Canadian Securities Law : Canadian Securities Lawyer & Attorney : Stikeman Elliott Law Firm : Montreal, Ottawa, Calgary, Vancouver, Montreal, Toronto

The Investment Industry Regulatory Organization of Canada (IIROC) today published a guidance note respecting the procedures for executing designated trades under the Universal Market Integrity Rules (UMIR) by a Participant as principal that involve a distribution to clients of a significant block of stock of a listed security. The notice provides guidance in the form of questions and answers respecting the procedures for executing such trades.

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The Investment Industry Regulatory Organization of Canada today released its first Annual Consolidated Compliance Report for the 2008/2009 examination cycle. The report present's compliance deficiencies found during IIROC's examination of almost 200 member firms. The examinations were completed by IIROC's compliance examination groups and the findings of each group are discussed in the report. The general deficiencies encountered by all compliance examination programs are also discussed, being: inadequate supervision of some business activities, inadequate internal control procedures and testing documentation and inaccurate or incomplete books and records. The report also identifies deficiencies that will be the focus of the current year's examination program.

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The U.S. House Financial Services Committee announced yesterday that it has approved legislation dealing with say-on-pay and compensation committee independence. While the legislation is similar to the proposals released earlier this month by the Department of the Treasury, the House legislation also includes a provision that would allow regulators to prescribe regulations that prohibit compensation structures that regulators determine encourage "inappropriate risks" by financial institutions that "could threaten the safety and soundness of covered financial institutions" or have "serious adverse effects on economic conditions or financial stability." It is expected that the House of Representatives will consider the bill on Friday.

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The Securities and Exchange Commission's Investor Advisory Committee, having held its first meeting on Monday, announced today that it has agreed on a broad agenda. Identified topics for discussion moving forward include: the fiduciary duties of financial intermediaries, disclosures to investors, whether majority voting for directors should be mandatory for all U.S. companies and whether investors have the information necessary to make informed proxy voting decisions.

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The U.S. Securities and Exchange Commission yesterday announced that it is taking further steps in an attempt to curtail abusive "naked" short selling in equity securities and improve transparency respecting short sales generally. To that end, the SEC is making permanent, with some limited modifications, its interim final rule of October 2008 requiring broker-dealers to promptly purchase or borrow securities to deliver on a short sale. Further, the SEC stated that it is working with self-regulatory organizations to make short sale volume and transaction data available on SRO websites. The SEC's consideration of proposals on short sale price tests and circuit breaker restrictions also continues.

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The Investment Industry Regulatory Organization of Canada (IIROC) and the U.S. Financial Industry Regulatory Authority (FINRA) today announced a cooperation agreement whose objective is to "enhance the effectiveness of both organizations through the exchange of information and other cross-border assistance." The news release describing the arrangement further stated that "[i]n addition to information sharing on compliance and enforcement related matters, IIROC and FINRA plan to work together on issues related to firm oversight and examinations."

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Staff of the Canadian Securities Administrators (CSA Staff) released a staff notice today summarizing the results of their continuous disclosure review program for the 2009 fiscal year. During fiscal 2009, which ended March 31, CSA Staff completed 1,094 continuous disclosure reviews of reporting issuers other than investment funds, a 28% increase from the last fiscal year. CSA Staff noted that the deficiencies in continuous disclosure were generally in either the Management's Discussion and Analysis (MD&A) or financial statements and provided highlights of some of the more common deficiencies. Review outcomes were categorized and 48% of outcomes fell into the "prospective changes" category, which required the issuer to make changes in its next filing as a result of identified deficiencies. CSA Staff also identified areas of focus for the next fiscal year, including notably, disclosures of IFRS changeover plans in the MD&A.

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Secretary Geithner Photo Courtesy of www.treasury.gov

The U.S. Department of the Treasury announced on Monday that it was delivering to Congress proposed legislation intended to address the situation of recent years where "investors were overly reliant on credit rating agencies that often failed to accurately describe the risk of rated products." Under the proposed legislation and rules to be adopted by the Securities and Exchange Commission, credit rating agencies would, among other things, have to register with the SEC and be subject to a higher degree of oversight, they would be prohibited from providing consulting services to companies that contract for ratings, agencies would be required to manage and disclose conflicts of interest and preliminary ratings would have to be publicly disclosed to reduce "ratings shopping". According to the Treasury Department's fact sheet, the proposals will "increase transparency, tighten oversight, and reduce reliance on credit rating agencies."

