Challenges and Opportunities in Corporate and Commercial Law - The 2018 C&C Law Workshop

By Alvin Yau

The Faculty of Law was pleased to revive the Consumer and Commercial Law Workshop in April 2018. The Workshop had been run by Professor Emeritus Jacob Ziegel since 1970. It was an annual event that brought together people who were interested in the latest developments in commercial and consumer-related areas of law.

Over the years, the workshop has featured many prominent legal thinkers from Canada and abroad, including justices of various court levels, leading practitioners, and legal scholars. The panels discussed developments concerning diverse areas of interest such as consumer protection, class action litigation, the 2008 Financial Crisis, securities regulation, and many other areas.

Under a slightly new name, the 2018 workshop welcomed roughly one hundred participants to the Faculty of Law to engage in conversations about developing corporate and commercial law topics in Canada. Throughout the day, speakers representing the bar, bench, regulatory community, and academy spoke at four panels, which covered the topics of insolvency law, cryptocurrency and crypto asset regulation, corporate governance, and mergers and acquisitions.

Professors Anita Anand and Adriana Robertson, co-chairs of the workshop, started the proceedings with a discussion about major Canadian corporate events related to the four panels' themes. Professor Anand cited the fluctuating prices of cryptocurrencies, the InterOil decision from the Yukon Court of Appeal, and Bill C-25 as examples of recent developments that engage the four topics. Professor Robertson welcomed the workshop panellists and participants to the Faculty of Law.

In the first of two morning panels, Professor Anthony Duggan moderated a panel on Canadian insolvency law featuring Andrew Kent (McMillan LLP), the Honourable Justice Geoffrey Morawetz, and Robin Schwill (Davies LLP). The panel discussed various issues such as employees' and pensioners' claims and costs of proceedings. Workshop participants asked questions about the topics in relation to recent Canadian examples of corporate restructuring events such as Nortel and Danier and their impact on Canadians and the national economy.

Professor Adriana Robertson moderated the second panel featuring Pat Chaukos (OSC Launchpad), Carol Derk (Borden Ladner Gervais LLP), and JD student Josh Stark (L4) discussing the economics and regulatory treatment of cryptocurrencies, crypto assets, and blockchain technology. The topic of the panel generated a significant number of questions from the audience who were interested in learning more about the underlying blockchain technology, the theory behind these crypto-based products, and regulatory approaches towards this nascent field.

At noon, Maureen Jensen, chair and CEO of the OSC, delivered keynote remarks entitled “From Cryptocurrencies to Board Diversity: Regulating Fairly in an Era of Change.” Jensen covered a wide array of contemporary challenges and opportunities for regulatory bodies, including the rise of cryptocurrencies and enhanced board diversity measures. Fundamentally, the challenges in regulating these new areas include the need for fairness and investor protection, while minimizing unnecessary regulatory costs for participants. She then answered questions from the audience including those related to enforcement activities for white-collar crime and how the OSC is addressing fintech innovation.

The Workshop's afternoon events featured two panels that dealt with the topics of board governance and diversity issues, and mergers and acquisitions.

In the third panel, Professor Anita Anand moderated a discussion featuring Stephen Erlichman (Fasken LLP and the Canadian Coalition of Good Governance), Professor Sarah Kaplan (Rotman School of Management), and Andrew MacDougall (Osler LLP). The conversation considered the current trends in board diversity initiatives including having greater board representation for women and other underrepresented groups in light of Bill C-25, as well as majority voting in Canada.

Finally, in the fourth panel of the day, Professor Anita Anand moderated a panel featuring Naizam Kanji (OSC), John Tuer, and Cornell Wright (Torys LLP). The panel discussed recent Canadian decisions including the InterOil decision from the Yukon Court of Appeal and its impact on defensive tactics for target companies in takeover bid contexts. The discussion also examined the Aurora-CanniMed transaction and the role of confidential disclosure reports.

The Honourable Hal Jackman concluded the day's activities with remarks recalling his experience on boards of directors as well as his involvement with the Workshop in years past. Mr. Jackman's remarks also highlighted the importance of continued engagement with corporate and commercial law topics in Canada.

The 2018 Corporate and Commercial Law Workshop is the latest in a long series of annual conversations with leading practitioners, academics, and jurists in this area of law. With this year’s event, the annual tradition has been re-started, so stay tuned for updates about our forthcoming 2019 Workshop, which will be shared on the Faculty of Law website.