Private Equity & Venture Capital

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PRIVATE EQUITY — BUYOUTS & VENTURE CAPITAL INVESTMENT

Canada has long been an attractive market for private equity and venture capital investors. A relatively stable economy and an abundance of capital have attracted international companies and financiers to explore investment opportunities and launch businesses in the Canadian market. Tapping into McMillan’s knowledge and experience allows them to maximize opportunities and mitigate risks.

McMillan’s private equity and venture capital industry lawyers have been active in the Canadian markets for many years and bring an unmatched commitment to helping clients execute transactions efficiently. Our private equity group has extensive experience working with private equity funds and financial institutions in acquisitions and dispositions, acting regularly for sponsors in fund formation and working closely with US and international law firms in cross-border private equity transactions.

PRIVATE EQUITY STRUCTURING AND FORMATION

McMillan’s private equity and venture capital industry team has extensive experience serving as counsel to sponsors and managers in the formation and operation of private equity funds. Our lawyers maintain in-depth, current market knowledge of the deal terms and trends that drive the industry. We collaborate with McMillan colleagues in specialty areas such as Capital Markets, Government and Public Policy, and Financial Services to bring a fully informed point of view to every client matter.

McMillan professionals help clients lead by advising on Funds Formation strategies and structures; negotiating and drafting fund documentation including partnership and subscription agreements; providing tax planning counsel; advising on disclosure requirements; advising on applicable securities laws and regulations; and advising on the operation of Funds at different stages in their life-cycle, including fund amendments and terminations.

CONSORTIA

McMillan has significant experience working with consortia, as well as individual participants. Our lawyers bring a combination of private equity experience and strong negotiation skills, which are vitally important to making club deals succeed. Our focus is on helping consortia members find common ground in order to maximizes the return on their investments.

McMillan professionals represent consortia on bidding, negotiating and closing deals; negotiate consortium agreements to define the legal relationship among members, as well as the fiduciary duties of each; structure consortia including tax planning and financing; advise consortium members on their respective governance rights related to the bid; and define exit strategies and criteria for consortium members, including agreement on competing bids once members have exited.

Primary Contacts

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Bruce Chapple

Partner, Private Equity & Venture Capital | Mergers & Acquisitions

Toronto

bruce.chapple@mcmillan.ca Phone

416.865.7024

Brett Stewart

Partner, Mergers & Acquisitions | Private Equity & Venture Capital | Chair of the Risk and Finance Committee

Toronto

brett.stewart@mcmillan.ca Phone

416.865.7115

Michael P. Whitcombe

Partner, Private Equity & Venture Capital | Mergers & Acquisitions

Toronto

michael.whitcombe@mcmillan.ca Phone

416.865.7126

Enda Wong

Partner, Mergers & Acquisitions | Private Equity & Venture Capital

Montréal

enda.wong@mcmillan.ca Phone

514.987.5034

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Private Equity 2021, Canada Chapter

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Insights (86 Posts)

Canada Issues Policy Statement on Investments Linked to Russia under the Investment Canada Act

Investments by Russian investors will be subject to enhanced scrutiny and prolonged timelines.

Mar 9, 2022

The Potential Impact of the Ukraine Conflict on Contracts Between Canadian and Russian Companies

Legal tools Canadian companies should seek advice on if they are no longer able perform contractual agreements because of the war in Ukraine

Mar 8, 2022

Spot the Difference: Mergers and Amalgamations in Corporate Transactions

Examining the difference between US "mergers" and Canadian "amalgamations" in corporate transactions, relevant for deal structuring and completing diligence.

Mar 2, 2022

Merger Notification and Investment Canada Act Thresholds Updates

Updates readers concerning the 2022 Canadian merger filing thresholds under the Competition Act and the Investment Canada Act.

Feb 7, 2022

Fiduciary Duties in Corporate Transactions: Expansion of Director’s Duties to Limited Partnerships & Liability of Knowing (Third Party) Assistants

The ONCA decision in Extreme Venture Partners Fund I LP v. Varma provides important guidance on acceptable standards of corporate conduct in Canada.

Feb 2, 2022

Practical Considerations of Simple Agreements for Future Equity or “SAFEs” in Canada

An overview of how Simple Agreements for Future Equity or “SAFEs” work including pros & cons for Canadian companies considering SAFEs for early stage financing.