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As described in our post of June 18, the U.S. Treasury Department's financial reform plan included a proposal requiring that investment advisers to hedge funds and other private pools of capital whose assets under management exceed "some modest threshold" be registered with the Securities and Exchange Commission under the Investment Advisers Act. On July 15, the Treasury Department delivered such proposed legislation to Congress.

While some hedge fund managers are currently subject to regulation as “investment advisers” by the SEC under the Investment Company Act of 1940, the majority operate outside the ambit of the SEC as they are organized to qualify for exemptions from registration requirements that generally apply to managers of similar types of investment vehicles, such as mutual funds. The proposed legislation, however, would impose registration requirements on advisers to private investment funds with more than $30 million of assets under management. Funds would be subject to various obligations with respect to financial reporting, conflict of interest prohibitions and increased disclosure requirements. According to the Treasury Department's press release, the new legislation "would help protect investors from fraud and abuse, provide increased transparency, and provide the information necessary to assess whether risks in the aggregate or risks in any particular fund pose a threat to our overall financial stability.

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Canada’s new registration rule was published by the Canadian Securities Administrators in final form on July 17, 2009. 

The new regime is expected to be in force September 28, 2009 with transition periods for implementation of aspects varying.  The new regime, which has been several years in the making, is intended to harmonize, streamline and modernize registration requirements and exemptions across all Canadian jurisdictions.  It regulates dealers and advisers, effectively eliminating the dealer registration exemption for trading in the exempt market in Canada, and imposes a new registration requirement for investment fund managers. 

The new regime has significant implications for Canadian and non-Canadian market participants, particularly those now doing business on an unregistered or exempt basis. 

More details of the regime and its impact on particular types of market participants and their business activities are available by clicking the relevant topic set out below.

OVERVIEW OF CANADA'S NEW REGISTRATION REGIME Impact on Limited Market Dealers & Unregistered Dealers Trading in the Exempt Market Impact on Investment Fund Managers Impact on Portfolio Managers & Investment Counsel Impact on International Dealers & Non-Canadian Dealers Trading in the Exempt Market Impact on International Advisers Impact on Investment Dealers & Mutual Fund Dealers Impact on Issuers Generally Impact on Investment Funds Impact on Private Equity and Venture Capital Funds Impact on Non-Canadian Investment Funds Privately Placing Securities in Canada New Compliance Requirements for Registrants Registering in Multiple Jurisdictions Quebec’s Derivatives Act Trading or Advising in Commodity Futures COMBINED DOCUMENT INCLUDING ALL ABOVE SECTIONS USEFUL LINKS (EN) | USEFUL LINKS (FR)

ARCHIVED SEMINARS    Aug. 13 - Registration Reform in Canada: The Finish Line is Here  View webcast Download (audio only) Aug. 20 - The Practical Impact of the New Registration Regime in Canada: A Road Map for Implementation View webcast Download (audio only)

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Ramandeep Grewal

In conjunction with publishing the final rules relating to registration reform on July 17, 2009 (in the form of National Instrument 31-103 Registration Requirements and Exemptions), the Canadian Securities Administrators (CSA) also published an amended and restated National Instrument 45-106 Prospectus and Registration Exemptions (the Revised NI 45-106) along with revised forms and companion policy. Most of the changes reflected in Revised NI 45-106 were required in order to harmonize that instrument with the new registration regime.

Pursuant to the new registration regime, in most jurisdictions of Canada, registration as a dealer will be triggered based on a “business trigger” as opposed to a trade-based trigger. The former NI 45-106 contained prospectus and registration exemptions based on the nature of the trade being undertaken. Since a trade-based trigger will not longer apply in most Canadian jurisdictions, NI 45-106 has been restructured in order to, primarily, be a prospectus exemption rule. The registration exemptions have been moved to a separate part of the instrument and are set to expire after a six-month transition period. However, certain trade-based exemptions (including “accredited investor” and “$150,000 minimum investment amount”) will continue to be available in the provinces of British Columbia, Alberta, Manitoba and in each of the three Territories. These exemptions will, however, be subject to new conditions setting out the circumstances in which they may be used, which conditions are to be set out in blanket orders issued by the respective regulators. Notably, these exemptions will be available only to those who are not otherwise registered. Saskatchewan is also considering whether to adopt this approach and will release a separate notice once it has made this decision.

