Canada: New Corporate Governance Disclosure Rules Finalized

Canadian securities regulators have finalized both their disclosure rule requiring reporting issuers to describe certain aspects of their corporate governance practices and their policy setting out corporate governance guidelines that reflect best practices. The two instruments are known as National Instrument 58-101 Disclosure of Corporate Governance Practices (the "Rule") and National Policy 58-201 Corporate Governance Guidelines (the "Policy"), which are collectively referred to below as the "New Initiatives".

The New Initiatives represent a harmonized regime (in comparison to the previous competing corporate governance proposals issued by different groups of securities regulators in Canada), in that they represent initiatives undertaken by every securities regulatory authority in Canada. They are also similar in substance to the NYSE’s corporate governance listing standards and reflect Canadian and U.S. best practices.

Amendments to Multilateral Instrument 52-110 Audit Committees (the "Audit Committee Instrument") and its companion policy by the Canadian securities regulators (other than British Columbia, which on February 4, 2005 proposed its own rule on audit committees, which exempts issuers that comply with the Audit Committee Instrument) have also been finalized to clarify the definition of "independence" and to ensure the consistency of this definition with the New Initiatives and with recent amendments to the NYSE’s corporate governance listing standards. The Canadian securities regulators have announced that they expect the amendments to the Audit Committee Instrument and its companion policy will come into force on June 30, 2005.

When formally approved, the Rule will apply to information circulars (or annual information forms, if the issuer is not required to send an information circular) which are filed following financial years ending on or after June 30, 2005. For example, an issuer with a June 30^th year-end would include the disclosure required by the Rule in its information circulars commencing with the first information circular it files after June 30, 2005. Similarly, an issuer with a July 31^st year-end would include the required disclosure in its information circulars commencing with the first information circular it files after July 31, 2005. For most reporting issuers with calendar year-ends, the Rule will apply commencing in early 2006.

The stated purpose of the Rule is to provide greater transparency for the marketplace regarding issuers’ corporate governance practices. It includes both mandatory disclosure requirements (principally in an issuer’s management proxy circular) and the requirement to file on SEDAR any written code of business conduct and ethics (and amendments thereto) that an issuer has adopted.

The New Initiatives apply to reporting issuers. In addition to corporations, they also apply to limited partnerships and various other non-corporate issuer entities, including income trusts. The application to income trusts recognizes that certain functions of a corporate issuer, its board and its management may be performed by any or all of the trustees, the board or management of a subsidiary of the trust, or the board, management or employees of a management company.

The New Initiatives do not, however, apply to investment funds, issuers of asset-backed securities, designated foreign issuers and SEC foreign issuers (each as defined), certain exchangeable security issuers, certain credit support issuers and certain wholly-owned subsidiary issuers.

Recognizing that many smaller issuers will have fewer formal procedures in place, the Rule imposes fewer disclosure obligations on issuers that do not have any securities listed or quoted on the TSX, a U.S. marketplace or a marketplace outside of Canada and the U.S. (i.e., venture issuers).

The Rule requires reporting issuers (except venture issuers) to disclose attendance records of directors, as well as details concerning any compensation consultants retained to assist with director and officer compensation.

Like the previous proposals, the specific disclosure requirements under the Rule are informed by the recommended best practices in the corresponding Policy. However, a key difference from the previous proposals is that the focus has shifted from explaining differences to describing practices. In other words, under the Rule, an issuer will be required to describe its adopted corporate governance practices, as opposed to being required to explain why a particular recommended best practice is not complied with.

In comparison to the current situation, where corporate governance disclosure obligations are solely a TSX requirement, under the New Initiatives the Canadian securities regulators are expected to be able to more effectively enforce violations of corporate governance requirements. In particular, the failure by an issuer to provide adequate disclosure may constitute a breach of securities laws and expose the issuer and others to enforcement proceedings and sanctions.

The stated purpose of the Policy is to provide guidance on corporate governance practices, which are non-binding and are not intended to be prescriptive. Issuers are encouraged to consider the guidelines in developing their own corporate governance practices and will not be required to disclose their practices in comparison to the guidelines contained in the Policy. The Rule, by contrast, specifically requires issuers to make certain corporate governance-related disclosures. As noted above, however, the disclosure items required under the Rule generally correspond to the guidelines in the Policy.

To a significant extent, the Policy reflects existing TSX corporate governance guidelines. However, the Policy also reflects U.S. initiatives under the Sarbanes-Oxley Act of 2002 and newly adopted corporate governance rules of the NYSE and NASDAQ.

