Thank you very much.
Good afternoon, Mr. Chairman and members of the House of Commons Special Committee on Cooperatives, and thank you for this opportunity.
My name is Frank Lowery. I am senior vice-president, general counsel, and secretary of The Co-operators Group Limited.
One in three Canadians is a member of a cooperative or a credit union, and over 10,000 Canadian cooperatives and credit unions employ in excess of 150,000 people and have combined assets of approximately $167 billion.
The Co-operators Group is one of these cooperative organizations.
We are owned by 45 cooperatives, credit union centrals, federations of caisses populaires, representative farm organizations, and like-minded organizations, with a combined underlying membership of 4.5 million Canadians. As one of Canada's most prominent financial services organizations, we are proud to provide insurance and financial services to more than two million Canadians. We strive to be the insurer of choice for Canadian cooperatives and credit unions, but we serve all Canadians
Just as many cooperatives spring from unfulfilled social and economic needs, The Co-operators was formed by a group of farmers who sought insurance protection that the private capital market would not provide. Despite our humble beginnings, we are an excellent example of how the cooperative model is a thriving form of enterprise.
Inherent in our cooperative values is a commitment to the communities in which we operate through employment, philanthropy, community economic development, and cooperative development. For example, our co-op development fund provides grants to small, emerging co-ops throughout the country. We also support the cooperative development infrastructure in Canada. Last year alone we provided more than $650,000 in fees and dues to various co-op associations across Canada. Our charitable foundation and associated non-profit provides support for sustainable and community-based development. We provide pro bono and in-kind services for cooperative development both in Canada and abroad.
We are also very proud this year that our CEO, Kathy Bardswick, is Canada's representative on the International Co-operative Alliance.
Let me talk about the role of cooperatives in Canada.
As cooperators, we know that cooperatives contribute to Canada's social fabric and the survival of communities because they are formed to meet common needs and are democratically run. The cooperative model is a form of business enterprise that is most adapted to accomplishing social and public policy objectives. That uniqueness of form has been most particularly recognized during the economic crisis of the last four years when public share and private capital corporations have been bailed out at public expense, while cooperatives generally have not. Public confidence in the financial sector and all of its related activities has been shaken, but as cooperatives, we have confidence in the ethical value base of cooperative enterprises that has never been stronger. Cooperatives, like all business enterprises, require a regulatory environment that is efficient and that does not deter investment or productivity, but they also need an environment that takes into account the uniqueness of the cooperative form.
I'm speaking specifically about the Canada Cooperatives Act. Today I would like to focus most of my remarks on the uniqueness of the cooperative form and the need for legislation that recognizes it. For cooperatives to better succeed—for there to be more and better cooperators in the future—the enabling cooperative statute needs to be modified. Without these changes, the many varieties of cooperatives in all sectors of the economy that will significantly contribute to Canada's future by providing good jobs and stability will be held back. The Canada Cooperatives Act must more appropriately recognize the unique nature of the cooperative form of enterprise.
Modernization of the Canada Cooperatives Act in 1998 drew upon the Canada Business Corporations Act for guidance. The CBCA is a statute governing share capital-based business organizations rather than membership-based or values-based organizations such as cooperatives, fraternal benefits societies, or mutuals.
As might be expected, provisions that make sense for publicly traded capital corporations do not necessarily make sense for member-based cooperative organizations.
In this vein, there are really three issues that I want to bring to your attention with respect to the Canada Cooperatives Act. The first is carrying on business on a cooperative basis. Subsection 18(2) of the act allows an interested person to make an application to the court if the person believes the cooperative is not organized, operated, or carrying on business on a cooperative basis. “Cooperative basis” is defined in section 7 of the act and is basically consistent with the statement on cooperative identity maintained by the ICA, which guides all cooperative organizations.
Section 329 of the act gives a court in the area in which the cooperative has its registered office the ability to have a very wide investigation and gives it a wide range of remedies. Paragraph 313(1)(a) of the act then gives a court the power to order the liquidation and dissolution of the cooperative if the court is of the view that the cooperative no longer carries on business on a cooperative basis.
Think carefully about what that means. It means that a person, including a person who might not like cooperatives or who might have any number of motives to wind up a cooperative, has the ability to access a remedy to dissolve the co-op without going to the membership and without really accessing the democratic process within the cooperative, which is the whole essence of a cooperative. When that person applies, they apply to a judge, who normally would have had little exposure to co-ops or to cooperative law and who will likely, in rendering a decision and making a judgment, bring to bear public share company principles and precedents.
