• Board experience
  • We have advised activists, boards of directors, and special committees on some of the most high-profile mandates. As a result, we understand the legal and business issues that parties face in complex mandates and the nature of the high-stakes, contentious negotiations involved, and have successfully advised our clients by using proven methods when launching an activist defence.

• Leading case law
  • In addition to developing the now widely adopted advance notice by-law in Canada, our team recently developed a proposed by-law for “against” campaigns in director elections for CBCA companies, which has begun to be adopted by companies and has been endorsed by leading proxy advisors.

• Thought leadership
  • Our practice has resulted in the leading case law and legal precedents in Canada on fundamental issues, including empty voting, board duties during a proxy contest, the definition of solicitation, the definition of acting jointly or in concert, independent chairpersons, requisitions, take-over bids and short selling.
• Tried and true playbook
  • Our customized proxy defence playbook provides boards of directors with practical information on how to prepare for and respond effectively to hostile shareholder activity, including identifying strategic tactics that directors and management can use during defensive planning.
• Canada’s reality – courage under fire
  • Based on our extensive experience, we continue to encourage companies and, specifically, boards of directors to support their managers with growth plans. Walied has stated that “if you have a sound thesis, a plan that you believe in — then have the courage to pursue it relentlessly. Maintaining the status quo and relying strictly on return on capital to satisfy shareholders opens your company up as a potential target.” To get results, boards must be courageous to pursue an ambitious thesis and company strategy, even if it means facing off against disgruntled shareholders. With careful planning, coordination, a clear strategy and tools to pivot, boards can prevail.
• Global reach
  • Our Special Situations Team works closely with global counterparts in other jurisdictions who face similar issues. We are able to draw on a wealth of knowledge and resources from leading advisors outside of Canada, including Sidley Austin LLP in the United States.

We have represented issuers and activists in some of the biggest proxy battles, resulting in the leading case law and legal practice.

Activist campaigns

• Sandpiper Real Estate Fund LP and Artis REIT in successfully obtaining an Ontario Superior Court of Justice order requiring First Capital REIT to accelerate holding a requisitioned special meeting of its unitholders.
• PenderFund Capital Management Ltd. in successfully electing new independent directors to the board of directors of Sylogist Ltd.
• JW Asset Management LLC in successfully pursuing a settlement of certain disputes with an exit of its investment in RIV Capital Inc.
• An activist in successfully replacing a majority of the directors on the board of directors and certain members of management of WestCan Energy Corp.

Proxy contest defence 

• Canadian National Railway Company in its defence against TCI Fund Management Limited.
• Suncor Energy Inc. in its defence against Elliott Investment Management LP.
• Parkland Corporation in its defence against Engine Capital Management LLC.
• Crescent Point Energy Corp. in its high-profile defence against Cation Capital Inc.
• NorthWest Copper Corp. on a dissident shareholder matter opposite an activist shareholder alleging certain failures to make disclosure mandated by securities laws.

Hostile M&A and take-overs

• Aimia Inc. in multiple activist attacks, including a hostile insider bid to acquire the issued and outstanding common shares of the company, and in a related challenge by Mithaq Capital SPC to a private placement, which resulted in precedent-setting case law on contested private placements in Canada.
• The special committee of independent directors of Canaccord Genuity Group Inc. in respect of a management-led unsolicited take-over bid of the company.
• The special committee of the board of directors of Yamana Gold Inc. in respect of competing take-over proposals, which resulted in a negotiated arrangement with Agnico Eagle Mines Limited and Pan American Silver Corp.
• Citadel Income Fund in respect of a change of trustee and manager and a redemption of all outstanding units of the fund by Saba Capital Management LP, which resulted in a negotiated settlement.

Short sellers

• An issuer dual-listed in Canada and Australia in its defence against a short-seller attack and other market-related factors that impacted the issuer’s share price.
• A senior issuer dual-listed in Canada and Australia in its defence against a short-seller attack, which resulted in an unprecedented interim cease trade order, which led to an increase in regulatory oversight of abusive short selling in Canada.

Our Canada-wide team comprises leading, expert lawyers who are continually sought after by clients for high-stakes, bet-the-company matters. The team is highly regarded in Canada and globally, and is frequently featured in some of Canada’s largest media publications, including Bloomberg, The Globe and Mail, Reuters and The Canadian Press.