Bill C-25 (Historical)

An Act to amend the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-profit Corporations Act, and the Competition Act

Part 1 amends the Canada Business Corporations Act, the Canada Cooperatives Act and the Canada Not-for-profit Corporations Act to, among other things,
(a) reform some aspects of the process for electing directors of certain corporations and cooperatives;
(b) modernize communications between corporations or cooperatives and their shareholders or members;
(c) clarify that corporations and cooperatives are prohibited from issuing share certificates and warrants, in bearer form; and
(d) require certain corporations to place before the shareholders, at every annual meeting, information respecting diversity among directors and the members of senior management.
Part 2 amends the Competition Act to expand the concept of affiliation to a broader range of business organizations.

Canada Business Corporations Act

[Navdeep Bains, Liberal, Minister of Innovation]

moved that 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, be read the second time and referred to a committee.

Mr. Speaker, I rise to speak to Bill C-25. This government is making innovation a priority. That means means helping Canadian companies drive growth and create jobs that strengthen the middle class. It also means growing companies that can compete in the global marketplace.

The government's inclusive innovation agenda is a plan to drive economic growth through innovation. As legislators, we have a responsibility to set the ground rules for doing business, and we have the means to create the winning conditions for people and companies to innovate and thrive.

It is no accident that our innovation agenda has the word “inclusive” attached to it.

This government recognizes that our country is at its most prosperous when everyone has a fair chance to succeed.

Bill C-25, which I present to the House today, makes important adjustments to the framework laws that govern the Canadian marketplace. These laws set out how corporations are organized.

They also promote investor confidence and a competitive marketplace. These conditions support long-term investment and economic growth, and this bill would make it easier for Canadian companies to harness their innovation to succeed. It would also position businesses to operate in the global and digital marketplace.

Before describing these changes in more detail, I will speak to the global context in which these framework laws operate.

Today's marketplace is complex and changing rapidly. Global companies are becoming local companies and competitors, and new technologies are providing companies with vast amounts of information to make decisions.

Technology also allows transactions to happen quickly across the global, and the global marketplace is more interconnected then ever before. A disruption or discovery in one part of the world can have profound consequences in another.

To remain competitive, companies must understand how their partners, suppliers, competitors, and customers do business. Our government is committed to making Canada a global innovation leader.

This means enabling businesses to grow, increasing our country's productivity, and creating well-paying jobs for the middle class. It also means Canada's marketplace framework laws must be updated to reflect a global and digital economy.

These laws must be updated to enhance investor confidence, foster competition, and contribute to an inclusive economic growth agenda. These laws should also support investment and innovation without unduly burdening businesses.

The amendments I have tabled today would provide the foundation for a 21st century marketplace.

They will align Canada’s framework laws with best practices in jurisdictions around the world.

The bill sets out measures to modify the way corporate directors are elected. The bill also contains measures to improve diversity on corporate boards and in senior management level positions.

The goal is to attract the best and brightest from as wide a talent pool as possible. This is how Canada can make full use of the competitive advantage granted to us by this extraordinary diversity of our population.

Additionally, Bill C-25 would improve corporate transparency.

It will eliminate outdated instruments of commerce and modernize shareholder communications. These changes will reflect the new norms and practices of a digital economy.

The bill would increase business certainty and flexibility as well. It would allow Canadian businesses to focus on what makes them most productive, efficient, and innovative. The laws being amended in this bill include the Canada Business Corporations Act, or CBCA.

This statute sets out the rules that facilitate the interaction among shareholders, directors, management, and other interested parties involved in corporate decision-making. In 2015, there were approximately 270,000 companies incorporated under the act. The CBCA serves as a model for other governance laws.

The Canada Cooperatives Act is the framework legislation for federally incorporated non-financial co-operatives. The Canada Not-for-profit Corporations Act is the framework law for non-share capital corporations. In 2015, there were more than 19,000 federally incorporated not-for-profit corporations under the act.

