The Canadian Securities Administrators (CSA) recently published 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 (Notice). The Notice continues the review, for a third year, of “comply or explain” disclosure provided by non-venture public companies concerning the representation of women on boards and in executive positions, as set out in Form 58-101F1 – Corporate Governance Disclosure (Form).
The Notice follows two similar sets of review, the most recent of which found only small improvements from the findings of the first-year review. See our October 2016 Blakes Bulletin: CSA Identifies Only a Small Step for Women; No Giant Leap for Humankind. Institutional Shareholder Services (ISS) also announced a proposed new gender diversity policy to promote better disclosure and higher levels of gender diversity on boards of directors.
THIRD-YEAR REVIEW RESULTS
The Notice continues the review of the compliance with gender diversity disclosure requirements for 660 issuers with financial year-ends between December 31, 2016 and March 31, 2017 (thereby omitting large Canadian financial institutions with October 31 year-ends). Progress has been made for the representation of women on boards and in executive positions; however, the overall pace of change has been slow. The Notice found mostly positive improvements from the findings of the second-year review, as follows:
- Overall percentage of board seats occupied by women increased from 12 per cent to 14 per cent as compared to the prior year (11 per cent two years ago), increasing in all size categories of issuers, with the 46 largest issuers leading the way at 24 per cent (up from 23 per cent in the prior year and 21 per cent two years ago)
- 15 per cent of issuers added one or more women to their boards, compared to 10 per cent in the prior year (15 per cent two years ago)
- 505 vacant board seats were filled during the year, with 26 per cent of the new directors being women
- 39 per cent of issuers did not have a woman on their boards, down from 45 per cent in the prior year (51 per cent two years ago)
- 62 per cent of issuers disclosed having at least one woman in an executive officer position, up from 59 per cent in the prior year (60 per cent two years ago)
- 35 per cent of issuers disclosed they had adopted a policy relating to the identification and nomination of women directors, a significant increase of 14 per cent compared to the prior year (15 per cent two years ago), and issuers with such a policy had a greater overall percentage of board seats occupied by women (19 per cent) as compared to issuers without such policies (10 per cent)
- 11 per cent of the issuers had targets for the representation of women on their boards, an increase from nine per cent in the prior year (seven per cent two years ago)
- Issuers with board targets had, on average, female board representation of 26 per cent, compared to 12 per cent for issuers that did not have a target
- 65 per cent of issuers disclosed that they considered the representation of women on their boards as part of their director identification and nominating process, a decrease from 66 per cent in the prior year (60 per cent two years ago)
- 58 per cent of issuers disclosed that they considered the representation of women when making executive officer appointments, the same figure as the prior year (53 per cent two years ago).
On October 24, 2017, the Ontario Securities Commission held a roundtable to discuss the Notice findings. Participants included representatives of issuers, investors, regulators, proxy advisors and other industry participants. The discussion covered the results of the review, as well as the benefits, challenges and experiences associated with the existing disclosure requirements relating to women on boards and in executive officer positions. Numerous views, ideas and concepts were expressed during the roundtable, with some receiving consensus support (although without any binding commitment for implementation), including the following:
- Requiring issuers set their own non-zero targets for board gender diversity and to report against such targets
- Professionalizing the board recruitment process and requiring more robust disclosure of nomination practices
- Bulking up on the regulatory guidance provided in National Policy 58-201 Corporate Governance Guidelines to include the gender diversity comply or explain concepts in the Form (for example, stating that issuers should have gender diversity policies and should consider gender diversity when making board nominations).
POTENTIAL PROXY ADVISOR DEVELOPMENTS
On October 26, 2017, ISS announced a proposed new Canadian voting policy pursuant to which if an applicable issuer has not adopted a formal written gender diversity policy and no female directors serve on the issuer’s board, then ISS will generally recommend that shareholders withhold votes from the chair of the issuer’s nominating committee (or committee designated with the responsibility for director nominations), or the chair of the board if no nominating committee or chair of such committee has been identified.
Progress has been slow in the three years since the Form was amended to require gender diversity disclosures, although some momentum may be building as investors continue to pressure issuers to add more women and regulators to consider further measures to increase the representation of women.