The following contains a short summary of some key elements of the Policy, including references to items not included in the currently applicable TSX corporate governance guidelines, which are identified by the notation "new":

Independence: The board should have a majority of independent directors. A director is independent if he or she has no direct or indirect material relationship with the issuer. Further discussion of the meaning of the terms "independence" and "material relationship" is included below.

Chair: The board chair should be independent or an independent lead director should be appointed.

Meetings of Independent Directors: The independent directors (not just non-management directors) should hold regularly scheduled meetings at which members of management are not in attendance.

Board Mandate: The board should adopt a written mandate (new) in which it explicitly acknowledges responsibility for the stewardship of the issuer, including responsibility for:

• satisfying itself as to the integrity of the CEO and other executive officers and that these officers create a culture of integrity throughout the organization (new),
• adopting a strategic planning process and approving an annual strategic plan,
• identifying principal business risks and ensuring the implementation of risk management systems,
• succession planning,
• adopting a communication policy,
• internal controls and management information systems, and
• developing the issuer’s approach to corporate governance, including establishing a set of corporate governance principles and guidelines specifically applicable to the issuer.

The board’s written mandate should also include:

• measures for receiving feedback from security holders (e.g., the regulators suggest that the board may wish to establish a process to permit security holders to directly contact the independent directors) (new), and
• expectations and responsibilities of directors, including basic duties and responsibilities with respect to attendance at board meetings and advance review of meeting materials (new).

Position Descriptions: The board should develop clear position descriptions for the board chair (new) and the chair of each board committee (new) and, together with the CEO, the board should develop a clear position description for the CEO that delineates management’s responsibilities. The board should also develop or approve the CEO’s corporate goals and objectives.

Director Education: The board should ensure that all new directors receive comprehensive orientation regarding both the business of the issuer and director duties. Continuing education should also be provided to all directors (new).

Code of Business Conduct and Ethics: The board should adopt a written code of business conduct and ethics applicable to directors, officers and employees (new). This code should contain written standards that are reasonably designed to promote integrity and to deter wrongdoing, and should address the following:

• conflicts of interest, including transactions and agreements that a director or executive officer has a material interest in,
• protection and proper use of corporate assets and opportunities,
• confidentiality of corporate information
• fair dealing with security holders and, interestingly, also with customers, suppliers, competitors and employees (relationships that one might be forgiven for thinking are not within the purview of securities regulators),
• compliance with laws, rules and regulations, and
• reporting of any illegal or unethical behaviour.

In addition, the board should be responsible for monitoring compliance with the code, and any waivers from the code that are granted for the benefit of directors or executive officers should be granted by the board or a board committee only (new). In contrast to earlier proposals, issuers are not required to file a press release in respect of such waivers from the code. However, consideration must be given to whether conduct by directors or executive officers constitutes a material departure from the code. If so, the regulators indicate that they would likely take the view that a "material change" has occurred, thereby requiring the issuer to file a press release and material change report.

Also note that under the Rule, the code (and any amendments thereof) must be filed on SEDAR, and the issuer’s management proxy circular must disclose how interested parties can obtain a copy (new).

Nomination of Directors: The board should appoint a nominating committee composed entirely of independent directors (new) and such committee should adopt a written charter (new). If such a committee exists, its responsibilities, powers and operation must be described in the issuer’s management proxy circular.

Recruitment of Directors: The nominating committee of the board should, among other things, adopt a process for determining the competencies and skills that the board should have as a whole and should apply this to the recruitment process for new directors (new).

Compensation: The board should appoint a compensation committee composed entirely of independent directors (new) and this committee should adopt a written charter (new). If such a committee exists, its responsibilities, powers and operation must be described in the issuer’s management proxy circular. The committee should be responsible for:

• reviewing and approving corporate goals and objectives relevant to the CEO’s compensation, evaluating the CEO’s performance in that respect, and determining (or making recommendations to the board with respect to) the CEO’s compensation level based on their evaluation,
• making recommendations to the board with respect to the compensation of other officers (new) and directors, and making recommendations to the board with respect to incentive compensation plans and equity-based plans (new), and
• reviewing executive compensation disclosure in the management proxy circular and offering documents prior to their public release (new).

Board Assessments: Regular assessments of board effectiveness and the effectiveness and contribution of each board committee and each individual director should be conducted.

Amendments to the Audit Committee Instrument (which have been finalized and are expected to come into force on June 30, 2005) are aimed at clarifying the definition of independence and harmonizing this definition with the New Initiatives and with recent amendments adopted by the NYSE. The amendments separate certain deeming provisions that would disqualify a director from being considered independent. By clearly identifying which deeming provisions apply solely for the purposes of Audit Committees (whose members must satisfy additional more rigorous criteria, e.g., financial literacy), the changes help to ensure the consistency of the definition with the New Initiatives.