The Competition Act is a law of general application that addresses anti-competitive business conduct. It examines and seeks to address the activities of firms that may be harming competition in the marketplace. By improving and clarifying the rules under which our firms operate, we are positioning them for long-term growth.

We are also aligning Canada’s practices with international best practices in corporate governance.

October is Women's History Month. This is a time when we celebrate the women who have shaped Canada's history as leaders, entrepreneurs, scholars, artists, and trailblazers in all spheres of life. Let me address what the bill does for diversity.

As I have said before, I firmly believe it is our moral duty to promote diversity and inclusion.

Under-representation of different segments of our population is not only a question of fairness, it affects the bottom line. In the boardroom, as in life, taking into consideration viewpoints from a variety of perspectives can lead to innovative thinking and better performance. Innovation requires fresh ideas, new ideas, and the best ideas can come from anyone, anywhere.

We live in an age when anyone with a smartphone can connect, create, collaborate, trade, and sell, regardless of distance. Because the tools to create knowledge and value are now available to everyone, a teenager can start her own technology company.

A university student can launch a social-media platform that becomes a global sensation overnight.

The broader the talent pool, the greater the potential for the next great app to emerge.

Our government is committed to doing all we can to unlock the full potential of Canadians, especially those who are under-represented in certain sectors of today's economy. I know that all parliamentarians support this goal as well.

Earlier this year, this Parliament unanimously passed, and this was a point of pride, Bill C-11, which allowed Canada to become the first G7 country to adopt the Marrakesh Treaty. I was proud to announce this piece of legislation in the House and see it receive the support of all parliamentarians.

The Marrakesh Treaty benefits three million Canadians who are visually impaired or print disabled. As a result of the treaty, they will have better access to books and other copyrighted materials. As a result of better access to knowledge, these Canadians will be able to fully participate in the economy. That is how our government's commitment to diversity allows Canadians from all walks of life to become productive members of society.

Bill C-25 builds on that commitment to innovation and prosperity through diversity.

As part of the reforms to the CBCA, corporations would be required to disclose to shareholders the composition of their boards and senior management. They would also be required to make public their diversity policies. Those corporations without a diversity policy would have to explain why they do not have one.

This amendment will complement existing measures already adopted by most provincial securities regulators.

It would apply to all publicly traded CBCA corporations, regardless of which securities regulator they reported to.

By taking into account the composition of boards, investors could make informed choices when they exercised their voting rights.

These reforms are designed to facilitate a conversation between shareholders and corporations on how they are promoting diversity.

The goal is to encourage corporations to consider a broader range of candidates and skill sets among their senior leaders.

The second set of amendments contained in Bill C-25 aims to promote greater shareholder democracy. The goal is to ensure that the voting process allows shareholders to have their voices heard in a meaningful way.

The bill would make three key reforms to the process of electing corporate directors. These reforms would affect publicly traded CBCA corporations and publicly traded co-operatives incorporated under the Canada Cooperatives Act.

First, the bill would require the prescribed corporations and co-operatives to hold annual votes for the election of corporate directors. Currently the law permits directors to hold office for up to three years before a vote is required. The entrenchment of company boards can hamper innovative thinking.

Ensuring that shareholders can make changes more often is a step in the right direction.

Second, directors under the CBCA would be elected individually, not as a slate or a group of candidates. An all-or-nothing approach prevents voters from meaningfully exercising their democratic rights and bringing in the board they want.

Third, the bill would permit shareholders to vote explicitly against a candidate in an uncontested election, that is, when the number of candidates was the same as the number of board positions to be filled. Even when there was no competing candidate, a prospective director would still need enough votes in support of her candidacy to make up a majority of the votes cast to be elected.

Of course, there is more to shareholder participation than simply voting. Transparency and clarity are important to shareholders as well.

The bill would modernize shareholder communications to align practices with how businesses are conducted today. The bill would permit CBCA corporations and co-operatives incorporated under the Canada Cooperatives Act to provide their shareholders or members with online access to relevant documents related to an annual meeting. This notice and access system would reduce costs, conserve resources, and increase business efficiency.

