Summer Update 2023

Our M&A Guide for 2023

Highly respected legal publisher Chambers and Partners has published the latest edition of its Corporate M&A 2023 Global Practice Guide. We were delighted to once again be invited to be the exclusive author of the Canadian M&A section of this sought after guide. SkyLaw’s full articles on Corporate M&A can be found at the following links:

• Law and Practice in Canada
• Trends and Developments in Canada

This year, the comprehensive guide covers 55 jurisdictions. The entire guide is available to view online and it has a handy “Compare locations” tab for comparing selected topics by jurisdiction. It can also be printed or downloaded here. We welcome you to take a moment to visit the links and enjoy all of the available resources.

We are so PSYCHED!

The SkyLaw team has been hard at work on a number of very interesting M&A, securities and restructuring transactions. One recently announced transaction involved SkyLaw client Gotham Green and Psyched Wellness Ltd., a CSE-listed life sciences company focused on products derived from the Amanita Muscaria mushroom.

Kevin’s various attempts to get into the press release the phrase “We are psyched about the transaction…” were roundly rejected on the basis that dad jokes do not make good disclosure.

Expert Evidence

SkyLaw’s Work with Experts

We work with litigators in a variety of capacities and very often we are called upon to help implement a settlement agreement that involves some type of corporate transaction or reorganization.

We also work with experts giving evidence in litigation matters. A few years ago SkyLaw’s role representing an expert in a securities class action was examined before the Ontario Superior Court of Justice, where Perell J. wrote:

“What occurred in this case, if anything, is to be encouraged not discouraged, because it rather enhances an expert witness’ independence and impartiality and insulates the expert from pressure from a litigant’s lawyer to be a partisan witness.”

Our mandates have included representing senior investment bankers, retired judges, valuators, and other subject-matter experts on a variety of topics. Over the past few months we have been assisting several construction experts in a confidential arbitration proceeding. We love this type of work as we get to do a deep dive on a particular issue and work with experts in their fields.

Kevin’s First Expert Appearance

Last year, Kevin wrote his first expert report for a disciplinary matter before a panel of the Law Society Tribunal Hearing Division. The report addressed questions put to Kevin by counsel to the Law Society about specific types of corporate transactions and the use of trust accounts by corporate lawyers.

A few weeks ago, Kevin made his first appearance as an expert witness before the Law Society panel. At the hearing, Kevin answered questions under oath about the expert report he had prepared and was cross-examined by counsel.

It will be very interesting to see how the panel rules on the matters at issue later this summer. Stay tuned!

Join us in P.E.I. for the Governance Professionals of Canada Conference!

SkyLaw has been a long-time supporter of the Governance Professionals of Canada (GPC) and we have spoken at conferences held in Whistler, Banff and Montreal. This year the annual GPC conference is in Charlottetown from Sunday August 13 to Tuesday August 15 and Kevin and Diana are delighted to be participating in person.

SkyLaw Sponsors the First Plenary Session with Justice Cromwell

SkyLaw is thrilled to be the sponsor of the opening plenary session of the conference with a panel of experts discussing recent governance reports. We had pitched to GPC early on that we could do a presentation on Justice Cromwell’s excellent report on governance for Hockey Canada, which Diana cleverly titled: Boarding in Hockey: Lessons Learned from Justice Cromwell’s Report on Corporate Governance at Hockey Canada. As it turns out, Justice Cromwell was Kevin’s civil procedures professor at Dalhousie University and, following a lunch together in Ottawa, Justice Cromwell kindly agreed to participate in the session (which prompted the session to be moved up to the much-coveted initial position on the agenda).

We have also invited Diana’s father, Professor Chris Nicholls, a distinguished corporate law scholar at Western Law, to moderate the session. The other panelists include Sarah Keyes, CEO at ESG Global Advisors Inc., and Barbra Stymiest, corporate director and former CEO of TMX Group Inc.

