Welcome to the January issue of
Blakes Competitive
Edge, a monthly publication of the Blakes Competition, Antitrust & Foreign Investment group.
Blakes
Competitive Edge provides an overview of recent developments
in Canadian competition law, including updates on enforcement
activity by the Canadian Competition Bureau (Bureau), recent
initiatives and key trends.
Key Highlights
While the number of completed merger reviews by the Bureau
during COVID-19 remains significantly below 2019 levels, there has
been an uptick from the reduced activity levels seen earlier in the
pandemic, with an 89 per cent increase in the monthly average of
completed merger reviews since the beginning of Q3 2020.
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In preparation for the upcoming proxy season, issuers should
familiarize themselves with the Canadian proxy voting guidelines
recently published by Institutional Shareholder Services Inc.(ISS) and Glass Lewis & Co. (Glass Lewis),
respectively. This bulletin addresses certain topics covered by the
ISS benchmark policy recommendations and Glass Lewis s proxy
guidelines and shareholder initiatives guidelines, respectively, in
each case for the 2021 proxy season in respect of issuers listed on
the Toronto Stock Exchange (TSX).
PROXY ADVISORY FIRMS ROLE
Proxy advisory firms review and analyze matters put forward for
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Toronto Public Health (TPH) has issued new requirements for businesses and
organizations and issued a letter of instruction to those Toronto
businesses currently permitted to operate under the
Effective immediately, all persons responsible for a business or
organization in the City of Toronto must implement the additional
measures set out below. While these instructions are specific to
the City of Toronto, similar requirements and guidance have and
will be published in other jurisdictions, and many of these
requirements are considered a best practice. Employers should
In its recent decision in
Fairstone Financial Holdings Inc. v. Duo Bank
of Canada(Fairstone), the Ontario Superior Court of
Justice (Commercial List) (Court) addressed the interpretation of
material adverse effect (MAE) clauses and ordinary course covenants
in M&A transactions. Such provisions are of renewed interest to
many prospective buyers, sellers and target companies in view of
the ongoing effects of COVID-19.
KEY TAKEAWAYS
Interpretation of MAE provisions
Burden of proof and constituent elements of an MAE
Rule of contractual interpretation (i.e., contracts should be
read and interpreted as a whole, with a specific determination that
it would be inappropriate to allow the ordinary course covenant to
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While our attention is primarily on health issues during this
global pandemic, climate change remains at the forefront of issues
being addressed by governments, courts and businesses. This
bulletin summarizes some of the recent developments in Canada and
abroad.
FEDERAL GOVERNMENT INITIATIVES
In November 2020, the Canadian federal government introduced
Bill C-12, the
Canadian Net-Zero Emissions Accountability
Act. The bill proposes to legally bind the government to
achieve net-zero emissions by 2050 and require the Minister of
Finance to report annually on key measures that the federal