Fall Update 2023
November 2, 2023
In this Edition…
This Fall Update, and our blogs curated by the inestimable Andrea Hill, are best enjoyed in a comfy armchair, in front of a fireplace, with a hot apple cider or a pumpkin spice latté (“PSL” for the cool kids out there) in hand.
Stay tuned while we tell you about what’s been happening here at SkyLaw, and recent legal developments such as new disclosure obligations in public company filings and what the Ontario Superior Court just said about “fair value”. Don’t forget to check out the intros to our new team members, our spotlight on some of our really great clients, and pictures from some recent fun trips to meet clients and contacts.
Please feel free to call any of us any time you are looking for help with any of the following:
- Launch your business: We can help you choose and implement the appropriate legal structure, sort out your shareholder agreement and put in place equity incentive plans. We recently helped the founders of Doormat, highlighted below, and Toronto-based AI entertainment company, Transitional Forms Inc., with their new ventures.
- Equity capital raising: We can help you with all types of equity investments including friends and family rounds, angel and private equity investments and public company offerings. As an example, we have worked with Solar Panda since incorporation including its recent Series A round.
- Debt financings and restructurings: We are frequently called upon to take clients through all manner of debt financings as well as restructurings, like the NewGen Resources Lending transaction described below and the iAnthus restructuring we completed last year by way of plan of arrangement.
- Cross-border transactions: We often help foreign-based clients expand into Canada. Cross-border M&A is our sweet spot, and we love working with public companies making acquisitions in Canada, as we have done for NYSE-listed Herc Rentals, and private equity firms making investments in Canada, as we have done for Gotham Green.
- Representing stakeholders: We can provide independent legal advice to shareholders and other stakeholders of both private and public companies, as we did on the controversial Turquoise Hill transaction.
- Corporate services: We have a renowned corporate services team and we are growing! Maria joined us recently (see below) and we plan to do more hiring. Our experienced team works efficiently and seamlessly to help clients with incorporations, reorganizations, limited partnership formations and all types of entity management matters.
Client Spotlight: Doormat and Innovative Legal Technology
SkyLaw has been working with the incredible founders at Doormat Real Estate Services Inc. to help them set up their modern real estate law firm. Doormat provides a simple and transparent experience to working with your real estate lawyer and to bring your residential property transaction from offer to close. The Doormat team is on a mission to simplify the home buying and selling process by pairing modern technology with top tier service.
SkyLaw helped in the early stages of the negotiation process with the Law Society of Ontario for approval as a participant of the Access to Innovation Program. The A2I program allows companies like Doormat to operate in a regulated space in a way that protects the public. Early this summer, Doormat announced that it was the second company to be approved by the Law Society of Ontario! While Doormat is closing real estate transactions, it is opening doors for innovative legal technology.
We have been thrilled to participate in the journey with the Doormat team as they grow in the Ontario market!
For more information on Doormat, visit them here: www.doormat.ca.
NewGen Resource Lending and Rambler Mining and Metals
After a long ride and a lot of hard work, we congratulate our client NewGen Resource Lending on the successful restructuring of its investment in Rambler Metals and Mining.
Rambler operates a gold and copper mine in Newfoundland, Canada. It was restructured through a Companies’ Creditors Arrangement Act (“CCAA”) proceeding. In the end it is a good result for NewGen, its fund participants, the other senior stakeholders including debtor-in-possession (DIP) lenders, and of course Rambler itself. Rambler’s assets and business are to be acquired by Auteco (ASX:AUT), an Australian-based and listed junior mining company.
Beginning in 2019 and 2020, Tim Ross advised the principals of NewGen Resource Lending on the establishment of a novel credit opportunities fund dedicated to the mining sector, as well as on its debut loan, a senior note facility for Rambler. NewGen’s approach involved a stretched-senior secured credit, along with exposure to the underlying mineral in the form of (in the case of Rambler) gold-equivalent payments. NewGen also took on advisory and arrangement functions to assist with Rambler’s streaming and other requirements. This approach provided Rambler with greater stability. Complex, four-tier intercreditor arrangements were required, involving senior debt, streamers and off takers.
NewGen worked closely with Rambler and with the groups that ultimately became the DIP lenders in order to commence and complete a constructive, creditor-supported sales and investment solicitation process led by the court-appointed monitor, Grant Thornton LLP. In this case, exhaustive due diligence, careful structuring and documentation, engagement with all stakeholders, and proactive risk management delivered an excellent result.
Our Insights: Legal Developments of Interest
We continue to publish blogs of interest regularly. Here are some recent examples:
Change is in the Air: Considering What Constitutes a Material Change
In a notable decision, the Ontario Court of Appeal weighed in on what constitutes a “material change” that needs to be disclosed (as opposed to a change in a material fact). A material change is defined in securities legislation as a change in the business, operations, or capital of the issuer that would reasonably be expected to have a significant effect on the market price or value of the issuer’s securities. Reporting issuers in Canada must report material changes immediately. The same obligation, however, does not apply to a “material fact”, which is a fact that would reasonably be expected to have a significant effect on the market price of value of the securities. This Court of Appeal decision explores how to tell the difference. You can find our blog here.