In addition, the bill would simplify the deadline for shareholders to submit proposals to directors so that they could participate in meetings more often and effectively.

The fourth amendment would make it clear that CBCA corporations and federal non-financial co-operatives would be prohibited from issuing share certificates and share warrants in bearer form. Much like cash, a bearer share is owned by whoever holds the physical stock certificate. The issuing firm neither registers the owner nor tracks any transfers of ownership, and when these instruments are issued in blank form, they can be used as a vehicle for money laundering or terrorist financing. That is because they are easily transferrable and untraceable.

This amendment would require all shares to be registered. It is a preventive measure that would be particularly relevant to law enforcement.

It will ensure that Canada aligns its rules with the recommendations of the international Financial Action Task Force.

The bill would also amend the Competition Act to broaden the understanding of what makes one business entity affiliated with another. Currently, because of its outdated definition, there is a risk that business between affiliates could be viewed under the law as a joint action with competitors.

The existing law does not fully account for non-corporate structures, such as sole proprietorships, partnerships, or trusts. This uncertainty could lead to companies being needlessly exposed to sanctions under the act, and re-organization among affiliated companies could be interpreted as a merger of competing firms.

That process could require notifying the Commissioner of Competition. It could also incur a fee and a significant amount of paperwork. There is also the risk that a collaborative project between two affiliated companies could be treated as an arrangement between competing firms. It could be misrepresented or misinterpreted as harmful competition or outright collusion.

To address this legislative gap, the bill would update the Competition Act's rules on affiliation and would make the rules business-structure neutral. This update would ensure, clearly and explicitly, that businesses that are engaged in joint ventures with their affiliates are not subjected unwittingly to the act's enforcement provisions.

This amendment will create certainty and replace an outdated framework that can cost businesses unnecessary time and resources.

One of the key features of this bill is that it positions Canada among world leaders in corporate governance. For example, most member states of the European Union have implemented gender diversity legislation. Both the United Kingdom and Australia have required disclosure, including a comply or explain model in the latter case, which saw significant improvements in terms of board representation.

In the United States, publicly listed companies have adopted policies on majority voting for corporate directors. Even in Canada we have seen provincial securities regulators adopt similar rules that promote greater shareholder participation and corporate diversity.

These amendments are an important step forward.

They would modernize corporate governance laws to align with today's technological realities and support business efficiency. They would promote greater transparency, accountability, and public confidence in the marketplace and give investors the information they need to make informed decisions about their investments.

Above all, these amendments recognize the great asset that is our country's diversity. Canada's business community would have a crucial role in promoting diversity. Some have already done so, and I know that others will step up to show that they are committed to growing our economy by tapping Canada's full potential. By modernizing our ground rules and aligning with international standards, Canada can position itself for the inclusive innovation and growth that would propel this country going forward.

I am proud to be launching this important initiative today on behalf of the Government of Canada.

[Brian Masse, NDP, Windsor West, ON]

Madam Speaker, comply or explain is one way we can go about having gender equity on boards. It is important to note that this is only the second time this bill has been looked at and amended. We are looking at 40 years of not being actively engaged on this file, and we have seen a lot of financial issues that affected Canadians not only here at home but internationally.

The minister is looking at a comply or explain strategy, but why not take the full step and set targets to chase after to ensure that we do not have to wait around to see what is next.

Some jurisdictions that have gone with this have not been successful in making the transition, so I would suggest that perhaps we need a stronger stick. The carrot-and-stick approach is often used with corporations that have not been doing a good job with regard to some of the equality issues we have had to deal with, and this is one of them. It is not just in Canada, in particular. We are in a time when we need to make sure that there is going to be greater enforcement.

If that is not going to work, I would ask if the minister is open to an amendment I will be proposing that there be a review of this legislation within five years. I want to ensure that there is actually going to be a continuation of this goal of having greater equity in boardrooms across this country. I believe that there will be quite a discussion about comply or explain at the end of committee deliberations, but what is the backup plan?

