Canada

Paromita (Mita) Chatterjee, Associate
Paul Hastings (Washington)

In Canada, the issue of diversity on corporate boards has received increasing attention over the past decade from legislators, policy advocates, and members of the business community.  Yet despite these efforts, the pace of change with respect to women and minorities in leadership roles in Canada has lagged behind other countries.  

Provincial and Federal Initiatives See Progress

The Canadian government has taken an increasingly active role in initiatives to increase the proportion of women on corporate boards.  In 2006, the Government of the Province of Quebec implemented a law that required Quebec Crown corporations—which are state-owned and controlled enterprises (“SOEs”)—to have equal representation of men and women on their boards of directors by December 2011.1   By November 2011, the Prime Mister of Quebec was able to report that the government had achieved its goal and that all 22 Crown corporations had achieved gender parity.2 Moreover, he noted that the proportion of women in Quebec’s government had increased more than 90% during the 2006 to 2011 period. In 2016, the Ontario government announced that it had set a target of having women make up at least 40% of all appointments to every provincial board and agency by 2019.4

The Ontario Government was the first jurisdiction in 2014 to pass securities law rule amendments to National Instrument 58-101, Disclosure of Corporate Governance Practices, and Form 58-101F, Corporate Governance Disclosure, that encourage greater representation of women on boards and in executive officer positions in Toronto Stock Exchange (TSX)-listed companies.5   This regulatory approach has now been adopted by 10 Canadian jurisdictions.6  By requiring annual disclosures with respect to women on boards and in executive officer positions, this model aims to increase transparency and drive greater representation of women on boards in Canada.7   Since its implementation, gains have been seen in the representation of women on boards.  From 2015 to 2017, women’s representation on boards has increased about 3%, with approximately 14% of board seats occupied by women.8   Yet these gains have not translated to other minorities, as minority representation has remained flat for this period.9   Maureen Jensen, the chair of the Ontario Securities Commission, recently suggested revising existing provisions and possibly taking other regulatory action such as disclosure enhancements.10

In 2017, the Canadian federal government passed Bill C-25, which included amendments to the federal corporations’ statutes that would require certain corporations incorporated under the Canada Business Corporations Act to provide their shareholders annually with certain disclosures regarding diversity among the directors and members of senior management. The regulations, when implemented, will require disclosure regarding diversity in addition to gender.11   This bill, which was enacted into law in May 2018, follows the National Instrument 58-101 “comply and explain” model, but further requires that disclosure apply not to just women, but also designated groups, including “indigenous Canadians, persons with disabilities, and members of visible minorities.”12 Similar changes were proposed to the Business Corporations Act (Ontario) (OBCA) in a private members’ bill.  Although the bill has passed a second reading in the Ontario Legislative Assembly, it remains unclear whether the bill will be passed into law.13  

Stock Exchange Listing Requirements

None of Canada’s stock exchanges include gender-related provisions in their respective listing requirements.14 While, as noted above, the disclosure requirements include disclosures related to gender diversity, the Toronto Stock Exchange (TSX) has no specific listing requirements related to diversity, gender or otherwise.

Public Advocacy Efforts

Non-governmental policy groups also have taken up the cause of increasing diversity on Canada’s corporate boards.  The Canadian Board Diversity Council (the “CBDC”) was created in 2009 to promote board diversity in Canada by increasing Financial Post 500 (FP500) and public sector board representation of women, visible minorities, Aboriginal peoples, persons with disabilities, and lesbian, gay, bisexual and transgender (LGBT) persons.  As part of its mission, the CBDC aims to increase the percentage of women on the boards of Canada’s largest organizations. The CBDC issues an annual report tracking data regarding representation among directors and executives of FP500 companies. 

In 2011, the CBDC also launched the Diversity 50 campaign, which is a sponsor-driven approach to improving board diversity in Canada.  Every year, the CBDC releases a list of 50 diverse individuals as qualified by criteria reviewed by a group of Canada’s leading CEOs, which include individuals from HSBC Canada, Deloitte, and Norton Rose.  The Diversity 50 list represents a database of diverse candidates for board of director positions in Canada’s largest 500 organizations. 

Additionally, in 2006, DiverseCity on Board, launched in Toronto, with the mission to ensure that governance boards of non-profit and public bodies reflect the diversity of the populations they serve.  In less than a decade, the program has expanded from Toronto, to other major cities in Canada, and has become the “go to” program that connects qualified, pre-screened candidates from visible minority and under-represented communities to volunteer board positions.  The program also provides online governance training to organizations and individuals regardless of their background.

Conclusion

While government initiatives to increase the representation of women and minorities on Canadian corporate boards are currently being implemented, both industry groups and provincial governments have continued their efforts to address the issue.  Organizations such as CBDC and DiverseCity on Boards have launched grassroots corporate initiatives, continue to raise awareness, track data regarding representation among boards of directors, and train candidates.  The results of these efforts will be closely monitored, as the issue of women’s representation on corporate boards remains significant in Canada’s national debate.

1       Bill 53, An Act Respecting the Governance of State-Owned Enterprises and Amending Various Legislative Provisions, 2006 S.Q., ch. VIII, sect. 43.

2       La parité entre les femmes et les hommes est atteinte, Gouvernement du Québec (Nov 30, 2011), https://www.premier-ministre.gouv.qc.ca/actualites/communiques/details-en.asp?idCommunique=164.

3       Id.

4       Get on Board: Ontario’s implementation plan to promote women in corporate leadership, Ontario.ca, https://www.ontario.ca/page/get-board-ontarios-implementation-plan-promote-women-corporate-leadership (last updated August 2, 2018).

5       Increasing Gender Diversity in Corporate Leadership (Dec. 2, 2014), https://news.ontario.ca/mof/en/2014/12/increasing-gender-diversity-in-corporate-leadership.html.

6       CSA Multilateral Staff Notice 58-309, Staff Review of women on boards and In Executive Officer Positions – Compliance with NI 58-101 Disclosure of Corporate Governance Practices (Oct. 5, 2017), https://www.osc.gov.on.ca/documents/en/Securities-Category5/sn_20171005_58-309_staff-review-women-on-boards.pdf.

7       Id.

8       CSA Multilateral Staff Notice 58-309, Staff Review of Women on boards and in Executive Officer Positions – Compliance with N1 58-101 Disclosure of Corporate Governance Practices (Oct. 5, 2017), http://www.osc.gov.on.ca/documents/en/Securities-Category5/sn_20171005_58-309_staff-review-women-on-boards.pdf

9        See 2016 Annual Report Card, Canadian Board Diversity Counsel (2016), https://boarddiversity.ca/wp-content/uploads/2018/04/CBDC-Annual-Report-Card-2016.pdf.

10     OSC urged to push companies to set targets for women on boards (Oct. 24, 2017), https://www.cbc.ca/news/business/women-boards-osc-1.4369447

11     Kellan E. McKeen, Bill C-25 - A Catalyst for Corporate Diversity in Canada?, Lawson Lundell LLP (May 14, 2018), https://www.lawsonlundell.com/the-business-law-blog/bill-c-25-a-catalyst-for-corporate-diversity-in-canada

12     Id.

13     J. Tuzyk and V. Locke, Bill 101 Aims to Bring Mandatory Compensation Voting, Majority Voting and Diversity Disclosure to Ontario Companies (Jan. 2018), https://www.lexology.com/library/detail.aspx?g=a85d275d-9e8d-4f77-8e1f-061dcda5320a.

14     Breaking the Glass Ceiling: Women in the Boardroom, A Study of Major Global Exchanges, Paul Hastings 15 (Fall 2014).