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Ramandeep Grewal

On July 16, 2009, the U.S. Department of the Treasury released draft legislation that includes proposed amendments relating to "say-on-pay" in the form of a required non-binding shareholder vote on compensation as well as proposals relating to the authority and composition of an issuer’s compensation committee.

With respect to “say-on-pay”, the draft legislation would require any proxy, consent or authorization for an annual meeting of shareholders (or special meeting in lieu thereof) to provide for a separate non-binding shareholder vote to approve the compensation of executives. In addition to including such a non-binding shareholder vote relating to annual compensation disclosure, the draft legislation would also require that a similar vote be provided to shareholders in any proxy or consent solicitation material for a meeting or special meeting of shareholders that concerns an acquisition, merger, consolidation, or proposed sale or other disposition of all or substantially all of the assets of an issuer. In such circumstances, the person making the solicitation would be required to disclose any agreements or understanding that such person has with executive officers concerning any type of compensation that is based on, or otherwise relates to, the proposed transaction as well as the aggregate total of all such compensation that may be paid or become payable to, or on behalf of, such executive officer. The disclosure is to be set out in further regulations to be promulgated by the Securities and Exchange Commission and the SEC has been given one year to issue such further regulations or other rules that may be required. 

Continue Reading...

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The Canadian Securities Administrators have just published National Instrument 31-103 Registration Requirements and Exemptions (31-103) in final form. 31-103, which results from a comment and review process that started in early 2007, is expected to be in force on September 28, 2009, with varying transition periods for implementation of different aspects of the rule. 31-103 regulates dealers, advisers and investment fund managers and is intended to harmonize and streamline registration requirements and exemptions across all Canadian jurisdictions. Some of the more material changes in approach include the effective elimination of the dealer registration exemption for trading in the exempt market in Canada and the imposition of a new registration requirement for investment fund managers. 

The new registration regime has significant implications for Canadian and non-Canadian market participants, particularly those now doing business in any Canadian jurisdiction on an unregistered or exempt basis. 

We will be providing a comprehensive review of the new regime and its impact on particular types of market participants and their business activities in the coming days. 

Mark your calendars for the upcoming complimentary breakfast seminars in our Toronto and Montreal offices:

Registration Reform in Canada: The Finish Line is Here

Toronto: August 13, 2009
Montreal: August 25, 2009

The Practical Impact of the New Registration Regime in Canada: A Road Map for Implementation

Toronto: August 20, 2009
Montreal: September 1, 2009

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The Ontario Securities Commission recently released its 2009 Annual Report, highlighting its initiatives for the last year and outlining its broad goals going forward. The OSC's compliance and enforcement activities for the 2008-09 fiscal year were reviewed and the report noted the "substantial increase" in adjudicative activity for the year, representing a 48% increase in hearing days from the previous year. A total of 21 enforcement proceedings were commenced before an adjudicative panel, leading to almost $21 million in administrative penalties, disgorgement, settlement amounts and costs. The report also states that the OSC intends to maintain or increase its hearings schedule and expects to enhance its adjudicative case management process with proposals to be published in 2009-10.

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The British Columbia Securities Commission (BCSC) announced today that it is launching an expedited review process for mining companies seeking to distribute securities through the short form prospectus process. Citing the short window available to such companies to complete financing, the BCSC stated that it will use "best efforts" to review the company's SEDAR disclosure, including annual information forms and existing technical reports for compliance with National Instrument 43-101 Standards of Disclosure for Mineral Projects before the preliminary prospectus is filed. Companies for which British Columbia is the principal regulator may request such a review by emailing the BCSC's Chief Mining Advisor at least 10 days prior to filing the preliminary short-form prospectus.