Feb 1, 2022

PropTech: Property Technology, the New Frontier in Real Property, Part 3: Challenges

In this bulletin, we discuss the risks and challenges of using PropTech by businesses in the real estate space and for consumers of such products.

Jan 18, 2022

Alberta Securities Commission Provides Guidance On Shareholder Rights Plans, Break Fees and Use of Equity Swaps in Take-over Bid Context

An Alberta decision has held that the use of swaps in a hostile take-over bid can be abusive, and added guidance on shareholder rights plans and break fees.

Jan 12, 2022

Mandatory COVID-19 Vaccination Policy Upheld

An Ontario arbitrator upheld an employer's vaccine mandate for both a site where a 3rd party obligation existed and a related site with no such obligation.

Jan 12, 2022

Ontario Arbitrators Continue to Uphold Terminations of Employees who Breach COVID-19 Safety Protocols

A recent decision by an Ontario arbitrator further affirmed the notion that dishonesty during COVID screening protocols by an employee can lead to termination.

Jan 12, 2022

PropTech: Property Technology, the New Frontier in Real Property, Part 2: Benefits

In this bulletin, we discuss the benefits of using PropTech for businesses in the real estate space and for consumers of such products.

Jan 11, 2022

PropTech: Property Technology, the New Frontier in Real Property, Part 1: Introduction

In this 3-part series, we explain the concept of PropTech, highlight its benefits and outline associated risks.

Jan 11, 2022

2022 Starts on a High – Updates in the Psychedelics Industry and a Look Back at 2021

Recent amendments to the Special Access Program and a look back to 2021 on developments affecting the psychedelics industry.

Jan 11, 2022

City of Toronto Introduces Garden Suites

In this bulletin, we discuss the potential development of garden suites in the City of Toronto.

Jan 10, 2022

Wind-up and Hang-up: China Mobile’s Motion to stay an ICA Order Pending Judicial Review Dismissed

Analyzing updates from an Investment Canada Act national security review case to provide key insights to investors into Canada.

Jan 10, 2022

Will a Billion Dollar Termination Shift the M&A Landscape?

The authors discuss the Ontario Superior Court of Justice's decision in Cineplex v. Cineworld, a "busted deal" case about interim operating covenants.

Dec 17, 2021

New Requirements Proposed for Private Ontario Corporations to Maintain Register of Individuals With “Significant Control”

Bill 43 proposes to amend the OBCA to require corporations to prepare and maintain a register of individuals with "significant control" over such corporations.

Nov 18, 2021

Certification Denied: An Important Win for Competition Class Action Defendants

Certification denied in DRAM class action.

Nov 10, 2021

Privacy Commissioner Releases More Guidance for Video Teleconferencing Companies

Video teleconferencing companies face unique cybersecurity and data privacy risks. The OPC has new guidance on how these companies can best address them.

Nov 3, 2021

China Mobile Case Raises National Security Hang-up

China Mobile is challenging the Canadian government's order to divest its Canadian operations. The case raises important cross-border investment issues.

Oct 25, 2021

Major Canadian Banks Join Net-Zero Banking Alliance (NZBA) — Unpacking the Initiative and Net-Zero Commitments

On the eve of the 2021 United Nations Climate Change Conference, six of Canada’s largest banks announced they had signed on to the Net-Zero Banking Alliance.

Oct 21, 2021

Antitrust Reform: Canada Too!

James Musgrove and Sarah Stirling-Moffet talk Competition law reform in Canada after the Commissioner’s CBA speech - more money, more power!

Oct 21, 2021

Blocked Account Agreements in Canada – Back to Basics

A BAA is useful for lenders relying on cash collateral in secured lending transactions. We discuss the nature and function of BAAs in the common law provinces.

Aug 31, 2021

Watch as that Trust is Swept Away

Suppliers and subcontractors in the construction industry should be mindful of a recent unreported decision of the Ontario Superior Court of Justice.

Jul 30, 2021

SOFR Fundamentals: What We Know SO-FAR

SOFR is the preferred USD alternative RFR to LIBOR. We discuss what SOFR is, the types of SOFR, conventions for SOFR, and using SOFR in loan agreements.

Jul 21, 2021

Amendments to the OHSA Consolidate Reporting Requirements for Workplace Accidents Effective July 1, 2021

The Ontario government introduced amendments to Regulations under the Occupational Health and Safety Act to consolidate accident reporting requirements.