[Navdeep Bains, Liberal, Mississauga—Malton, ON]

Madam Speaker, I would like to thank my hon. colleague for his very thoughtful question and his engagement on this bill. We have had numerous discussions about the subject-matter that he raised.

The member is right. The last time we had significant changes to the framework and the framework laws was in 2001. He is absolutely correct in his assessment of the situation at the corporate board level. Only 13.1% have women corporate directors right now. That is absolutely unacceptable. There are 40% of companies that do not have any women on their boards.

This is the challenge with which we are dealing. The idea of comply or explain, and putting forward this policy is really a reflection of watching what happened in the U.K. and Australia, when they put these measures into place. They did see a significant jump in the number of women at the senior level positions, senior management, and at the board level. We are trying to see how this unfolds.

I do acknowledge that the member opposite has put forward some ideas and thoughts with respect to amendments. There is a process in committee to look at that. As a government we do not have a monopoly on good ideas. We always look forward to the opportunity of engaging the opposition, and seeing what ideas they come back with.

That is the underlying premise of this bill. It is promoting diversity, different viewpoints and thoughts, and coming together with a progressive agenda that really speaks to our diversity, and the fact that we want to have an inclusive agenda going forward.

The member opposite raises some good points. I look forward to having that discussion, and so do my colleagues at committee, when he brings those amendments forward.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Madam Speaker, I was happy to hear this presentation, and to hear the minister speak about requiring comply or explain in boards of directors.

Just today, I was at a lunch where we talked about the media coverage of women in sport. One of the issues that came up was that at a board of directors meeting, if there are not that many women present, and they are discussing what kind of coverage they should have of women in sport, the discussion might be quite different if there are more women sitting at the table and participating in that discussion.

Does the minister agree that it is not only about having more women on boards, because it is good to have more women on boards, but because of the ripple effect that it can have as to the way we do things in this country? It can have a ripple effect that could actually bring gender parity all the way through different ripples, if we include more women.

[Navdeep Bains, Liberal, Mississauga—Malton, ON]

Madam Speaker, the member raises a very good point. It is not simply a moral duty and obligation that we have as a society to make sure we see better diversity reflected at the most senior levels, at the board level, and senior management, it is also good business practice. It is good for the bottom line. It is good for the customers. It is good for having new, creative ideas and solutions, and being innovative, thoughtful, and progressive.

We want to make sure that we see this replicated, not only in corporate Canada but at the government level. Under the leadership of our Prime Minister, we want to demonstrate that, as we move forward with appointments, we have a process that is really going to bring the best and brightest forward. We are also going to have a strong diversity lens to make sure that we reflect the true diversity in society in the government appointment process.

We also want to not only show leadership at the government level but to tell corporate Canada and businesses that they have a responsibility, an obligation, to promote diversity. I am confident, when they put forward the diversity policies, it is going to be very engaging for the shareholders, and it is really going to be good for the bottom line.

[Luc Berthold, Conservative, Mégantic—L'Érable, QC]

Madam Speaker, this bill is clearly of great interest to us.

I was the mayor of Thetford Mines for seven years, and there was only one woman around the table of ten councillors. When she decided to step down, I was very worried that the council would not have female representation. That would have been unfortunate. Together with other community members, I had to find ways to attract women to the job and to ensure that they were engaged and not intimidated by the overrepresentation of men. They have their place on municipal councils and also on boards of directors. I believe that women really do have a place there.

Has the minister thought of other ways to promote these positions on corporate boards? It is good to show openness, but we must pave the way and ensure that women really do have a place, and not just a symbolic place.

[Navdeep Bains, Liberal, Mississauga—Malton, ON]

Madam Speaker, I agree with my colleague. He makes a strong case and asks a good question.