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The U.S. Securities and Exchange Commission has now published proposed amendments to its rules in order to "improve the disclosure shareholders of public companies receive regarding compensation and corporate governance, and facilitate communications relating to voting decisions." The proposals, announced earlier this month, would expand the scope of compensation disclosure and analysis to require disclosure of a company's overall compensation program as it related to risk management. Disclosure requirements regarding the qualifications of directors and nominees would also be extended and certain issues relating to the solicitation of proxies and the granting of proxy authority would be clarified. Comments on the proposals are being accepted by the SEC until September 15, 2009.

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Chairman Schapiro Photo Courtesy of www.sec.gov

Chairman Mary Schapiro of the Securities and Exchange Commission (SEC) testified before the House Committee on Financial Services' Subcommittee on Capital Markets, Insurance and Government-Sponsored Enterprises yesterday respecting the SEC's "role in helping to address the financial crisis" as well as the actions being taken "to improve investor protection and restore confidence" in financial markets. In her testimony, Ms. Schapiro provided an overview of the SEC's recent work and its accomplishments during her tenure at the Commission and outlined the steps the SEC is taking to address ongoing issues, including strengthening examination and oversight, improving transparency and investor protection, combating abusive short selling, enhancing the regulation of credit rating agencies and strengthening shareholder rights. Of interest, Ms. Schapiro noted that the SEC's most recent proposals regarding the regulation of short sales resulted in over 3,700 comment letters, which are currently being reviewed by SEC staff.

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As part of the Investment Industry Regulatory Organization of Canada (IIROC) staff analysis on the adoption of IFRS in Canada, a survey of dealers was undertaken in early 2009 "to gauge the dealer membership's awareness and understanding of IFRS and to determine the impact of the implementation of IFRS compared to current regulatory reporting of the dealer member's business." Today, IIROC published a rules notice releasing the results of the survey as well as IIROC staff's recommendation that IFRS be adopted by all dealer members. Exemptions from specific accounting standards, however, are recommended, including exemptions from: (i) certain specific note disclosure requirements; (ii) the production of comparative financial data for the first IFRS financial statements; and (iii) the valuation of receivables and payables. Comments on the notice are being accepted by IIROC until September 14, 2009.

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On July 8, the Court of Appeal for British Columbia found the prohibition contained in section 148 of the British Columbia Securities Act that restricts disclosure by any person, except to his or her counsel, of "any information or evidence obtained or sought to be obtained or the name of any witness examined or sought to be examined" pursuant to an investigation by the British Columbia Securities Commission (BCSC) to be unconstitutional. The petitioner in the case, a Vancouver commercial litigation lawyer, argued that the provisions made it difficult to adequately defend allegations of misconduct under the Securities Act or to prepare a witness to give evidence. While the provisions allow for disclosure with the consent of the BCSC, the Court of Appeal found that the prohibition, which is similar to the one found under section 16 of Ontario's Securities Act, infringes on the right to freedom of expression enshrined in the Canadian Charter of Rights and Freedoms. The order of invalidity, however, was delayed for a year. Whether new provisions are drafted that pass constitutional muster, or whether other provinces are affected by the persuasive force of the decision, remains to be seen.

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Secretary Geithner speaking in February

Citing the "enormous scale" and "critical role" of over-the-counter (OTC) derivatives in the financial markets, U.S. Treasury Secretary Timothy Geithner outlined the steps the Obama Administration intends to take to regulate OTC derivatives in testimony to Congress on July 10. The steps include: (i) requiring that all standardized derivative contracts be cleared through well-regulated central counterparties and executed either on regulated exchanges or regulated electronic trade execution systems; (ii) encouraging greater use of standardized OTC derivatives through capital requirements and other measures to facilitate migration of such derivatives onto central clearinghouses and exchanges; (iii) requiring all OTC derivative dealers and other major market participants to be subject to supervision and registration; (iv) making OTC derivative markets fully transparent by the imposition of recordkeeping and reporting requirements; (v) providing the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) with authority to enforce the regulation of OTC derivative markets; (vi) working with the SEC and CFTC to improve standards governing who can participate in OTC derivative markets and (vii) working with international counterparts to ensure that the U.S. regulatory regime is matched by effective regimes internationally. The testimony follows on recent testimony by SEC Chairman Mary Schapiro on the same subject.

