Notes (Cont'd)
80 Alvarez & Marshal Canada Inc., “Third Report of the Monitor Alvarez & Marsal Canada Inc.” (March 10, 2020), online: https://www.alvarezandmarsal.com/sites/ default/files/canada/monitor_s_third_report_to_the_court_ march_10_2020_0.pdf. 81 EY Canada, Essar Steel Algoma Inc , online: https:// documentcentre.ey.com/#/detail-engmt?eid=244; see particularly “Sixteenth Report of the Monitor” (September 9, 2016), at 13–14. Chapter 4 – Shareholder Activism Abates, but Not for Long: Significant Activity and Developments in 2020 82 Except where otherwise noted, activism data have been provided by Activist Insight and are current to June 30, 2020. H1 data relate to periods between January 1 and June 30 of the applicable year.
maintaining for their portfolio companies best-in-class ESG characteristics. Engagement focus activists are typically, but not exclusively, mutual fund managers who often operate through the submission of shareholder proposals. – Concerned shareholders are individual shareholders, or groups of shareholders, who attempt to enforce change typically at a single company in response to poor performance or other grievances. Typically, these one-off situations are advanced by former directors or management, or related parties. 86 Activist Insight , “COVID-19: The Impact on Shareholder Activism,” online: https://www.activistinsight.com/research/ COVID19_ActivistInsight.pdf. 87 Davies Governance Insights 2019 , online: https://www.dwpv. com/en/Insights/Publications/2019/Davies-Governance- Insights-2019, chapter 3. 88 See CSA Multilateral Staff Notice 61-302 – Staff Review and Commentary on Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions (July 27, 2017); see also the decision and reasons of the OSC in Catalyst, supra note 3. Chapter 5 – Let’s Take This Online: Virtual Shareholders’ Meetings in 2020 and Beyond 89 Davies Governance Insights 2018 , online: https://www. dwpv.com/en/Insights/Publications/2018/Governance- Insights-2018, chapter 3. 90 Ibid . 91 COVID-19 Response and Reforms to Modernize Ontario Act, 2020 , SO 2020, c 7, Schedule 2, online: https://www.ontario. ca/laws/statute/s20007. 92 Ministerial Order No SA:009/2020, OIC 080/2020, Public Health Act , RSA 2000, c P-37, online: https://www.qp.alberta. ca/Documents/MinOrders/2020/Service_Alberta/2020_ SA009_Service_Alberta.pdf. 93 Ministerial Order No 73/2020, OIC 173/2020, Emergency Program Act , RSBC 1996, c 111, online: http://www.bclaws. ca/civix/document/id/mo/mo/2020_m116. 94 Ministerial Order No 2020-029, OIC 177/2020, Public Health Act , CQLR c S-2.2, online: https://cdn-contenu.quebec.ca/ cdn-contenu/adm/min/sante-services-sociaux/publications- adm/lois-reglements/AM_numero_2020-029-anglais. pdf?1588008772.
83 Ibid . 84 Ibid .
85 Activist Insight defines “activist focus” as follows: – Primary focus activists are investors that proactively
and systematically identify and target underperforming companies, attempting to enhance shareholder value through the execution of shareholder activism. For these investors, activist investments typically form a significant majority of their investment portfolios. Primary focus activists are typically, but not exclusively, hedge funds. – Partial focus activists also proactively and systematically target underperforming companies as part of an established activist investment strategy. However, they differ from primary focus activists in that activist investments will tend to constitute only a portion of their investment portfolios alongside assets acquired through the employment of other investment strategies. – Occasional focus activists are investors for which activist investing is not typically a frequently used strategy within their broader investment philosophies. Rather than proactively targeting underperforming companies with the goal of improving shareholder value, these otherwise typically passive shareholders often react instead with demands for change to the underperformance of portfolio companies, in a bid to protect their existing investments. – Engagement focus activists are investors that have escalated their otherwise typical investment stewardship responsibilities in order to protect and enhance shareholder value. These activists adopt or otherwise publicly support activist strategies with the objective of achieving or
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