Legal Feeds Blog
- However CSA stats show mining, oil & gas, and tech sectors have fewest women at the table
A report from the University of Calgary and Alberta Securities Commission shows the number of women on boards in that province is on the rise, but the oil patch has a long way to go compared to other sectors.
|Number of women on boards by industry (Source: CSA’s ‘Staff Review of Women on Boards and in Executive Officer Positions’)|
The study found:
• 22 per cent of all new board directors of TSX-listed Alberta issuers appointed in 2015 are women.
• Women hold nine per cent of all TSX-listed board positions of Alberta issuers, up from eight per cent in 2014. The number of TSXV-listed board positions held by women remained steady at four per cent year over year.
• Women hold 20.3 per cent of all board positions of Alberta issuers in the TSX/S&P 60 Index, in line with the average number of women on boards for the entire TSX/S&P 60 Index (20.8 per cent) according to Catalyst’s most recent survey.
• Of all companies surveyed, 29 per cent have one woman or more on the board of directors, while only three per cent have three or more women on their board. That is up over last year when 25 per cent of all companies surveyed had one woman or more on their board of directors; two per cent had three or more.
However, according to statistics released by the Canadian Securities Administrators Monday — in “Staff Review of Women on Boards and in Executive Officer Positions” — mining, along with oil and gas and technology industries had the most issuers with no women on their board of directors, at 60 per cent or more in each sector.
About half of all issuers in the biotechnology, mining, oil and gas, and technology sectors do not have any female executive officers.
Utilities and retail sectors had the most women on their boards with 57 per cent and 43 per cent of issuers respectively, having two or more female directors. They also had the fewest boards with no women on them.
While the numbers in Alberta appear to be increasing, the province is one of three, along with British Columbia and Prince Edward Island, that did not agree to the Canadian Security Administrators’ guidance issued last December regarding women on boards.
Securities regulators in Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Quebec, and Saskatchewan did adopt the rules requiring companies to disclose, on an annual basis, information on policies relating to the identification and nomination of women directors, targets for women on boards and in executive officer positions as well as the number and percentage of women on the issuer’s board of directors and in executive officer positions.
Absent this kind of direction, governance expert Richard Leblanc says the change won’t just happen organically.
“What the oil patch should do is endorse the need for measureable objectives for women on boards, and develop a talent pool for women early on in their executive careers to identify and nurture high potential board talent,” says Richard Leblanc, an associate professor in law, governance, and ethics at York University.
Leblanc says regulators want to see progress on increasing the number of women on boards within three years and with one year down, “the clock is ticking.”
“Regulators are clearly seized with enhancing women on boards, in dozens of countries. They have shown they will act. I predict they will act further in Canada if the directorial community does not does not make adequate progress,” he says.
Shooting death at Vancouver mall linked to gangs: police, Canadian Press
A Toronto lawyer who lost his copyright claim against Wal-Mart Stores Inc. over his political memoir about the former prime minister of Kenya is taking his case to the Ontario Court of Appeal.
Miguna Miguna, a lawyer who spent four years as a key adviser to former prime minister Raila Odinga, before the pair fell out, took the retail giant to task after learning it was offering his book, Peeling Back the Mask: A Quest for Justice in Kenya, for sale on walmart.com. He also sued Consortium Book Sales and Distribution LLC, a company identified on walmart.com as the publisher of the book.
Miguna claimed he didn’t consent to any publication, production, or release of the book by the defendants, Ontario Superior Court Justice Graeme Mew noted in his decision this month granting summary judgment in the case.
Miguna alleged the proper publisher was Gilgamesh Africa Ltd., a company granted the right to publish the book through an agreement between Miguna and Gilgamesh Publishing Ltd. Consortium, however, said it was merely a distributor of the book and it had a distribution agreement with Gilgamesh Publishing Ltd. In fact, it said it never actually supplied a single copy of the book to anyone despite its appearance on walmart.com.