Dissenters Beware: Ontario Court Finds Deal Price to be Strong Evidence of Fair Value
An Ontario Superior Court decision was released that confirmed that deal price is strong evidence of fair value in a dissent proceeding. The Court rejected claims of a higher value from dissenting shareholders based on discounted cash flow analyses and emphasized the importance of “real markets” over “theoretical markets”, as demonstrated by the lengthy sale process undertaken by the company. You can find our blog here.
Addressing Child Labour and Forced Labour: Prepare Now for New Reporting Obligations
Beginning January 1, 2024, certain entities will need to report the steps they have taken to reduce the risk that forced labour or child labour has been used in the production of their goods. The reporting obligations apply to:
- all entities listed on a Canadian stock exchange regardless of size, and
- private companies with significant assets, revenue or employees.
These reporting entities will have until May 31 of each year to submit their reports. The initial report will be due May 31, 2024 in respect of an entity’s activities undertaken during its most recent prior financial year.
See the list of key take-aways that we have in our blog here. Reporting entities should consider now if there are any steps to be taken in order to address any risks and to best position themselves for their initial report next year.
Corporate Services Update
Our corporate services team is growing! So far this year, we’ve worked on over 100 company and partnership formations, business registrations and reorganizations. We’ve also been very active in growing our entity management business, almost doubling the number of minute books and limited partnerships that we help maintain, surpassing 500 entities at last count.
As part of our client service, we provide timely reminders to our clients of important dates and changes to corporate requirements. Many jurisdictions in Canada are now requiring disclosure of ultimate beneficial owners. We provide an update on the changes for corporations incorporated under the Canada Business Corporations Act (“CBCA”) below.
Starting January 22, 2024, federal companies will need to file with Corporations Canada certain information about the individuals that have “significant control” over them.
Since 2019, each CBCA corporation has been required to create and maintain a register of individuals with significant control, and to verify that it is up to date at least annually. Up until now, however, the register has not been publicized, and there has been no requirement to submit that information to a governmental authority except upon request.
Starting on January 22, 2024, each federal corporation will need to file information on the individuals with significant control with Corporations Canada. Furthermore, if certain legislative proposals currently before Parliament are adopted, some of that information could become publicly available.
SkyLaw Welcomes Two New Members to the Team!
SkyLaw is delighted to welcome Meryam Kellow and Maria Gabriel to the team!
Meryam was called to the Ontario bar in 2021 and has gained meaningful experience with corporate transactions in private practice. She also worked in-house where she negotiated commercial contracts and advised on compliance matters. Meryam enjoys travelling, and most recently, she went trekking in Jordan! Here is a picture of her canyoneering adventure in Wadi Mujib near the dead sea. This exhilarating experience began by wading through streams in the Mujib Canyon Trail and ended by swimming underneath a waterfall.
Maria has joined as our third law clerk and works closely with Esta and Bernice. Maria worked as a law clerk and legal administrator at Deloitte LLP, Borden Ladner Gervais LLP, and other firms for over 14 years. As a Blue Jays fan (like the rest of the SkyLaw team), Maria used the SkyLaw tickets to bring her family to a game recently and her husband ended up catching a foul ball (and a scraped knee)!
We are always happy to speak with talented professionals who might be interested in joining our team. Feel free to connect with us! We are continuing to expand our corporate services group and our posting for another law clerk can be found here.
SkyLaw and the Governance Professionals of Canada
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 was in Charlottetown and Kevin and Diana were delighted to participate in person.
SkyLaw sponsored the first plenary session with Thomas Cromwell (Kevin used to call him Professor Cromwell while at Dalhousie, and then Justice Cromwell when he was at the Supreme Court of Canada, and now he insists on being called “Tom”, which is a bit daunting for Kevin). The next day, Diana moderated a panel titled: Setting the Stage for Board Diversity: What to know and what to do before you recruit.
The conference provided a great opportunity to re-connect with colleagues and meet new governance professionals. The sessions were very educational, in particular the session: AI: Should you be excited or afraid? There is much to be cautious of on the AI horizon, including the recently-launched FraudGPT. We look forward to next year’s GPC conference in Whistler!
SkyLaw will be attending the annual GPC black-tie awards gala on November 8: Excellence in Governance. Kevin participated as a judge this year reviewing entries in the categories of “Strategy” and “Organizational Governance”. Earlier in the day, Esta and Kevin will be with GPC at the TMX Market Close (to be picked up live on BNN Bloomberg!). We look forward to another exciting event!
U of T Presentation on Social Entrepreneurship
Kevin West and Priya Ratti were honoured to be invited to speak as guest lecturers for the graduate program on Social Entrepreneurship in the Faculty of Applied Science & Engineering at the University of Toronto taught by Alex Kjorven of Ourboro. For many years our good friend Norm Tasevski taught the course along with Alex. Norm is dearly missed, and we are proud to help continue his legacy.
