Former head of corporate law at Stikeman Elliott LLP retires from the firm, but stays connected
Ed Waitzer likes to joke that he’s finally getting a taste of his own medicine – in that a mandatory retirement-at-67 policy implemented back in the days when he was Chair of Stikeman Elliott LLP has now come to include him.
But Waitzer, who was head of the Ontario Securities Commission from 1993-1996 and has had a storied career as an esteemed corporate lawyer, says we haven’t seen the last of him. He may be planning to live out in the countryside full-time – hence the muffled sounds of contractors working on an addition during a call – and he will no longer have the Stikeman name attached to his email address, but he’s sticking around for a bit longer.
As the month of his 67th birthday approached in January, Waitzer, head of the corporate governance group at Stikeman, was asked by the firm to stay, something he is happy to do. He’s severing economic ties with the partnership, but he’s keeping his office and his trusty office assistant Dawna McIntosh.
“I’ll still continue to work with clients,” he says, but the new arrangements will free him up to pursue some new activities. “I’d like to do some different things. So, this is right way to force myself to think about how I spend the next chunk of my life.”
Not that he’s any slouch when it comes to working. He was Chair of the Strategy Working Party, which restructured the International Accounting Standards Board. He was a member of the Canadian Institute of Chartered Accountants’ Task Force on Standard-Setting. He has been Chair of the Liquor Control Board of Ontario and Vice-Chair of Sociedad Quimica y Minera de Chile S.A. (SQM), and President of the Canada-Chile Business Council.
Waitzer is also a professor emeritus and held the Jarislowsky Dimma Mooney Chair in Corporate Governance at Osgoode Hall Law School and Schulich School of Business at York University and was Director of the Hennick Centre for Business and Law. Previously, he was the Falconbridge Professor of Commercial Law at Osgoode. (Full disclosure, this author has taken one of his courses on an audited basis, an invitation he has regularly offered to members of the media.)
So, with all that on his CV, what is there left for Waitzer to do?
“Well, what I’ve been doing for the past 20 years has been a lot of ‘transactional’ work,” he says – everything from corporate governance work to managing intergenerational work, “a subset of governance, I guess”.
However, Waitzer says he’d like to spend more thinking about and writing about public policy issues – whether that is on his own or with some of the think tanks he’s been associated with.
It is an interesting time for the type of law that he is interested in, Waitzer says, especially as prospects for the world are uncertain and growing systemic risks threaten that world. He also likes to point out that as “myopic” politicians focus on the short term, the courts have been taking a more activist role, typically focussing on “reasonable expectations.”
“It’s a fascinating concept because reasonable expectations aren’t static – they change. But if you had to boil it down, it comes down to thinking about treatment of others and the integrity of our social institutions, which means the courts have been doing increasingly radical things.”
One example, adds Waitzer, is that the courts are “shifting to viewing non-financial information as least being as material as financial information – that’s big.” As well, there is an increasing focus on transparency, fairness and institutional integrity.
When it comes to corporate governance issues, Waitzer wants to make it clear that there has been a “huge amount of progress” in the area, and it is an issue that is now taken seriously.
But having said that, he adds, “one of the incidental consequences of all this is that we’ve created this huge corporate governance industry that tends to feed on itself.
“There’s an army of experts – lawyers, consults, proxy advisers, you name it – who are generating new regulatory proposals to keep the governance industry busy. Many of these proposals are more symbolic than substantive, and the results may be conservative or even regressive.”
He says that the result is a compliance mentality of ticking boxes, following rules, and “doing things right” as opposed to doing the right thing.
A good example is the “say on pay” rules. The focus has been on transparency and disclosure, which is good, Waitzer says, but the unintended consequence is that executives' compensation has increased. “We’re focussing on the right issue, but the reforms are having the opposite effect of what was intended.”
As for the concept of stewardship, the problem, Waitzer says, is that executive compensation incentives tend to encourage short term thinking, which means not playing to the long term. “So, you’ve got to somehow overcome the incentives to sacrifice long-term sustainability in order to generate short term growth.”
Waitzer says the threat of systemic risks wreaking havoc on our world is genuine. We already see this with climate change, the social challenges of racism and diversity, and even the consequences of the COVID-19 pandemic. Add to that the growing problem of income inequality, Waitzer says, and it is becoming clear that those who can least bear the impact of all this will take a disproportionate hit.
The world is getting more divisive and unequal, he says, and “we’re only as strong as the weakest link.”
The role of financial markets also needs to be re-examined, Waitzer says. Back in the 1970s, if you asked about the purpose of stock exchanges, Waitzer says the answer you would probably get would revolve around the efficient mobilization and allocation of capital in the economy.
Today it would be quite different. “It’s become a game, and the game is to make as much money as you can as quickly as you can. And that tends to be a zero-sum game. My gain is your loss.”
He notes that many think last week’s news of a bunch of “little guy” investors trying to send a “message” to Wall Street hedge funds by pushing up the stock price of Gamestop shares in a short squeeze is just one small example of inequality and “sticking it to the man.”
But Waitzer thinks that interpretation perhaps “gives more credit than due,” and is likely as much a part of the culture of celebrating making money through big bets as what is practiced on Wall Street. “It isn’t clear to me how much of this is a political statement.”
As Waitzer heads into the next phase of his life, he acknowledges he’s “been blessed” in his career by h having “the chance to work on interesting policy issues as well as transaction that helped build a law firm.”
“If I feel I can continue to make a difference in contributing in some small way, I’ll be a happy guy.’