Jun 30, 2021

Ontario Repeals Canadian Residency Requirement for Directors

Amendments to the Ontario Business Corporations Act remove Canadian resident director requirement and ease rules for written shareholder resolutions.

Jun 15, 2021

Canadian Privacy Commissioners Issue Joint Guidance on Vaccine Passports

Commissioners warn that privacy considerations must be “front and centre” as organizations develop and implement vaccine passports in the coming months

May 25, 2021

Commercial Leases During the COVID-19 Lockdown: Where are we Headed?

Ontario has also passed legislation to protect commercial tenants.

May 17, 2021

Alberta Eliminates Director Residency Requirements

With the proclamation of the Red Tape Reduction Implementation Act (Alberta) into law on March 29, 2021, director residency requirements have been eliminated.

Mar 29, 2021

Ontario’s Capital Markets Modernization Taskforce Looks to Level the Playing Field

This bulletin focuses on Ontario’s Capital Markets Modernization Taskforce's recommendations aimed at ensuring a level playing field.

Mar 10, 2021

LIBOR Newsflash: FCA Announces Dates for Official Cessation and Loss of Representativeness of LIBOR

FCA announces dates for the official cessation and loss of representativeness of LIBOR. Implications for Lenders.

Mar 10, 2021

iAnthus Decision Changes the Landscape for Corporate Plans of Arrangement under the BCBCA by Permitting Third-Party Releases

The iAnthus decision affirmed by the Court of Appeal holds that a British Columbia company can use the BCBCA to restructure and obtain 3rd party releases.

Feb 23, 2021

LIBOR Newsflash: Announcement on Official Cessation of LIBOR is Expected Soon

IBA and FCA expected to make announcement about the official cessation of LIBOR. Timelines for ceasing new issuances of LIBOR loans.

Feb 18, 2021

2021 Canadian Merger Notification and Investment Canada Act Review Thresholds Decrease

The 2021 updates to the merger thresholds under Canada's Competition Act and Investment Canada Act have been announced.

Feb 12, 2021

Canada Freezes Shandong out of the Arctic

Canada blocked Shandong Gold's acquisition of TMAC Resources following a national security review under the Investment Canada Act.

Dec 22, 2020

B.C. Technology Sector Makes the Grade – But Not Yet Top of the Class

In November 2020, KPMG released the B.C Tech Report Card 2020. The Report Card outlined the current state of the British Columbia technology sector.

Dec 2, 2020

Do Not Go Directly to Jail – Just Yet Anyway: Competition Bureau Confirms its View that Buy-Side Agreements between Competitors are not Criminally Unlawful

On November 27, 2020, the Competition Bureau clarified its view that the criminal cartel provisions of the Competition Act do not apply to buy-side agreements.

Nov 30, 2020

Oil and Gas Sector Consolidation Invites Competition Bureau Reviews

With the recent surge in M&A activity in the oil and gas sector, the Competition Bureau may call on industry participants to investigate some of these deals.

Nov 17, 2020

Mandatory Indoor Face Coverings: What Ontario Employers Need to Know

Oct 6, 2020

Ontario Modernizing its Business Corporations Act

Oct 1, 2020

The Uncertain Consequences of Waiving Consequential Damages in M&A Agreements

This bulletin discusses issues with the use of the term "consequential damages" in exclusion clauses and limitation of liability clauses.

Aug 21, 2020

Ontario Amends Employment Standards Legislation in Response to COVID-19

Ontario passes new protected leave of absence for employees impacted by COVID-19, and suggests COVID-19
cases should be reported as occupational illnesses.

Aug 5, 2020

Heading for the Exit: Preparation for the Sale of your Business

Jul 27, 2020

Material Adverse Effect Clauses in a COVID-19 World

Review and analysis of recent developments where parties try to rely on MAE clauses as a mechanism to avoid closing a transaction.

Jun 23, 2020

Privacy Penalties – Canadian Competition Bureau Wades Into Privacy Enforcement

Organizations operating in Canada are advised to immediately review their privacy-related policies and marketing to avoid false or misleading representations

May 26, 2020

Federal Government Relief Programs for Small and Medium Enterprises

Apr 24, 2020

Alberta Government Passes Bill 12, Liabilities Management Statutes Amendment Act, 2020 – What You Need to Know

What you need to know about the Alberta Government's Bill 12 in relation to Liabilities Management Statutes Amendment Act, 2020.