Diana Nicholls Mutter to Moderate a Panel on Board Diversity

Diana will also be moderating a panel, titled: Setting the Stage for Board Diversity: What to know and what to do before you recruit. Diana’s LL.M. thesis research focused on securities regulation aimed at increasing the representation of women on boards. The panelists for this session include Professor Lisa Fairfax, Presidential Professor of Law at the University of Pennsylvania Carey Law School; Wendy Cukier, Professor, Entrepreneurship and Strategy, Ted Rogers School of Management, Director, Diversity Institute; Mante Molepo, CEO & Founder of Mante Molepo Consulting; and Dexter John, Chief Executive Officer of Canada, Morrow Sodali.

Both panels are sure to be valuable to anyone interested in corporate governance and will involve informative and topical discussions. The entire conference will be an impressive display of experts and always reflects the local flavour of the host city with local food and entertainment. If you would like to participate in the above sessions, you can register to attend the conference in-person or virtually.

Class is in Session: Secured Lending Presentations at Osgoode and the University of Toronto

This spring, SkyLaw lawyer Andrea Hill returned as a guest lecturer about secured lending to students of each of the Osgoode LLM program and the University of Toronto Faculty of Law. Each two-hour presentation, based on Andrea’s original presentation first given in January of last year, ranged from why parties enter into secured lending transactions, to the mechanics of registering a security interest under the Personal Property Security Act, to the key details for a secured lender to look for after a deal closes.

A piano teacher before she become a lawyer, Andrea loves engaging with her students. Her presentations have included role-playing hypothetical deal negotiations and fielding law-exam style questions, but most importantly, she is focused on making sure the class has fun.

Our Insights

We continue to publish blogs of interest regularly. Here are some recent examples:

Planning for a Shareholder Meeting

Spring is the season for new beginnings, and it is also known in the corporate world as “proxy season” as many public companies hold their annual shareholder meetings from April – June. Our most recent blogs this past spring were designed accordingly:

• We wrote about Letters of Intent and Non-Disclosure Agreements, key documents to consider preparing at the beginning of deal negotiations. Know what to look out for in these important “forerunner” documents, to help set your deal up for success later on.
• We dove into the key considerations for planning an AGM. As avid readers of our exclusive 2023 articles about Canadian M&A published in Chambers and Partners, you may have noted, Canada is a prominent battleground for shareholder activists. Learn about the steps involved in calling and holding a meeting, and how to plan for the unknown.

Corporate Transparency

Canada’s Federal and provincial governments continue to take steps to make the ownership of Canadian companies more transparent. We originally blogged about this last autumn, ahead of beneficial ownership registry obligations that came into force for Ontario corporations at the beginning of 2023.

Since then, the Federal government has introduced Bill C-42, which would require Corporations Canada to make public some information regarding the beneficial owners of federal corporations, such as their name, address for service, and a description of the nature of the individual’s significant control over the corporation.

Bill C-42 is currently in its Second Reading stage in the House of Commons. Whether it makes its way into law, and how it may be updated along the way, remains to be seen.

SkyLaw Gets a Microphone! (Two, actually)

Here at SkyLaw, we’re always thinking about how we can make “the law” more accessible to clients and the general public. The popular insight pieces on Canadian corporate and securities law that we publish on our website is a key part of that initiative. But is there more that we can do that’s also fun and entertaining?

During one of the brainstorming sessions at our recent Winter Retreat, our team landed on the idea of launching a podcast series. Thanks to the creative efforts of Michael Lee, and our not insubstantial investment in impressive new microphones and related podcast paraphernalia, we are well on our way to making “The SkyLaw Podcast” a reality! Each episode will feature a SkyLaw expert providing insight into a specific topic of corporate law and practice. We are so excited for the launch and can’t wait to share our ideas. Our podcast also features amazing original music created and recorded by the inimitable Michael Lee. Stay tuned!

SkyLaw Travels the World!

The SkyLaw team has been racking up travel points so far in 2023!