His view is shared by many in the House, and those who were part of the consultation process. Just to highlight that, the Canadian Coalition for Good Governance, for example, is very supportive and said when these amendments are enacted, the federal government will have made many of the important changes required to bring Canada's federal corporate laws to best in class global standards.

We also have received support from the Ontario Securities Commission. Its CEO said:

As we continue to call on corporate Canada to make gender diversity a priority in the boardroom and executive suite, we are especially pleased by the proposal to expand our comply or explain approach to more Canadian companies.

Again, there is more support from the Ontario Teachers' Pension Plan. We want to create this new inclusive culture that promotes diversity at the board level. Hopefully, it will expand to different levels of government, and different aspects of society because it is not only the right thing to do but it is also good for businesses.

[Wayne Stetski, NDP, Kootenay—Columbia, BC]

Madam Speaker, I have always believed that the more diverse a committee, or a board, or the House of Commons, the better the discussion and the decision-making.

I am happy to see these changes coming forward. I also hope that the hon. member will support the amendment, and actually attach some targets to it.

I am curious, if there are no targets, what is the government planning to do to at least measure whether this is actually having any impact or not moving forward?

[Navdeep Bains, Liberal, Mississauga—Malton, ON]

Madam Speaker, the objective of the bill is to change behaviour. The objective of the bill is to see improvements at the corporate level, at the management level, and we will be monitoring it very closely.

We want to see how progress is being made, and that is part of our government's overall objective in promoting diversity. With respect to amendments or changes, I look forward to the discussion that will take place at committee with hon. colleagues. I also look forward to appearing before committee as well to speak about that and many other issues that will be presented.

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

Madam Speaker, before I begin, I ask for unanimous consent to share my time with the member for Mégantic—L'Érable.

[The Assistant Deputy Speaker, NDP, Carol Hughes]

Does the member have unanimous consent?

[Some hon. members]

Agreed.

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

Madam Speaker, the Minister of Innovation, Science and Economic Development introduced Bill C-25, which is an act to amend the Canada Business Corporations Act, the Canada Cooperatives Act, the Canada Not-for-profit Corporations Act, and the Competition Act.

The proposed amendments by the Liberals in Bill C-25 stem from a House of Commons committee-led statutory review in 2010, which in turn led to further consultation undertaken in 2014 by our previous Conservative government. Stakeholders raised many important and complex points on a number of aspects of corporate governance during those consultations.

After our previous Conservative government concluded the consultations in 2014, we made a proposal to modernize Canada's corporate governance framework in our 2015 budget. For those in the House who may not be aware, let me read an excerpt from page 140 of that 2015 economic action plan:

...the Government will propose amendments to the Canada Business Corporations Act to promote gender diversity among public companies, using the widely recognized “comply or explain” model...Amendments will also be proposed to modernize director election processes and communications... to strengthen corporate transparency through an explicit ban on bearer instruments...Amendments to related statutes governing cooperatives and not-for-profit corporations will also be introduced...

I hate to steal the minister's thunder, but Bill C-25 is the minister's second piece of legislation he has tabled since being in office now for one year. Just like his first piece of legislation, this, Bill C-25, came straight from our previous Conservative government's 2015 budget.

I am really pleased to see that all the hard work that our previous government did is continuing through the Liberals, and their need to produce at least some form of legislation, but I cannot help but wonder if this is what the Liberals meant when they talked to Canadians about real change.

If adopted, Bill C-25 would result in changes to the corporate governance regime for reporting issuers incorporated under the Canada Business Corporations Act. The CBCA is the incorporating statute for nearly 270,000 corporations. Although most of these are small or medium-sized and privately held, a large number of Canada's largest reporting issuers are also governed by CBCA.

The proposed amendments cover several key corporate governance matters, including majority voting, individual voting, annual elections, notice and access, diversity related disclosure, and shareholder proposal filing deadlines.

I am pleased to see that the Liberals moved forward with the comply or explain model that we recommended. It has been proven that more diverse boards lead to better overall decision-making, better corporate performance, better organizations, and, indeed, better economies.

