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CCCA_V6No1_Dept-RiskMgmt-FIN_CCCA_V5No3_Dept-Performance-V1.qxd 2/13/12 9:11 PM Page 19 Risk Management “ [I]t’s not enough that the stakeholders’ to investors a great deal of corporate information. Corporate ” interest be prejudiced. counsel should manage that process from the perspective of the objectively reasonable expectations it can create. The second prong of the oppression test also presents opportunities for corporate counsel to manage the risk of oppression claims. Remember, it's not enough that the stake- holder held reasonable expectations about the company's management which were not met. The manner in which they were not met must be oppressive, unfairly prejudicial or unfairly disregarding stakeholders’ interest. This is not the place to debate in detail what each of those labels might mean. (For one thing, it’s not entirely clear what the latter two do mean.) But what is clear is that it’s not enough that the stakeholders’ interest be prejudiced. There must, in all the circumstances of the situation, be some ele- ment of unfairness about that prejudice. That provides counsel with their opportunity.They should ensure that, wherever a corporate decision is taken which may prejudice a stakeholder, there is a solid and demonstrable business explanation of why that decision is in the overall best interests of the company. More than that, they should ensure that the decision is, in all the circumstances, demonstrably fair to all corporate stakeholders. Perhaps most importantly, they should ensure that rationale is clearly communicated to the appropriate stakeholders, and clearly documented. Unfortunately, even zealously taking all these opportunities to manage the risk of oppression claims cannot eliminate them. But, by understanding the two-pronged oppression test, corpo- rate counsel can take advantage of real, practical opportunities to manage the objectively reasonable expectations of corporate stakeholders and to ensure that any prejudice to them cannot be characterized as oppressive, unfairly prejudicial or unfairly disregarding their interests. If they make claims nonetheless, counsel will still have put their company in the best possible position to respond to them successfully. Stephen Antle is a partner in the Vancouver office of Borden Ladner Gervais LLP. His practice focuses on commercial dispute resolution, with particular interest in shareholder and securities disputes.