Mergers & Acquisitions

Key Contacts

Bell Alan High Resolution Image Alan Bell
Partner
T: 416.777.5770
Email
Kerbel Jeffrey High Resolution Image Jeffrey Kerbel
Partner
T: 416.777.5772
Email
Kraus Brent Brent W. Kraus
Partner, Co-Head of Capital Markets and M&A
T: 403.298.3071
Email
Spencer, David David A. Spencer
Partner
T: 403.298.2054
Email
Misetich Dann Linda High Resolution Image Linda Misetich Dann
Partner, Co-Head of Capital Markets and M&A
T: 416.777.4636
Email

Publications

  • Rio Tinto Alcan v. The Queen: Welcome Expansion of the Canadian Tax Deductibility of M&A Transaction Expenses
    February 2017

    In a welcome decision for Canadian acquirors and targets, the Tax Court of Canada recognized, in Rio Tinto Alcan Inc. v The Queen, that certain oversight expenses—including certain investment banking and other professional advisory fees—should be deductible in the context of M&A transactions. This is particularly so where such services are provided to enable the board of directors of the acquiror or target to determine whether to proceed with the transaction. The Court also established a principled basis for the deductibility of transaction expenses in a far broader set of circumstances than those previously accepted by the Canada Revenue Agency (the CRA), in particular, in situations in which a board is discharging its oversight function prior to a decision to implement a particular transaction(s). The decision is under appeal; if affirmed, it will represent a significant expansion of the deductibility of transaction fees. The onus will remain on the taxpayer to prove the expenses are deductible based on the new criteria; engagement letters for advisors and their invoices, clearly demarcating oversight activities in respect of proposed transaction(s) from the implementation phases, should be prepared accordingly. C. Kennedy and A. Nijhawan, "Rio Tinto Alcan v. The Queen: Welcome Expansion of the Canadian Tax Deductibility of M&A Transaction Expenses" Vol 36 No. 2 (February 2017) ABA Tax Times (American Bar Association, 2017).

  • Change in Shareholder Approval Requirements for Certain TSX-V-Listed Issuers Undertaking a Change of Business or Reverse Takeover
    January 13, 2017

    On December 15, 2016, the TSX Venture Exchange (TSX-V) published amendments to Policy 5.2 – Changes of Business and Reverse Takeovers of the TSX Venture Exchange Corporate Finance Manual (Policy 5.2). The amendments to Policy 5.2 include, among other things, specific guidance on where the TSX-V may waive the requirement for shareholder approval of a change of business (COB) or reverse takeover (RTO).
  • Marquee Energy Appeal Reaffirms Plans of Arrangement Law in Canada
    December 08, 2016

    In a decision released on November 15, 2016, the Alberta Court of Appeal allowed the appeal of Marquee Energy Ltd. (Marquee) from a prior decision of the Court of Queen's Bench of Alberta which had required, as a condition to any final approval of a plan of arrangement involving Marquee, Alberta Oilsands Inc. (AOS) and the shareholders of Marquee, that Marquee's plan of arrangement provide for a vote of the shareholders of AOS.  Notably, in the context of the proposed transaction, the shares of AOS were not being arranged and therefore the decision of the lower Court represented a marked departure from prior jurisprudence pertaining to plans of arrangement in Canada.
  • The Upstream Oilfield Services Industry in Western Canada - A Backgrounder
    November 24, 2016

    This backgrounder has been prepared as a resource for investors who are looking for opportunities to invest in a sector that is an indispensable part of the Canadian energy sector and the Western Canadian economy.

  • The Business of Innovation - Intellectual Property Transactions and Strategies in the New Economy
    May 2016

    Martin Kratz, QC is co-editor of and a contributor of three chapters in Carswell's forthcoming new text, "The Business of Innovation - Intellectual Property Transactions and Strategies in the New Economy," scheduled to be available at the end of May 2016.  The text guides innovators through various issues in the commercialization of innovation. Martin Sorensen and Michael Whitt also contribute to this text.
  • Considering an Asset Sale Transaction? Be Aware of Shareholder Approval Requirements
    March 29, 2016

    In the current economic climate, many companies are seeking alternative means of accessing capital for their businesses, including selling assets when other means of financing may not be available. When considering an asset sale transaction, both buyers and sellers should ensure that the seller's shareholder approval requirements under corporate legislation are not inadvertently triggered.
  • Going Private Transactions in Canada's Energy Sector – On the Rise?
    March 23, 2016

