New CBCA Diversity Reporting Requirements
Preparation for proxy season likely began already or you are in the process of beginning at your CBCA publicly traded company. If you have any questions or concerns about the new diversity reporting requirements or developing policy with regards to same, please contact me directly at email@example.com None of the following contains legal advice.
New Changes Effective January 1, 2020
Effective January 1, 2020, publicly traded corporations established under the Canada Business Corporations Act (CBCA) have new diversity reporting requirements, among other things. This post highlights some of those changes and considerations.
CBCA publicly traded companies are subject to reporting requirements as per provincial securities law and with the new diversity reporting requirements must report on the following:
Whether the company has adopted a written policy relating to the identification and nomination of members of designated groups for directors and, if it has not adopted a written policy, the reasons why it has not adopted the policy.
Designated groups means “women, Aboriginal peoples, persons with disabilities and members of visible minorities”.
Whether the company's board of directors or its nominating committee considers the level of the representation of each designated group and in senior management, and whether the company has adopted targets for each designated group at the board and senior management level.
Senior management includes the chair and vice-chair of the board, president, CEO, CFO and VP in charge of a principal business unit, division or function including sales, finance or production, and an individual who performs a policy-making function in respect of the company.
Percentage of members of each designated group who hold positions on the board of directors and who are members of senior management of the company, including all of its major subsidiaries.
Major subsidiaries mean those with total assets/revenues accounting for 30% or more of the parent's consolidated revenues/assets.
The company must also report on whether it considers the level of representation of designated groups when: identifying and nominating candidates for election to the board; and appointing members of senior management. Namely, the company must show how that diversity targets are considered or reasons why they are not considered.
The federal government introduced these changes via Bill C-25 in 2018 and later published in the Canada Gazette on July 10, 2019.
CBCA publicly traded companies should consider how they define Indigenous peoples as the Employment Equity Act has a limited statutory definition. Namely, Aboriginal people includes "Indians" but Indians, as a legal term, is presumed to only include those as defined by the Indian Act.
An individual who performs a policy-making function would likely not include an individual who creates general policy; rather, it may include someone, other than those identified, who influences final decision making in a policy-making function.
The new diversity reporting requirements are broader than requirements under National Instrument 58-101.
CBCA publicly traded companies should aim to adopt inclusive policies and cultures at board and senior management level to assist with reducing or eliminating the risk in having individuals to "out" themselves as someone with a disability in order to comply with the new diversity reporting requirements. There still exists much stigma today for disclosing disabilities, and many go through life and many years without disclosing same due to stigma and shame.