Governance Insights 2026 A Preview of 2026: 10 Legal Updates GCs, Boards and Investors Need to Know
Boards and in-house counsel should also be mindful that automatically generated transcripts of meetings, or portions of such transcripts, may be relevant to, and thus disclosable in, litigation unless they are subject to a viable claim of privilege. In the ordinary course, the official, board-approved meeting minutes (often drafted by counsel) should be the sole record of the meeting. Separate notes or recordings of such meetings are generally not made or retained out of concern that they may be inaccurate or incomplete and undermine the settled minutes, or that they may be shared outside the relevant zone of confidentiality and privilege. Transcripts produced by AI software should be regarded in the same vein as other forms of notes and carefully managed. For more on this topic, see AI in the Boardroom (Page 11). 3. “A Change is a Change”: Real-Time Reporting Procedures in Light of SCC “Material Change” Decision Late last year the Supreme Court of Canada (SCC) released its much-anticipated decision in Lundin Mining Corp. v Markowich . The SCC affirmed the two-step analysis that an issuer should deploy to determine whether a given development constitutes a “material change” for purposes of Canadian securities laws: one, has there been a change in the issuer’s business, operations or capital, and two, is that change material (that is, would the change reasonably be expected to have a significant effect on the price or value of the issuer’s securities)? More significantly, the SCC agreed with the Ontario Court of Appeal that “change in the business, operations or capital” should not be interpreted restrictively – the construct captures corporate developments broadly speaking, not simply important or substantial ones. “A change is a change.” Time will tell whether the SCC’s broad interpretation of “material change” will place issuers at greater risk of unmeritorious litigation, in which would-be plaintiffs may combine price movements and internal developments not disclosed in real time to make out a prima facie case against an issuer. Although timely disclosure decisions are not to be judged against the standard of perfection or with the benefit of hindsight, they are subject to review by expert tribunals and judges who will not defer to the business judgment of senior management. It is thus no surprise that the SCC reiterated the past guidance of securities regulators that “in borderline cases, an issuer should err on the side of disclosure.”
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