Our Conservative Party has never been on the sidelines when it comes to diversity firsts in Canada. In fact, it was the Conservative Party who had the first female prime minister; who elected the first female MP to the House of Commons; the first Chinese, Muslim, Black, Latino, Hindu, Pakistani, Japanese, and physically disabled MPs; and that list goes on. That is a record of which to be proud.

Our Conservative Party believes in merit not quotas. I am pleased we are not going to be missing out on talent, nor will we be losing out on that talent because of artificial quotas.

Since the Ontario Securities Commission implemented the comply or explain model just two years ago, the number of women on boards there has steadily increased to 20%.

However, looking at Canada as a whole, in larger companies women make up an average of 34% of boards. Implementing the widely used comply or explain model is the first step to seeing those numbers increase too. If enacted, that change would affect about 600 of the approximately 1,500 companies on the TSX.

When it comes to modernizing corporate governance and reducing red tape, our previous government made massive strides. We believe in fostering an environment in which businesses can grow and contribute to Canada's long-term prosperity. In fact, we recognize that businesses play a vital role in creating jobs and generating economic growth, and that strong business strategies are central to a company's success in creating and sustaining a competitive edge.

The changes proposed to the Competition Act, as we are discussing today, will do just that. They would reduce business uncertainty, create a competitive marketplace, and prevent anti-competitive practices. The amendments would also reduce the administrative burden on businesses.

Our previous Conservative government set a precedent, the first of its kind in any country in fact, when we introduced the one-for-one rule, which brought a new level of discipline to how government fosters a more predictable environment for business through the reduction of red tape.

We took a number of steps to reduce red tape facing businesses. Indeed, since 2012, the red tape reduction action plan has proven to be a successful, system-wide control on the growth of regulatory red tape. Our previous government saved Canadian businesses over $22 million in the administrative burden, as well as some 290,000 hours in time spent dealing with the unnecessary regulatory burden.

Further enhancing the changes that we made while in government, Bill C-25 was to be our next step in maximizing corporate governance.

More accountability and transparency are key for any organization in government, and a high performance board is one that is accountable. The right to vote is important for shareholders and for fundamental democracy.

I am pleased to see that shareholder democracy and participation will better align with securities rules and that corporations would be required under the CBCA to hold annual elections, elect directors individually, and use a majority voting standard. This proposal will bring an end to the debate over those circumstances in which an under-supported director may remain on the board.

The proposed amendments in Bill C-25 would further implement many policies and practices that are already addressed under TSX rules and security laws. Modernizing the acts addressed in Bill C-25 is a welcome improvement to the federal corporate statute and a reflection of the need to enhance companies' corporate governance practices.

If the minister wants to continue putting forward legislation that comes straight from Conservative budgets, well, those would be welcome too.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, I suspect the bill would not have been necessary if the former prime minister and Conservative government had been successful at getting the job done on the file. However, I am glad and grateful that the official opposition appears to be supportive of the legislation.

Part of it is also demonstrating leadership on the file. I think we have seen that leadership demonstrated virtually from day one by this particular government when it appointed a gender neutral cabinet.

Would the member not agree that not only is it important that Canada bring forward this legislation but also that it demonstrates the good will we have seen from the Prime Minister and other jurisdictions in Canada to date?

[Diane Finley, Conservative, Haldimand—Norfolk, ON]

Madam Speaker, in fact, when we formed government our cabinet was extremely diverse. It had more women than ever before in cabinet, and we were very proud of that.

Not only that, but all of the women who were in cabinet were paid according to their responsibilities. It was not just equal pay for equal title, but equal pay for equal work, which I believe is important. It goes back to being a meritocracy.

As a woman, I do not want to think I got the job just because of the way my jacket buttons, if the buttons are to the right or to the left. I want to know that I got that job because of my abilities. We want to make sure that boards do the same thing, which is why we do not believe in quotas. We know, too, that all the records show that as the diversity of boards increase, so does the performance of the company.