Rogers Communications Inc. (RCI) announced late Sunday it will not seek an appeal of last week’s B.C. Supreme Court ruling effectively giving Edward Rogers control of the company’s board of directors.
The company declaration, limited to a single sentence, follows Friday’s ruling that saw Justice Shelley Fitzpatrick grant Edward Rogers’ petition to replace five of RCI’s independent directors with nominees of the Rogers Control Trust (RCT) – which controls 97.5% of Class A voting shares or approximately 29% of RCI – through a written resolution, without convening a meeting of shareholders.
Directly following Fitzpatrick’s ruling Friday, Stephen Schachter – counsel for Edward’s mother Loretta, and two sister Martha Rogers and Melinda Rogers-Hixon – had requested a stay of the order due to concerns RCI management would be instructed not to proceed with an appeal. The judge denied Schachter’s request based on assurances no immediate management changes would be enacted by the new board which tilts the balance of power in Edward Rogers’ favour.
In her decision, Fitzpatrick likens the family “squabbles” to a Shakespearean drama.
“They have no doubt added a voyeuristic element on the part of many into the lives of a very wealthy Canadian family and this aspect of the dispute has driven some media coverage. However, in my view, the family issues are of little assistance in determining the narrow legal issue raised and certainly do not need to be addressed or resolved in this Court. At best, they are a distraction,” wrote Fitzpatrick.
The decision, which dives into who the validly elected members of the RCI board are, scrutinizes the wishes of Loretta and the late Ted Rogers in electing and replacing directors, namely that it be done through a shareholder meeting with the full process that procedure entails. Resulting in the disclosure of Ted’s Control Trust Will and a “personal and confidential” Memorandum of Wishes (MOW), Fitzpatrick’s interpretation is that Ted envisioned that the Control Trust Chair would consult with the family and the RCT Advisory Committee.
“Edward has done that. Somewhat presciently, Ted refers to a potential situation where the ‘majority’ of the RCI Board is in conflict with the interests of the Rogers family, as represented by the Control Trust Chair,” wrote Fitzpatrick. “In the event of a ‘bed-rock’ and serious issue, Ted stated that it was his expectation that the Control Trust Chair would run through the ‘public gauntlet’ of calling a shareholder meeting to replace the RCI directors who were opposed.”
While Fitzpatrick says Ted Rogers’ thoughts present a “colourful backdrop” to the dispute, she ultimately agreed with Edward Rogers’ assertion “that if a sufficient majority of shareholders support a course of action, they should be able to act quickly and decisively without the expense and delay of a meeting. Neither the Board nor management should be able to interfere with the will of an overwhelming majority of a company’s shareholders.”
“I appreciate RCI’s concerns about this process being subject to the ‘whim’ of the RCT,” concluded Fitzpatrick. “However, the substantial majority of voting control held by the RCT is not a secret and I find it difficult to understand that any stakeholder could think otherwise and not appreciate that the RCT could, if it chose, exercise that voting control, if it saw fit.”
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