A director is independent if he or she has no direct or indirect material relationship with the issuer. A material relationship is defined as a relationship that could, in the view of the issuer’s board, be reasonably expected to interfere with the exercise of a board member’s independent judgment. A board should assess all relationships between the issuer and an individual in order to determine whether any material relationship exists, although share holdings alone will not lead to a conclusion that there is a lack of independence.

Various provisions included in the Audit Committee Instrument specifically deem certain individuals as having a material relationship with an issuer. For example, if an individual is, or was within a three-year period (subject to a phase-in requirement) one of the following, then that individual would automatically not be considered independent. Immediate family members (i.e., a spouse, parent, child, sibling, mother or father-in-law, son or daughter-in-law, brother or sister-in-law, and anyone, other than an employee of either the individual or the individual’s immediate family member, who shares a home with the individual) having relationships similar to those described below may also taint an individual’s independence.

• An employee or executive officer of the issuer.
• A partner or employee of the internal or external auditor of the issuer or a former partner or employee of the auditor if he or she personally worked on the issuer’s audit.
• An executive officer of another entity if a current executive officer of the issuer serves or served at the same time on the compensation committee of the other entity.
• A person who is in receipt of more than $75,000 in direct compensation from the issuer during any twelve-month period (except compensation for acting as a director or committee member), other than fixed amounts of compensation under a retirement or deferred compensation plan for prior service with the issuer, provided such compensation is not in any way contingent on continued service.

Since the three-year period indicated above is being phased in over time, it will not apply to relationships with certain individuals that ended prior to March 30, 2004, and relationships with certain subsidiary and parent entities that ended prior to June 30, 2005. In other words, relationships ending before those dates will not taint an individual’s independence.

The heightened standards of director independence applicable to audit committee members, however, will not apply to directors for general director independence purposes. This approach is consistent with the U.S. requirements.

The companion policy of the Audit Committee Instrument has also been amended to recognize that income trusts will be allowed a certain flexibility in how they are required to apply the Audit Committee Instrument to their structure. For example, it is stated that the audit committee responsibilities of an issuer also may be performed by other entities within the income trust structure other than the issuer itself (i.e., the board of trustees of the trust, the board or management of a subsidiary of the trust, or the board, management or employees of a management company).

Under Multilateral Instrument 52-108 Auditor Oversight (the "Auditor Oversight Instrument"), financial statements of public companies can be audited only by a firm that has entered into a "participation agreement" with the Canadian Public Accountability Board (the "CPAB") in connection with the CPAB’s program of practice inspections and the establishment of practice requirements. Some enforcement proceedings have already been taken against auditors who are not CPAB participants.

In all provinces of Canada (excluding Alberta, British Columbia and Manitoba), if an audit firm is subject to sanctions imposed by the CPAB, it is required to notify the audit committee (or, if none exists, the board of directors or person responsible for reviewing and approving financial statements prior to filing) of each reporting issuer for which it has been appointed to prepare an auditor’s report, as well as the local securities regulator. The notice must be in writing, must include a complete description (including reference to dates) of the sanctions imposed and must be delivered within 10 business days of the sanctions being imposed. Prior to accepting an appointment to prepare an auditor’s report, an audit firm must also provide the forgoing notice if the CPAB imposed sanctions on it within 12-months immediately preceding its expected date of appointment.

In the case of potentially less serious "quality control" deficiencies imposed by the CPAB, an audit firm must provide written notice only to the local securities regulator (i.e., not to its clients) and describe the defects in question and the restrictions being imposed by the CPAB, including reference to dates and the time period within which the audit firm agreed to address the defects. Such notice must be delivered within 2 business days of the restrictions being imposed.

However, if an audit firm fails to address such defects within an agreed upon time with the CPAB, it must provide notice to the same parties as would be required if CPAB sanctions had been imposed (as described above). The notice must be in writing, must include a complete description (including reference to dates, the time period within which the audit firm agreed to address the defects and the reasons it was unable to address the defects) of the restrictions imposed and must be delivered within 10 business days after having been informed by the CPAB that it has failed to address the quality control defects. Prior to accepting an appointment to prepare an auditor’s report, an audit firm must also provide the forgoing notice if it was informed by the CPAB within the 12 months immediately preceding its expected date of appointment that it failed to address defects in its quality control systems to the CPAB’s satisfaction.