Apr 21, 2020

Opportunities in Challenging Times: The Failing Firm Provision of Canada’s Competition Act

This bulletin analyzes the failing firm merger provision of Canada's Competition Act in anticipation of the negative economic impact of COVID-19.

Mar 30, 2020

Unbearable Lite-ness: Lenders’ Remedies in the Age of Missing Covenants

The author discusses the recent trend toward borrower-friendly loan documents and the remedies available to lenders in Canada.

Mar 23, 2020

Coronavirus: Harbinger of a New (Old) Approach to Restructuring in Canada?

Restructuring options and challenges in the time of COVID-19.

Mar 20, 2020

What’s Market in Canada, eh? A New Canadian Private Target M&A Deal Points Study

Key takeaways from the ABA's 2019 Canadian Private Target M&A Deal Points Study

Jan 25, 2020

“Can I Tell You Something in Confidence?” Legal Privilege in M&A Transactions

The authors discuss challenges to maintaining legal privilege in M&A transactions. Parties in Ontario can learn from the experience of other jurisdictions.

Jan 22, 2020

Challenges and Opportunities for Canadian Investors in Brazilian Insolvency Proceedings: Lessons from the IBA’s 2019 Global Restructuring Conference

The authors discuss unique aspects of Brazil's insolvency regime relevant for Canadian investors, including the role of equity, DIP loans, and jurisdiction.

Jan 21, 2020

Antitrust Merger Control in Canada: Tips for Private Equity Investors

This article provides thought-provoking and practical advice to Private Equity investors for minimizing antitrust risks to proposed transactions in Canada.

Nov 21, 2019

Amendments to the CCAA, BIA and CBCA Now in Force

Authors discuss changes in 2019 to Canadian corporate and restructuring statutes and their possible implications for insolvency practice in Canada

Nov 19, 2019

Employees’ Duty to Mitigate: Comparable Employment Does Not Mean Any Employment

The Ontario Court of Appeal has confirmed in a recent decision that an employee’s duty to mitigate following a without cause termination does not require the employee to accept a notably lesser position with the same employer.

Jul 24, 2019

Don’t Count Your Efficiencies Before They Hatch: Exploring The Factors That Impact A Railway’s Operating Ratio

Canadian Pacific Railway (“CP”) has significantly reduced its operating ratio in the past few years.

Jul 22, 2019

On the Record: Private Corporations in British Columbia Will Soon be Required to Collect and Disclose Shareholder Information

On April 2, 2019, the Government of British Columbia (the “Government”) introduced Bill 24, the Business Corporations Amendment Act, 2019 (the “Bill”).

May 16, 2019

Canadian Corporate & Restructuring Legislation: Changes Could be on the Way

Bill C-97 (the “Bill”) was introduced in Parliament to implement the federal budget tabled by the Liberal government on March 19, 2019.

May 10, 2019

Getting the Deal Through (Canada Chapter) – Private Equity 2019 – Fund Formation

A limited partnership is typically used for private equity funds in Canada.

May 2, 2019

Getting the Deal Through (Canada Chapter) – Private Equity 2019 – Transactions

A wide range of private equity transactions is common in Canada, including going-private transactions, private investments in public companies and private company buyouts.

May 2, 2019

Regulations Implementing theTransportation Modernization Act

On April 1, 2019, the Canadian Transportation Agency (“Agency”) announced the publication of proposed regulations (the “Proposed Regulations”) in the Canada Gazette to implement certain aspects of the Transportation Modernization Act (Bill C-49) (“TMA”).

Apr 11, 2019

Amendments to the Canada Shipping Act, 2001 and Marine Liability Act

On December 13, 2018, Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures, otherwise known as the Budget Implementation Act was given royal assent.

Feb 13, 2019

The Alberta Securities Commission Expands Prospectus Exemptions for Distributions Outside Alberta

The ASC has updated ASC Rule 72-501 Distributions to Purchasers Outside Alberta and its companion policy to facilitate cross-border investment.

Aug 22, 2018

Finance Proposes Amendments to Limit Holding Company – Input Tax Credit Claims (“ITC”) and Seeks Consultations on Further Possible Changes

Dept of Fin proposed amendments describing conditions for when taxable acquisitions imports of property or services by holding companies could make ITC claims

Aug 7, 2018

May 12, 2017 - 12:00 pm to 1:30 pm

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Private Equity & Venture Capital

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