Without going into any more detail on this specific issue, this is a very draconian remedy, and though to the best of my knowledge it has not yet been utilized by anyone, it is a disincentive to many large organizations not yet under the Canada Cooperatives Act to use this act. So the bigger you become, the less likely you would want to use the Canada Cooperatives Act.
To correct this, it is our respectful view that the determination as to whether or not a cooperative continues to operate on a cooperative basis should be made by a panel of experts appointed by the CCA and CCCM, rather than a court, which normally applies public share capital company law. In addition, the test should be modified such that a cooperative needs to “substantively” operate on a cooperative basis. Sanctions, if it doesn't meet this test, should begin with giving the cooperative a period of time, something like six months, to rectify its failings with respect to this test.
The second issue really relates to the broader act itself. Because it was drafted based on a statute designed for stock companies and not membership-based entities, it has sections within it that might make sense for a publicly traded share capital company that are not truly democratic, given that differential votes are attached to different classes of shares or that minority shareholders have no rights, but it does not necessarily make sense for a democratically controlled cooperative enterprise.
There is a large body of law around the so-called oppression remedy that exists in public corporations to protect minority shareholders, but no such body of law exists for cooperatives. One really wonders why or how such a provision made it into a cooperative act, but it did. We think this needs to be reviewed and, if doing so is considered appropriate, removed.
The dissent right, as it is known in public company law, is also a concept that makes great sense in public share capital corporations that have minority shareholders who have no real influence, but in cooperatives it is an article of faith that votes are tied to membership and not to capital. First-tier co-ops, by definition, must have one member to one vote.
Finally, in corporations that are really capital vehicles, where the owners of capital have a disproportionate share and where occasionally one owner wants to take out another owner, the compulsory acquisition rules also make sense—the majority of a minority, and so on—but in cooperatives this does not necessarily make sense.
Cooperative entities are inherently, and by definition, democratic institutions.
In a democracy, while people have a right to disagree, the majority ultimately decides, and the minority needs to follow the common decision. I heard that earlier this morning: it's one person, one vote. We do not, for example, have the right to dissent with respect to how our taxes are spent, or with respect to other public policy decisions that are made on our behalf by people who are popularly elected. Cooperatives are autonomous groups of people who are brought together for a common purpose and who participate with respect to that common purpose in a democratic way—just as it is in our own democracy.
In a truly democratic organization or society, once the majority has chosen the path that is to be followed, all of the members of that cooperative or society follow. They may disagree with it, but inherent in democratic theory is the right of the popularly elected to set public policy. If in time they don't do this, they will likely be defeated and someone else will be elected. But that is the sanction, not an oppression or dissent right.
The last part is actually not in the act but is a suggestion we would make. This concept should be considered and, once properly drafted, should be included.
In the last year or so there has been a lot of discussion regarding demutualization measures for property and casualty insurance companies in Canada. There are currently no rules governing the demutualization of property and casualty insurance companies in Canada, but it is the expressed intention of the government to issue such regulations for public consultation some time this summer.
About 10 years ago there was a wave of demutualizations that occurred in the life insurance sector. The government of the day developed regulations to govern those demutualizations. We all know how that worked out.
When a company demutualizes, what really happens—and this is my view, since I have been around and have worked for mutual companies—is that the company is converted into a stock company with shares that ultimately find their way onto public markets. There are winners and losers, and those who have tended to win are a small minority of policyholders, board members, senior managers, brokers, and professional consultants who receive windfall benefits. This was less so in the life sector due to the comparatively larger group of participating policyholders but will be much more evident in the P and C sector if the government adopts rules similar to those for life company demutualization.
The mutual, the cooperative, and the fraternal benefit forms of business do not really benefit from this. In addition, all of the ordinary Canadians who have contributed over time to the wealth and surplus of these companies do not benefit. Only those who are current or relatively recent participating policyholders benefit, even if they didn't really create the vast majority of the wealth and surplus.
The windfalls generated by this type of activity ensure that mutuals, cooperatives, and fraternal benefit organizations as a group will never get to a size that can compete with the private sector capital companies. Though many generations contributed to create the surplus and to support the democratic form of enterprise, there are always a few who are happy to take it and get rid of the democratic form.
This should actually provide an advantage for other member-based organizations in a world where consolidations appear to be essential to retain competitiveness, but in fact quite the opposite is true.
For a company like The Co-operators, if we wanted to keep a mutual in the mutual sector, under regulations similar to those for life company demutualization, we would basically have to have it demutualized, take away all of the benefits of membership, and effectively purchase it as an asset. That means that those with access to large amounts of capital are the ones who our system permits—