Their presentation, which can be found here, focused primarily on comparing and contrasting various legal structures for social enterprises and outlining some key considerations when choosing the right structure to set up a social enterprise. The students were so impressive and even shared some astoundingly innovative ideas that are on track to make a positive social impact on the world. SkyLaw plans to return to campus next month to hear the students present their social enterprise pitches!
We received a very kind honorarium from the University of Toronto for participating in the course. SkyLaw has donated this money to the Vital Toronto Fund of the Toronto Foundation to support their impact investing activities in the local community.
New York and Delaware
We regularly travel to meet clients and contacts in person. In October, five SkyLaw team members travelled to New York City and stayed at the historic New York Athletic Club on Central Park South. As part of that trip, we took the Acela to Delaware to make a presentation on Canadian corporate services matters at our client’s office for their Canada team. Here are Bernice, Esta and Michael ready to board the train from the new Moynihan Train Hall at Penn Station!
After a meeting at Rockfeller Plaza, we made a stop at FAO Schwarz (made famous by Tom Hanks in Big). Toys these days are really quite life-like.
A highlight of the trip was watching Moulin Rouge on Broadway! The show won the Tony award for best musical in 2021, an honour we think was well deserved! It was a true Broadway experience.
Michael recently attended LegalTech 6 – Workshop in the Windy City in Chicago. Organized by Doon Insights, the intimate workshop showcased expert panels and startups on the cutting edge of legal tech. Not surprisingly, much of the discussion was dominated by the transformative powers of artificial intelligence (AI) in legal practice, with many startups applying AI towards document automation, data analytics and transaction management to enhance efficiencies. While the overall sentiment is that of astonishment and enthusiasm around the capabilities of AI, there remains a healthy level of skepticism, curiosity and mindfulness of concerns on whether AI can actually replace lawyers, whether those who fail to adopt AI will be left behind, and whether client confidentiality is adequately protected.
Since its founding, SkyLaw has embraced the use of technology in its practice to enhance client service. While we are consistently looking for ways to offer better value for clients, we adopt a thoughtful approach toward the deployment of new technologies in our practice. We will be looking at ways in which AI could help with our day-to-day work, but the preservation of client confidentiality and data security will always be “top of mind” for us.
We are looking forward to attending the next LegalTech workshop. In the meantime, if you are interested in setting up a company in the legal tech space, we would be more than happy to assist.
Kevin travelled to Halifax in September for his law school reunion. It was a memorable experience meeting up with dozens of classmates and connecting with Halifax law firms. Somehow it appears that 25 years have passed since Kevin graduated in 1998. Here he is from the class photo hanging in the halls of Dalhousie Law School.
SkyLaw was proud to host an event for the Class of 1998 at Compass, a lovely distillery and bar that is co-owned by classmate Josh Judah. A big thank you to Josh and his team for making the night so special! SkyLaw also makes an annual contribution to the Class of 1998 Internship Fund to help fund a student internship at Dalhousie Law School.
SkyLaw Blue Jays Event
On September 11, SkyLaw hosted a super fun Blue Jays event at the Rogers Centre’s Bacardi Bar that was a great success! We were thrilled with the response to our invitation and quickly hit maximum capacity with over 100 people attending the event. The SkyLaw team was delighted to be joined by close friends and family, colleagues, associates, and alumni members. It was a great turnout, and a ton of fun catching up with each and every person.
The game was an exciting one against the Texas Rangers, who last night won the World Series. While the Blue Jays suffered yet another ignominious exit from the playoffs, so did many other teams. We remain faithfully optimistic and have renewed our season tickets for the 2024 season, even picking up a couple more seats in the newly renovated 100 level!
Diana Goes to Cambridge
Diana Nicholls Mutter recently moved to the UK to begin a PhD in law at the University of Cambridge! It is an incredible opportunity for Diana to conduct research on corporate and securities law at one of the best universities in the world.
Here are two pictures that Diana sent to us: the first is Diana in her academic robes in front of her college (Girton College, which was historically the first residential institution in the UK to offer university education for women); and the second is a picture Diana took of the iconic King’s College chapelwhich she passes on her way to the law school.
We are so excited for Diana and wish her all the best with her studies. We look forward to hearing about where this next adventure takes her!
We take Hallowe’en very seriously around the office. Some of our clients outside of North America may find the practice somewhat surprising. Last year, two directors based in Europe were left a bit speechless when they joined a Teams call and saw Andrea online in her Hallowe’en cat outfit.
Here are some family photos from the SkyLaw team from this year’s Hallowe’en!
This blog post is not legal or financial advice. It is a blog which is made available by SkyLaw for informational purposes and should not be used as a substitute for professional advice from a lawyer.
This blog is subject to copyright and may not be reproduced without our permission. If you have any questions or would like further information, please contact us. We would be delighted to speak with you.
© SkyLaw . All rights reserved. SkyLaw is a registered trademark of SkyLaw Professional Corporation.