Securities Regulators Set "High Bar" For Establishing Joint Actors

A recent British Columbia Securities Commission (BCSC) decision in NorthWest Copper Corp.¹ appears to impose a relatively high bar to proving that shareholders are acting "jointly and in concert" for the purpose of early warning disclosure requirements under securities law. The decision, which followed an earlier 2023 decision concerning joint actorship by the Alberta Securities Commission (ASC) in Re DIRTT Environmental Solutions Ltd.,² has important implications for market participants considering or engaging in proxy contests and M&A transactions.

The Complaint

NorthWest Copper Corp. (NorthWest or the Company) received advance notice from 0.4% shareholder Grant Sawiak (Sawiak) of his intention to nominate a dissident slate of directors at its upcoming annual and general meeting of shareholders (AGM). The notice expressly stated that Sawiak was "not acting jointly or in concert with any other person or company...". In response, on the basis of concerns about