But as Mew noted, Miguna claimed his relationship with Gilgamesh Africa had fallen apart. He alleged it never delivered on its contractual obligations to him and never marketed, distributed, or sold the book. Alleging the publishing agreement “was a fraud from the beginning,” Miguna said he had terminated the contract in January 2013.
In considering the defendants’ motion for summary judgment this month, Mew found Miguna’s dispute with the Gilgamesh entities wasn’t the issue before him.
“There is no evidence in the record that the defendants dealt with any copy of the book that was not produced by Gilgamesh Africa or under its authority, or that does not bear the imprints ‘Gilgamesh Africa 2012’ (there is a reference in the record to the existence of pirated copies of the book in Kenya, but there is no suggestion that there is any link between that and the actions of the defendants in this case),” he wrote in Miguna v. Walmart Canada.
As a result, Mew found there were no genuine issues requiring a trial and there was no reasonable basis to believe further discovery would address the deficiencies in the case. He granted the defendants’ motion to dismiss the action and suggested Miguna should pay their costs on a partial indemnity scale.
Last week, however, Miguna filed a notice of appeal seeking to set aside Mew’s decision in its entirety. Among other things, he argues Mew committed several errors of law by failing to correctly apply the Copyright Act and case law as well as the appropriate test for summary judgment.
“He failed to take a hard look at the evidence and fully appreciate all the material evidence before him,” Miguna says in his notice of appeal.
“In the end, Justice Mew’s Reasons for Judgment is primarily a regurgitation of the respondents’ arguments; not a reasoned decision supported by material facts and relevant, credible and reliable evidence before the court.”
“The appellant had produced a true copy of the Assignment of Contract to Gilgamesh Africa Ltd. dated July 12, 2012. After the Contract Assignment, there was no residual rights that vested on Gilgamesh Publishing Ltd., hence the latter could not have assigned distribution rights to Consortium as alleged by the respondents in their pleadings and evidence. Moreover, on January 6, 2013, the appellant terminated the publishing contract with Gilgamesh Africa Ltd. This proves that as of March 2013 when Gilgamesh Publishing Ltd. and Consortium were purporting to enter into a distribution agreement, they could not have done so validly even if Gilgamesh Africa Ltd. had given them authorization (a claim that the respondents had not made and the appellant has not conceded in any event).”
Update 1:55 pm: Comments from Ilan Ishai removed due to lack of permission from client.
Mississauga woman faces charges for 2007 sexual assault case, Canadian Press
Canadian hoverboard seller faces global patent war, Canadian Press
Suspect in Mississauga murder turns himself into police, Canadian Press
The Supreme Court of Canada ruled today that the Ontario Energy Board was justified in denying Ontario Power Generation’s full 2011 and 2012 rate increase requests in the hopes it will send a signal to better control operating costs for the consumer.
|The Supreme Court says the OEB was justified in denying OPG’s rate increase. (Photo: Ontario Power Generation)|
“It’s an affirmation of the discretion of the experts; certain costs or expenses do not mandate particular decisions by the regulators,” says Zacher. “The regulator was not beholden to those [union] expenses. It’s settled some uncertainty.”
With one dissenting judge on the panel of seven, the majority stated in Ontario (Energy Board) v. Ontario Power Generation Inc.: “the [OEB’s] disallowance may have adversely impacted OPG’s ability to earn its cost of capital in the short run. Nevertheless, the disallowance was intended to send a clear signal that OPG must take responsibility for improving its performance.”
In May 2010, OPG made a routine application to the Ontario Energy Board to have its electricity rates fixed for 2011 and 2012. The OEB determined that OPG’s staffing levels and employment costs were too high and provided a rate $145 million less than the $6.9 billion revenue requirement for the two-year term OPG had been seeking.
However, OPG had previously negotiated staffing levels and wages for its unionized workforce through 2012 and argued on appeal it was not in a position to reduce those fixed costs.
A majority at the Divisional Court ruled the OEB’s denial of the full rate increase request was reasonable and should not be disturbed on appeal, however, a dissenting judge concluded that the union agreements imposed committed compensation costs on OPG and a prudence review by the SCC was required to determine if the rate request was justified and reasonable.
