On September 28, 2016, the Canadian Securities Administrators (CSA) published CSA Multilateral Staff Notice 58-308 – Staff Review of Women on Boards and in Executive Officer Positions – Compliance with NI 58-101 Disclosure of Corporate Governance Practices (Notice). The Notice continues the review, for a second year, of "comply or explain" disclosure provided by non-venture public companies in Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Quebec, Saskatchewan and Yukon concerning the representation of women on boards and in executive positions, as set out in Form 58-101F1 – Corporate Governance Disclosure (Form).

The Notice follows the September 2015 release of CSA Multilateral Staff Notice 58-307 – Staff Review of Women on Boards and in Executive Officer Positions – Compliance with NI 58-101 Disclosure of Corporate Governance Practices, which found that the progress of the representation of women on boards and in executive positions had been positive, but slow, for the 2015 proxy season. See our October 2015 Blakes Bulletin: CSA Findings from Gender Diversity Disclosure Requirements Review Released.

For further background information concerning the gender diversity disclosure requirements in the Form, see our October 2014 Blakes Bulletin: Just in Time for 2015 Proxy Season: Disclosure Requirements for Gender Diversity, Director Tenure. Additionally, see our September 2016 Blakes Bulletin: Alberta Securities Commission Proposes Adoption of Gender Diversity Disclosure Requirements for information concerning the proposed adoption of the Form's gender diversity disclosure requirements in Alberta.

SECOND-YEAR REVIEW RESULTS

The Notice continues the review of the compliance with gender diversity disclosure requirements for 677 issuers with year-ends between December 31, 2015 and March 31, 2016. It found only small improvements from the findings of the first-year review, as follows:

  • Overall percentage of board seats occupied by women increased from 11 per cent to 12 per cent as compared to the prior year, increasing in all size categories of issuers, with the 42 largest issuers leading the way at 23 per cent (up from 21 per cent)
  • 10 per cent of issuers added one or more women to their boards (of a total of 521 vacant seats filled during the year, only 15 per cent of the new hires were women), a decline compared to 15 per cent of issuers from the prior year
  • 45 per cent of issuers did not have a woman on their boards (down from 51 per cent in the prior year), which figure rises to 62 per cent and 60 percent for the mining and oil & gas industries, respectively
  • 21 per cent of issuers had policies regarding the identification and nomination of female directors (up from 15 per cent in the prior year), and issuers with such a policy had a greater overall percentage of board seats occupied by women (18 per cent) as compared to issuers without such policies (10 per cent)
  • Nine per cent of the issuers had a formal target for the appointment of women to boards, an increase of two per cent from the prior year
  • Issuers with board targets had, on average, female board representation of 25 per cent, compared to 10 per cent for issuers that did not have a target
  • The percentage of issuers having formal targets for the representation of women in executive officer positions and the percentage of issuers having at least one female executive officer each remained relatively stable as compared to last year

REGULATORY RESPONSES

CSA/Ontario Securities Commission (OSC)

Gender diversity continues to be a priority for the CSA. Maureen Jensen, Chair of the Ontario Securities Commission, recently stated that she was "disappointed in the results" outlined in the Notice, adding that the OSC has committed to giving issuers three years (two of which have been completed) to show progress, failing which a review will be undertaken concerning whether to toughen the current "comply-or-explain" regime. One option available to the OSC could be to impose on non-venture issuers a "comply" disclosure regime requiring the adoption of policies relating to the identification and nomination of women directors and appointment of female senior officers, fixed targets for women on issuer boards and in executive officer positions and/or director term limits or other mechanisms of board renewal.

Ontario Government

As described in our June 2016 Blakes Bulletin: Are Mandatory Gender Diversity Targets Coming for Public Companies in Ontario?, on June 7, 2016, in response to the slow pace of progress regarding the representation of women on boards and in executive officer positions, Catalyst Canada released a set of recommendations to businesses and governments, all of which were accepted by the Ontario government.

Federal Government/Canada Business Corporations Act (CBCA)

Bill C-25, An Act to amend the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-profit Corporations Act, and the Competition Act (Bill) proposes to add a diversity "comply-or-explain" requirement to the CBCA. The Bill, if implemented, would require that specified CBCA corporations include prescribed information (effectively in their management proxy circulars) regarding diversity among directors and members of senior management. While the items to comprise this "comply-or-explain" regime will be specified in regulations that are yet to be drafted, they are expected to resemble the Form, except that the CBCA regime may take a more expansive approach to diversity that goes beyond gender diversity.

We wish to acknowledge the contribution of Stefania Zilinskas to this publication.

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