Tim Travels to the UAE

Tim travelled to the UAE once again in March to conduct a meeting of the board of directors of the Canada-UAE Business Council (CUBC), for which he serves as Board Secretary. Tim was based in Dubai from 2005 to 2014, during which he opened offices for Linklaters and Latham & Watkins. The CUBC is now 10 years old and is enjoying success in advancing significant bilateral initiatives in aviation, agriculture, life sciences, alternative energy and other sectors. CUBC is also working alongside Canada’s diplomatic and trade teams to prepare with our UAE partners for the COP 28 climate conference in Dubai in November. Tim also attended the Investopia Conference in Abu Dhabi. Pictured here is Tim and the conference host, Minister of Economy Abdulla Al Marri, when they first met in Ottawa last September.

Like a scene out of Trains, Planes and Automobiles, Tim’s flight home from Abu Dhabi took him through a snow storm to a closed airport in Chicago, an overnight car ride to Detroit, and then a train ride home from Windsor.

Esta Travels to London & Paris

Esta travelled to (and ate her way through) London and Paris in March! It was Esta’s first time in Europe and she loved it so much that she is headed back in November to continue exploring (and eating)!

Kevin Travels to Sydney & Melbourne

Kevin took off to the other side of the globe in late March and early April as he returned to Australia for the first time in 18 years! Kevin worked at the Sullivan & Cromwell LLP office in Sydney from 2002 – 2005. The firm hosted an alumni event in Sydney and a large client event in Melbourne to celebrate the 40th anniversary of the opening of the first office in Melbourne. Kevin met with many of the top Australian law firms and investment banks and reconnected with clients during his trip (and has 69 people to follow up with!). Kevin is grateful for his experience in the Sydney office where he learned all about the business of law from engagement letters, invoices, hiring staff and doing business development, all while working on cutting edge cross-border transactions.

To top it off, Kevin later went to New York in May for a dinner there with a number of the S&C alumni who weren’t able to make it to Australia.

Priya Gets Married in the Dominican!

To top it all off, Priya travelled to the Dominican Republic in May for her spectacular wedding! The photo above was captured by Kevin at Casa de Campo, where the event took place. We are all so thrilled for Priya and her new husband Adi, along with both of their families. Congratulations Priya!

UAE Update / Canadian Club Fire Side Chat

In June, Tim arranged a “fire-side chat” at the Canadian Club, a thought leaders and newmakers forum in Toronto. It featured CUBC Co-Chairs Jean Charest and Musabbeh Al Kaabi, and was moderated by Sonia Verma, Editor in Chief at Global News and former UAE resident. They reviewed the development and direction of the bilateral trade and investment relationship, and discussed common priorities in energy transition. Both counties value and promote the expansion of the relationship; although last year Canada was already the number one source of foreign direct investment into the UAE. Canada also produces more oil than the UAE, by the way. Tim and the CUBC also met with Ontario Government Ministers Pirie (Mining) and Smith (Energy) and several senior business executives, including TD Bank CEO Bharat Masrani.

Client Spotlight: Zygg

The last few years have been challenging for some of our smaller, start-up clients. In 2022, while many were still recalibrating post-pandemic, we saw interest rates rise quickly, credit markets contract sharply, and the venture capital market slam shut.

We’re delighted to report that our client Zygg, an electric bike leasing and sales company not only weathered the storm but actually came through stronger than ever. Zygg is now three years old as a company; so we call 2022 its “terrible twos”. Despite these challenges, which are significant for a capital-intensive business, Zygg was able to grow and succeed through a combination of cost cutting and rolling-up sleeves, renegotiations with critical suppliers, constant and frank communication with debt providers, and continued support from its existing shareholders. Zygg was also able to land significant national B2B customers which it services from its shops in Toronto and Vancouver.

If you’ve never tried an e-bike, we recommend that you do. They are tons of fun and by far the fastest and most stylish way to get through our busy cities.