    Are going private transactions on the rise? Conditions are ripe for an increased number of private equity-led buyouts of public companies.
  • Canada Implements New Take-Over Bid Rules
    February 29, 2016

    Following a lengthy process involving each of the securities commissions in Canada, industry participants and the legal community, on February 25, 2016, the Canadian Securities Administrators (CSA) adopted amendments to Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids and changes to National Policy 62-203 Take-Over Bids and Issuer Bids (the New Rules). The New Rules represent a significant departure from the historic take-over bid regime in Canada. Under the New Rules, shareholders will have a greater ability to make informed tender decisions and target boards will be provided with more time to identify and pursue alternative transactions and/or other defensive measures. The New Rules will come into effect on May 9, 2016, provided that implementation in Ontario may be delayed beyond that date until the relevant legislation is proclaimed into force.
  • Survival Periods Versus Limitation Periods: Which Prevails?
    February 16, 2016

    The recent Court of Queen's Bench of Alberta decision in NOV Enerflow ULC v Enerflow Industries Inc. (the NOV Decision) considered survival periods of representations and warranties in commercial contracts and the interplay of such survival periods with the Alberta Limitations Act. The Court reviewed and commented on recent Alberta decisions in the area and unequivocally advanced the principle that sophisticated contracting parties are able to agree upon expiration dates for representations and warranties in a commercial contract and that enforcement of such dates will not be in contravention of the Limitations Act.
  • The BCSC Decision in Re Red Eagle - Private Placement Survives Regulatory Review in the Context of a Hostile Bid
    January 20, 2016

    Georges Dubé and Jessica Starck authored "The BCSC Decision in Re Red Eagle - Private Placement Survives Regulatory Review in the Context of a Hostile Bid" in Practical Law Canada, Transactional.
  • Lessons from the Suncor-Canadian Oil Sands Shareholder Rights Plan Decision
    December 17, 2015

    On December 14, 2015, the Alberta Securities Commission (ASC) released its much anticipated decision (the Decision, Re Suncor Energy Inc., 2015 ABASC 984) concerning the 120-day shareholder rights plan adopted by Canadian Oil Sands Limited (COSL) in response to the unsolicited take-over bid for COSL commenced by Suncor Energy Inc. (Suncor) on October 5, 2015.
  • Doing Business in Canada
    December 14, 2015

    Intended for a non-Canadian audience, the Doing Business in Canada guide comprises a series of practice-specific treatments that provide general information on the business environment in Canada. Readers interested in a more comprehensive, company and industry-specific interpretation are encouraged to get in touch with the key contacts for the related practice.
  • Legal Strategies in Mergers and Acquisitions
    May 19, 2015

    Prepared for the Legal Education Society of Alberta's Legal Strategies in Mergers and Acquisitions Course, "Key Purchase/Sale Agreement Provisions" discussing specific contractual provisions and issues which are commonly negotiated, frequently misunderstood or which are becoming more prevalent in commercial practice as it related to purchase and sale agreements in Alberta.
  • Buying and Selling a Business: Due Diligence
    April 09, 2015

    Prepared for the Legal Education Society of Alberta's Buying and Selling a Business Course, by Peter Inglis, Mark Kortbeek and Nicholas Jeanes, "Due Diligence" discusses common legal due diligence performed on target private businesses, the arising issues, and what can be negotiated on that basis. It also contrasts differences between share and asset deals, assesses best closing practices and what costs transactions can bear. It further considers dynamics between due diligence and purchase price negotiation and how to negotiate non-disclosure agreements.
  • Canada: Mergers and Acquisitions 2015
    March 2015

    Published in The International Comparative Legal Guide to Mergers and Acquisitions 2015, Jeffrey Kerbel and David Spencer author the Canadian chapter of the 9th edition providing a broad overview of common issues in mergers and acquisitions. Click on the PDF above for the full article.
  • Getting a Deal to Closing with Transaction Insurance
    March 02, 2015

    The M&A field has begun to find a lot of upside in use of representation and warranty insurance (RWI) – sometimes referred to as transaction insurance – to get a deal to closing. In the past five years the RWI market has matured greatly and has served as a valuable tool in a number of transaction situations. Whether aiming to improve indemnity protection or survival of representations and warranties, improving a bid in a competitive auction process, or being forced into a RWI policy when no vendor indemnity is possible, there are various ways RWI can give comfort to both vendors and purchasers.
  • Dissenting Shareholders in Amalgamations
    January 2015

    Jared A. Mackey & Greg Johnson, “Dissenting Shareholders in Amalgamations”, (January 2015) XIII(4) Corporate Structures & Groups (Federated Press) at 744.