“Such a signal may, in the short run, provide the necessary impetus for OPG to bring its compensation costs in line with that, in the Board’s opinion, consumers should justly expect to pay for an efficiently provided service,” wrote Justice Marshall Rothstein in today’s ruling. “Sending such a signal is consistent with the Board’s market proxy role and its objectives.”
Justice Rosalie Abella, the lone dissenter, stated she believed the OEB erred in its denial “to separately assess the compensation costs committed as a result of the collective agreements from other compensation costs” and “ignored not only its own methodological template, but labour law as well.”
“The Board’s decision was unreasonable because the Board failed to apply the methodology set out for itself for evaluating just and reasonable payment amounts,” she stated. “It [OEB] both ignored the legally binding nature of the collective agreements between Ontario Power Generation and the unions and failed to distinguish between committed compensation costs and those that were reducible.”
12 Chilean men arrested in Toronto break-ins, Canadian Press
B.C. politicians demand end of rape culture, Canadian Press
Are passengers in automobiles “using” those vehicles? If a recent decision at the British Columbia Court of Appeal stands, they indeed are — and that legislative interpretation could have repercussions for the auto insurance industry.
|Lawyer Douglas MacAdams says the decision clarifies law that has been “murky and contentious for many, many years, and to the benefit of the injured.”|
The incident occurred in July 2006, as the appellant, Marnetta Felix, drove her drunken and argumentative boyfriend, Kevin Hearne, home on the highway. A couple of times, Hearne grabbed the steering wheel, apparently trying to scare his girlfriend.
When he grabbed the wheel the third time, however, Hearne pulled it and crashed the car, killing himself and seriously injuring Felix.
What did legislature intend?
Felix sued Hearne’s estate and won a judgment of $792,000 plus costs and then brought an action against the Insurance Corporation of British Columbia for indemnification. The B.C. Supreme Court, however, sided with the public insurance administrator, citing specific regulations that seemingly exclude such incidents.
That decision was struck down yesterday by the BCCA in a unanimous ruling written by Justice Elizabeth Bennett, who expanded the contextual scope of the case by citing continual amendments indicating the legislature’s intent to provide universal, comprehensive coverage in all incidents involving motor vehicles.
In 1975, for example, the province’s regulations defined an insured person as “a [licensed] driver . . . who operates or drives . . . with consent”; in 1984, the licensing requirement was dropped and the definition was broadened as “an individual who with . . . consent . . . operates the vehicle”; and in 2001, the definition was broadened further as “an individual who with consent . . . uses or operates the vehicle.”
The introduction of the word “uses,” to Bennett’s mind, demonstrates a clear intention by the province to include non-drivers in the vehicle.
“‘Use’ is general enough to include a passenger passively using a motor vehicle for transportation. . . . [The relevant provisions] exemplify the intention of the legislature to create a universal insurance scheme to address the identified public policy interest.”
Case law: unusual auto injuries
Bennett goes on to cite a couple of other cases where indemnification was provided in unusual motor vehicle incidents. In Citadel General Assurance v. Vytlingam, insurance was provided for a man who suffered injuries resulting from large rocks that had been dropped from an overpass. In Amos v. ICBC, meanwhile, a man was insured for injuries sustained during an attempted carjacking.
Douglas MacAdams, who represented Felix before the BCCA, says his case also benefited from the 2014 decision in Niedermeyer v. Charlton, in which a tour operator claimed he was absolved of liability in a car crash because his extreme-sports-loving passengers had signed a waiver. The courts, needless to say, disagreed.
“The court of appeal used that case as a way to speak lovingly and comprehensively about the B.C. automobile insurance program,” says MacAdams. “That certainly put the wind in my sails.”
These cases, coupled with amendments that have consistently broadened coverage for motor vehicle users in the province, were enough to win the day for the appellant.
“The word ‘use’ is to be considered in the context of the legislative scheme to provide ‘access to compensation for those who suffer losses’ as a result of a motor vehicle accident, along with the legislative history, context and jurisprudence noted above.”
