilled out into the streets. This reality show pits Edward Rogers against his mother and two sisters (all of whom are directors of Rogers Communications) and the five “independent” directors on the Rogers board. There’s much more at stake, however, than tabloid-style prurient interest. Important issues of corporate governance loom large.

A key issue is whether Edward Rogers (who controls 97.5 per cent of the votes) had the power to unilaterally remove the five independent directors and replace them with his own nominees – both ostensibly effected by a written resolution signed only by him.

If Rogers was incorporated in any province other than British Columbia, the answer would be an unambiguous no. Under the federal template (the Canada Business Corporations Act), which has been adopted by most of the provinces and territories, removal of directors can only occur by a majority shareholder resolution passed at a shareholders meeting, or by a resolution in writing signed by all shareholders entitled to vote.

COVID-19: An Unsympathetic Predator

Covid-19: An Unsympathetic Predator

Just when we thought we had Covid cornered, it seems to have executed a delicate Cabriolé and is now poised to begin the dance anew. 

Covid cases have been rising dramatically in many parts of the world, including Canada. In Ontario, in the last half of July, the incidence of new daily cases fell as low as 119, and the 7-day moving average to 157. As of August 31, however, new cases per day stood at 656 and the 7-day moving average at 701. The increase in cases puts Ontario into a position roughly similar to that in June of this year, and substantially higher than one year ago. 

The culprit? At last in part, the Delta variant. Delta exhibits far higher viral loads than other strains and is on the order of twice as transmissible. It is responsible for new outbreaks in India, the UK, South Africa,  the United States, Asia, and elsewhere. While Delta currently constitutes only about 3.6% of all Covid cases in Ontario, Toronto is the country’s leading Delta “hot spot”, and it seems likely that it will not be long before we are jumping on the Delta bandwagon. 

The Boushie/Baptiste Family's Complaint Against the RCMP

 Originally published on April 6, 2021 in Policy Options

The under-resourced Civilian Review and Complaints Commission for the RCMP did a valiant job in substantiating the discriminatory treatment of a Cree mother grieving the killing of her son. In its <a href="" and interim reports, the commission also raised a number of questions about how the investigation into 22-year-old Colten Boushie’s death was handled by police.

Still, the commission’s recommendations for improvements, including for cultural awareness training of officers, were not terribly ambitious. Indeed, the RCMP in Saskatchewan was able <a href="">quickly to respond</a> that all of its recommendations would soon be implemented.

Much more reform of the RCMP is, however, required to improve its relations with Indigenous peoples and respond to systemic discrimination against them. These reforms need to go far beyond cultural awareness. They should attempt to change the very culture and governance of the RCMP.

MAID Bill C-7 Is an Affront to Equality

MAID Bill Is an Affront to Equality

Archibald Kaiser, Isabel Grant, Trudo Lemmens & Elizabeth Sheehy

Toronto Star editorial March 11, 2021

Canada’s legal system has an ugly track record on mental illness: exclusionary immigration laws; involuntary sterilization; restrictive marriage and voting statutes; debacles of institutionalization, deinstitutionalization and criminalization; and casualties of the war on drugs. Our nation has abandoned Canadians with mental illness to poverty, isolation and substandard living conditions. Now, based on a misguided interpretation of equality, Parliament intends to pass Bill C-7 and provide medical assistance in dying (MAID) to those suffering from mental illness.

In extending MAID to persons with disabilities whose deaths are not reasonably foreseeable, Bill C-7 exposes the shallowness of Canada’s commitment to the human rights of persons with disabilities. And while people with mental illness were initially protected, Parliament will further destabilize the equality and security of people with mental illness by including them in the legislation through a sunset provision in two years.

How Parliament and our Federal Government are Playing MAID Politics with the Lives of People with Mental Illness

Our government is asking parliament to ignore its statutory-based commitment to evidence-informed policy making under the existing MAID law

If the majority of Canadian Senators, some psychiatrists, and our government have it their way, physicians in Canada will soon be asked to offer patients with mental illness the option to end their lives as a therapy for their mental health related suffering. The Canadian Senate removed the clause that excluded mental illness from Bill C7, a bill which extends “medical assistance in dying” [MAID] (the increasingly less accurate Canadian euphemism for euthanasia and assisted suicide) to persons who have a disability or chronic illness but who are not close to their natural death. The government just announced it largely accepts the Senate’s amendment for inclusion of mental illness, which would enter into force with a sunset provision of two years. What is extraordinary is how the government thereby allows an unelected Senate to introduce a sweeping broadening of MAID, and this while the House of Commons itself had no detailed evidence-informed review and debate on this specific issue, since it was not part of the original Bill.