  • New Good-Faith Duty of Honesty in Contractual Performance Recognized by Supreme Court of Canada
    November 25, 2014

    In a precedent setting case, the Supreme Court of Canada has: (1) recognized good faith as a "general organizing principle" of Canadian contract law; and (2) recognized a new duty of "honest performance", which requires parties to be honest with each other in relation to the performance of their contractual obligations. The decision in Bhasin v Hrynew, 2014 SCC 71, applies generally to all Canadian contracts, other than those subject to Quebec law (which also recognizes certain obligations of good faith). The notion of a general and independent doctrine of good faith performance of contracts has historically been resisted in Anglo-Canadian common law. The decision in Bhasin v Hrynew deliberately stops short of recognizing a general "duty of good faith", but takes an incremental step in that direction, with the recognition of the narrower "duty of honesty".
  • New Canadian Resource Revenue Transparency Rules Released
    October 28, 2014

    On October 23, 2014, the Government of Canada introduced its Extractive Sector Transparency Measures Act (the Bill), which will impose mandatory reporting requirements for each entity engaged in the "commercial development of oil, gas or minerals" (exploration, extraction, or having permits to do so) in Canada or elsewhere or that controls an entity that is so engaged. Introduced as part of the omnibus Bill C-43, the Bill represents a significant step in the Government's commitment to establish mandatory reporting standards for the extractive sector by June 2015, "with a view to enhancing transparency on the payments they make to governments". The purpose of the Bill is to implement Canada's international commitments to participate and engage in the fight against corruption in the extractive sector.
  • The CSA Proposes a New Harmonized Take-Over Bid Approach
    September 15, 2014

    On September 11, 2014, the Canadian Securities Administrators (CSA) announced the publication of CSA Staff Notice 62-306, which contemplates a new harmonized regulatory approach to the Canadian take-over bid regime.
  • A Second Opinion on Fairness Opinions in Commercial Arrangements
    June 10, 2014

    Decisions on corporate plans of arrangement tend to be of two varieties. Most are fairly straightforward decisions, where the applicant proves that it complied with the interim order already issued by the court, shows that a meeting of shareholders was held and shareholders approved the plan, and the plan is fair and reasonable. Endorsements tend to be short and hearings are often done in chambers.
  • M&A Technology Due Diligence Update 2014
    April 04, 2014

    The perfect storm created by the intersection of (on the one hand) the dramatic increase in the business use of cloud computing, open source software, prolific social media, the emergence of Big Data, wireless mobile devices (including for Board meetings), and the alarming increase in cyber security attacks (of many kinds), with (on the other hand) rapidly increasing IT corporate governance duties, expanded regulatory scrutiny concerning data security, privacy, anti-spam and corporate governance (OSC, SEC, OSFI, critical infrastructure regulators, and many others), increased audit awareness and sensitivity for IT risk, emerging shareholder activism, consumer rights (from e-commerce rights to privacy), and the growth of class action litigation…. all require a more specialized and comprehensive approach to technology risk due diligence for M&A transactions in 2014.
  • Crowdfunding and Other New Prospectus Exemptions Proposed by the Ontario Securities Commission
    March 27, 2014

    On March 20, 2014, the Ontario Securities Commission (OSC) published for public comment four new prospectus exemptions intended to facilitate capital raising while maintaining investor protection.
  • Share Purchase Transactions, Solicitor-Client Privilege and Multiple Representations: A Cautionary Tale for Corporate Counsel
    October 31, 2013

    An interesting set of questions arises from share purchase transactions regarding the existence of, and parties to, the solicitor-client privilege over the correspondence between the parent, subsidiary and corporate counsel. Solicitor-client communications arise when the parent and corporate counsel obtain information from the target in the context of making the necessary disclosures and representations in the transaction to the purchaser.
  • Unsolicited Expressions of Interest may be Material Information
    August 30, 2013

    The Alberta Securities Commission (ASC) has entered into a settlement agreement with Anthony Lambert, the former CEO of Daylight Energy Ltd., following allegations by the ASC that Mr. Lambert violated provisions of the Securities Act (Alberta) relating to insider trading and tipping.
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