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Login to watch this video if you have a subscription. Learn more about subscriptions.In this program, Susan Kushneryk and Eric Morgan discuss how lawyers who work with closely held companies can navigate governance challenges, including complex legal frameworks and ethical issues involved in the governance of companies. Topics include:
• Overview of governance legal principles
Directors’ duties (fiduciary and duty of care) Relevant statutes (OBCA and CBCA) and case law
Corporate separateness, and shareholders’ and other stakeholders’ rights
• Common sources of conflict in closely held companies and how to deal with them
Unclear division of roles and responsibilities between directors, owners, and managers Recognizing when there are conflicts of interest between different governance actors because of their different legal obligations (e.g. directors and shareholders) and what counsel needs to do in these circumstances, including referring the client(s) to separate counsel
Disputes over allocation of decision-making powers and economics benefits, and succession issues in family enterprises o Ethical issues for counsel working with closely held companies when conflicts aris
• How these conflicts can be avoided and resolved, both in and out of court
Governance best practices to avoid conflicts Managing the relationships between different governance actors that may become acrimonious and personal while maintaining civility in the boardroom and continuing to understand and discuss with the client what the client is looking for in terms of a successful outcome o Involvement of independent counsel (e.g. when separate representation is needed and for investigations)
Susan Kushneryk works with businesses to find practical solutions to their legal issues. She has prosecuted securities fraud and has acted as counsel in complex, high-value capital markets litigation, including class actions. Susan has conducted investigations of a range of alleged wrong-doing in public and private corporations. She has advised and litigated on behalf of boards, special committees and audit committees in a range of special situations. Susan has appeared before the Supreme Court of Canada, all levels of court in Ontario, the Federal Court of Canada, the Alberta Courts of Appeal and Queen’s Bench, the Ontario Securities Commission, the Investment Industry Regulatory Organization of Canada, the Ontario Energy Board and other administrative tribunals. Susan appeared before the Senate of Canada Standing Committee on Banking, Trade and Commerce in connection with amendments to the Canadian Business Corporations Act. Susan was a member of the litigation departments at Fraser Milner LLP and Torys LLP. She subsequently worked as enforcement counsel at the Ontario Securities Commission and at the Investment Industry Regulatory Organization of Canada. Susan served on the staff of two Attorneys General of Ontario. Most recently, Susan was a partner at the boutique law firm, Hansell LLP, focusing on matters of corporate governance. She speaks regularly on issues regarding capital markets disputes and matters of corporate governance. She has taught the administrative law course at the University of Toronto, Internationally Trained Lawyers Program. Susan was a member of the Ontario Securities Commission Securities Proceedings Advisory Committee. Susan obtained her law degree from the University of Toronto and a degree in philosophy from the University of Winnipeg. She has also completed the Canadian Securities Course. Susan was called to the bar in Ontario in February 2002.
Eric helps businesses resolve their complex legal disputes. He practices corporate commercial litigation and arbitration. He has acted in complex, multi-party disputes involving contractual issues, torts including professional negligence, class actions, corporate governance matters, shareholder disputes, and commercial and investor-state arbitrations.
Eric has appeared as counsel before the Supreme Court of Canada, courts at all levels in Ontario, courts in BC, Alberta and New Brunswick, and in arbitrations and mediations. He has also made submissions to the Ontario Legislature regarding arbitration legislation and advised clients on anti-corruption and risk management matters. Eric is the author of a book on professional negligence, a book chapter on dispute resolution in Canada and numerous articles. Eric sits on the advisory board of Young Canadian Arbitration Practitioners, where he co-chaired the Policy and Advocacy Committee. He was previously a North American representative for the ICC Young Arbitrators Forum.
Eric previously practiced in the litigation department of Osler, Hoskin & Harcourt LLP and was a partner at a boutique firm in Toronto. Before joining Osler, Eric worked at Freshfields Bruckhaus Deringer LLP in London, during which time he was seconded to the Bank of England and the litigation and special investigations team of Barclays Bank plc. He also taught criminal law at Oxford University.
Eric obtained his law degree from Oxford University and a degree in economics from the University of Toronto. He was admitted to the Ontario bar in 2011.
Eric is available to act as an arbitrator in disputes. He was selected as a member of the inaugural NextGen Roster of Arbitrators at Arbitration Place and has been appointed to the Vancouver International Arbitration Centre’s panels of arbitrators.
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