The Courts and Corporate Executive Compensation in Canada

Corporate executive compensation in Canada, as in many developed economies, has risen significantly since the 1980s relative to that of the average worker. This has posed an issue for corporate governance due to concerns that the trend may not be serving the corporation and its stakeholders well, and also an issue for society as a whole due to its impact on income inequality more generally. This has raised interest in the role played by institutions in shaping executive pay decisions and also in what role they might play in resolving these issues. This paper looks at the role played by one such institution, the courts, with two ends in mind. The first is to gain an empirical understanding of what the courts actually do with respect to executive pay disputes. It does so by examining a set of decisions by Canadian courts between 1876 and 2018 collected by the author in which the claim of a corporate executive to their pay was at issue in order to get a better picture of how the courts are accessed, who relies on them, what rules they use, how the courts respond and how trends in these have evolved over time. It finds that the litigation of executive pay disputes has varied widely over time with a variety of stakeholders using a variety of legal areas – corporate law, contract law and bankruptcy/arrangement law in particular – to dispute the entitlement of executives to their pay. In recent years however litigation has come to be dominated by oppression remedy applications, with plaintiffs being successful in challenging pay in a majority of decisions. This paints a significantly different picture of the role of the courts than that developed in the American literature which focuses almost exclusively on shareholder use of derivative actions to monitor pay decisions. The second is to examine how better use might be made of the courts in order to remedy the broader problems for corporate stakeholders and society as a whole that corporate executive pay practice presents. It suggests that an expanded role for the oppression remedy by corporate employees should be considered as a policy option which would better reflect a stakeholder model of governance and address broader inequality concerns at the same time.