“While a passenger, or user, in a moving automobile, Mr. Hearne grabbed the steering wheel causing the accident that led to Ms. Felix’s injuries. . . . There is, in my view, a clear unbroken chain of causation from his negligent act to her injuries.”
MacAdams says the decision clarifies law that has been “murky and contentious for many, many years, and to the benefit of the injured.” Further, he notes that it will have implications not only for public insurance schemes operating in B.C., Saskatchewan, Manitoba, and Quebec, but also for the private auto insurance industry.
“As I understand it,” he says, “most insurance documentation across the country includes some formula that has in it the word ‘use’ so I think, yes, lawyers in other provinces are going to pick up Felix and say, ‘Hey look at this.’”
B.C. woman says Mounties threatened to seize her children, Canadian Press
Alberta double-murder suspect taken to hospital, Canadian Press
The next year will see increased hiring activity in the Canadian legal market and lawyers can expect a 2.7-per-cent overall uptick in salaries, according to a new survey by Robert Half Legal salary guide.
|Business law, privacy & data security, ethics and corporate governance, and family law predicted to be growth areas for legal jobs in 2016. Source: Robert Half Legal 2016 Salary Guide|
Law firm lawyers with 10 years of experience should expect an even greater raise, the guide says, but demand is on the rise for in-house counsel as well.
“Corporate legal departments are responding to increasing business demands and adding staff at every level to address legal work related to compliance requirements, contract administration and industry-specific issues,” according to the guide, which says technology, financial services, energy, and insurance are among sectors that have seen increased hiring.
The “candidate-driven market” is a result of high demand for specialized legal skillsets, says Gene Roberts, division director of Robert Half Legal in Toronto. “It’s making those people who have those specialized legal talents far more in demand because of the breadth of things they can kind of take on,” he says.
Legal professionals with specialized skills are often receiving competitive counter-offers, said Charles Volkert, executive director of Robert Half Legal.
“Employers who are reluctant to offer competitive compensation packages or expedite the hiring process risk losing highly sought-after legal professionals to other organizations,” he said.
When it comes to legal specialists, e-discovery experts are going to see the largest gains in their annual base compensation, Robert Half also predicts. Litigation Support and e-discovery directors with 10 or more years of experience will see a 5.8-per-cent uptick in pay next year, with salaries expected to be in the range of $98,500 to $129,750.
“As litigation becomes far more intricate and complicated, these matters are starting to see a lot more attention and a lot more hands-on work,” Roberts says, adding that law firms and law departments are seeking professional help to do collection and review work in cost-effective ways.
Firms “are seeing that sometimes it makes more sense to have a specialized team of e-discovery lawyers come in to do a document review rather than having articling students or [junior] associates handling these absolutely massive and complicated matters,” Roberts adds.
By the numbers:
• Average starting salaries for lawyers at law firms are expected to increase 3.5 per cent in 2016.
• Lawyers with 10 or more years of experience working at a midsize law firm (35 to 75 lawyers) are expected to see a pay increase of 4.5 per cent from 2015. That’s an average range of $165,250 to $233,500 annually.
• At a small-to-midsize law firm (10 to 35 lawyers), lawyers with 10 or more years of experience should see starting salaries go up by 4.2 per cent to the range of $139,750 to $203,250 per year.
• First-year associates in big firms (75 lawyers or more) are expected to earn between $87,250 and $99,750, a 3-per-cent increase over Robert Half Legal’s 2015 projections.
• In-house counsel are projected to see an average raise of 2.9 per cent from 2015. Pay for corporate lawyers with four to nine years of experience at large companies (more than $250 million in revenue) is expected to go up by 3.3 per cent to the range of $149,500 to $246,000 annually.
Mohamed Fahmy pardoned by Egyptian president, Canadian Press
Suspect in triple homicide to appear in Ontario court, Canadian Press
Vancouver pot dispensaries will fight closure if not approved, Canadian Press
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