Pursuant to Multilateral Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (the "Certification Instrument"), the securities regulatory authorities (the "Securities Regulators") in every province and territory in Canada excluding British Columbia (where the current rule is not in force), require that CEOs and CFOs of all Canadian public companies personally certify that:

• to their knowledge, the issuer’s annual or interim filings, as the case may be, do not contain any misrepresentations or omissions and that they fairly present in all material respects the issuer’s financial condition, results of operations and cash flows. Annual and interim filings include an issuer’s annual information form, annual and interim financial statements and annual and interim MD&A. "Fair presentation" is indicated in a companion policy to refer to, without limitation, (i) the selection and proper application of appropriate accounting policies, (ii) the disclosure of financial information that is informative and reasonably reflects the underlying transactions, and (iii) the inclusion of additional disclosure necessary to provide investors with a materially accurate and complete picture of the issuer’s financial condition, results of operations and cash flows, and
• they have designed (or caused to be designed under their supervision) and implemented disclosure controls and procedures and internal controls (but see below) to provide reasonable assurances that (i) material information relating to the issuer is made known to them, particularly during the applicable time, and that such information is disclosed within the time periods specified under applicable securities legislation, and (ii) the issuer’s financial statements are fairly presented in accordance with generally accepted accounting principles.

The wording of the certification must be exactly as set out in the Certification Instrument. An officer providing a false certification could potentially be subject to quasi-criminal, administrative or civil proceedings under securities laws

In addition, the Securities Regulators have finalized amendments to the Certification Instrument (as described in the second bullet above) to postpone the requirement that CEOs and CFOs of public companies provide certifications with respect to their company’s internal controls over financial reporting. The amendments, which are expected to come into force on June 6, 2005, allow CEOs and CFOs more time to satisfy themselves that they have an appropriate basis for providing their required certifications with respect to such internal controls.

CEOs and CFOs would have until their first financial year ending on or after June 30, 2006 (i.e., by mid-May 2007 for most companies with calendar year-ends) to:

• acknowledge their responsibility for establishing and maintaining internal controls over financial reporting,
• certify that such internal controls have been designed (or caused to be designed under their supervision) to provide reasonable assurance regarding the reliability of financial reporting and the preparation of external financial statements in accordance with GAAP, and
• certify that the MD&A in respect of their company discloses any changes regarding internal controls over financial reporting that materially affect, or are reasonably likely to materially affect, such internal controls.

The amendments do not impose any additional requirements on public companies and have not changed the implementation date under the Certification Instrument regarding certification of disclosure controls and procedures by CEOs and CFOs, which are still expected to be required for financial years ending on or after March 31, 2005 (i.e., by mid-May 2006 for most companies with calendar year-ends).

It should be noted that the Certification Instrument and amendments do not address what action should be taken if a company’s internal or disclosure controls are flawed and as a result do not provide reasonable assurance in all areas, since the rule requires the form to be filed in exactly the required wording.

In addition, internal control effectiveness certification is the subject of a proposed new rule released by the Canadian securities regulators (excluding British Columbia) on February 4, 2005 that, as in the U.S., would require company management and its external auditor to assess the effectiveness of internal controls. The comment period on Proposed Multilateral Instrument 52-111 Reporting on Internal Control Over Financial Reporting (the "Internal Control Instrument") expires on June 6, 2005. As a result, certain changes to the Certification Instrument have also been proposed.

The provisions of the proposed Internal Control Instrument regarding internal control reports and internal control audit reports are currently expected to be implemented for financial years ending on or after June 30, 2006, subject to certain proposed transitional rules based on the market capitalization of a company. For example, in addition to satisfying any other applicable exemption conditions, companies with market capitalizations (based on a prescribed formula) as at June 30, 2005 or following (depending on when the issuer becomes a reporting issuer or ceases to be a venture issuer) of (i) less than $75 million would be permitted a three year delay, (ii) more than $75 million but less than $250 million would be permitted a two year transition period, and (iii) more than $250 million but less than $500 million would be permitted a one year extension.

Alternative approaches to regulating internal control are also being considered by the Canadian securities regulators. Various examples have been described in their request for public comments on the Internal Control Instrument. The British Columbia Securities Commission ("BCSC") is also accepting public comments until June 4, 2005 on their reasons for not adopting the Internal Control Instrument and their views on alternative approaches. The BCSC has said that they are not convinced it is the right way to achieve the underlying objective of improving the quality of financial reporting, and that compliance with the Internal Control Rule would be too costly relative to the benefits. One alternative approach proposed by the BCSC is not to impose any formal requirements to evaluate and audit internal control over financial reporting, but rather to recommend that issuers design and maintain appropriate internal control as part of the process of ensuring reliable and timely financial disclosure.   If an issuer fails to comply, and something goes wrong as result, the BCSC suggests that the regulator may take enforcement action against the issuer and its directors and senior management. According to the BCSC, this approach, coupled with the normal market forces (especially shareholder action) that are already focusing increased attention on controls, would do a better job of delivering value to investors.