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The U.K. Financial Services Authority (FSA) released proposals on July 9 that would require financial firms to publish their complaints data every six months. The required information would include the number of complaints opened and closed, the percentage of claims closed within eight weeks and the percentage upheld. The FSA would also publish results from the whole sector twice a year. The FSA is accepting comments on the proposals until October 30, 2009.

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The Canadian Securities Administrators (CSA) today published a staff notice updating registrants on the CSA staff's position on whether all non-SRO registrants should be required to use International Reporting Standards (IFRS) beginning in 2011. In September 2008, the CSA published a notice considering the impact of the changeover to IFRS for registrants that are not members of an SRO. Non-SRO registrants, including investment counsel and portfolio managers, limited market dealers, exchange-contracts dealers and scholarship plan dealers do not fall under the definition of publicly accountable enterprise (PAE) and are, therefore, technically not covered by the Canadian Accounting Standard Board's implementation plan relating to mandatory adoption of IFRS.

According to today's notice, the CSA propose that all non-SRO registrants also be required to adopt IFRS for financial years beginning on or after January 1, 2011, regardless of whether the non-SRO registrants falls within the definition of a PAE. Once the new registration categories set out in National Instrument 31-103 Registration Requirements are adopted, the CSA propose that the requirement to use IFRS apply to those categories as well, again, regardless of whether the registrant is a member of an SRO. The Mutual Fund Dealers Association of Canada, the Investment Industry Regulatory Organization of Canada and the Autorité des marchés financiers in Quebec will separately provide notice to their members of the use of IFRS.

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The International Accounting Standards Board (IASB) yesterday announced that it has issued a final version of its International Financial Reporting Standard (IFRS) for small and medium-sized entities (SMEs). SMEs are described as entities that publish general purpose financial statements for external users such as owners that are not involved in managing the business, creditors and credit rating agencies, but that do not have public accountability. According to the IASB, the IFRS for SMEs will "provide improved comparability for users of accounts; enhance the overall confidence in the accounts of SMEs; and reduce the significant costs of maintaining standards on a national basis." The IFRS for SMEs simplifies many of the principles of full standards and is a result of a number of years of working group development, round-table meetings and field-tests of a draft IFRS.

While the Canadian Accounting Standards Board (AcSB) has stated that the standard for SMEs will not be adopted in 2011 along with IFRS for publicly accountable companies, it is conceivable that the new standard will become a requirement at some point in the future.

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On June 23, OPTI Canada Inc., a Calgary-based oil company announced the filing of a preliminary short form prospectus in connection with a public offering of shares. While the TSX will "generally accept notice of distributions by way of prospectus", under Section 606 of the TSX Company Manual, the TSX may apply the provisions respecting private placements, such as requiring securityholder approval, if the offering price of the shares falls below a certain discount to the market price. In deciding whether to apply the private placement provisions, the TSX will consider factors such as: the method of distribution; the participation of insiders; the number of placees; the offering price; and the economic dilution.

On June 25, OPTI announced that the TSX had decided to exercise its discretion to apply the private placement rules as the offering price fell below the permissible discount. While OPTI believed it impractical to conduct a shareholders meeting, it was successful in going forward with the public offering subsequent to an increase in the offering price, coupled with a decrease in the market price of its shares.

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On July 2, the Investment Industry Regulatory Organization of Canada (IIROC) published a guidance note relating to securities trading halts in coordination with the application of 'circuit breakers' on U.S. markets.  In the U.S., trading halts occur based on trigger levels of 10%, 20% and 30% drops of the Dow Jones Industrial Average, calculated at the beginning of each quarter using the previous month's average closing value. The NYSE thresholds have been announced for the third quarter of 2009 as 850 points, 1700 points and 2600 points respectively.

It is IIROC's policy that it will coordinate trading halts with U.S. markets, but for days when Canadian markets are open and American markets are closed, IIROC has published related triggers based on drops in the S&P/TSX Composite. The TSX trigger levels are: Level 1 (10%) - 1,050 points; Level 2 (20%) - 2,050 points and Level 3 (30%) - 3,100 points, with the effects of the triggers depending on the time of day the threshold drop occurs. Triggering the Level 1 threshold between 2:00 and 2:30 p.m. results in a 30 minute halt in trading, while trading would be shut down for the rest of the day should a Level 3 halt occur.

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The Joint Standing Committee on Retail Investor Issues today issued the Retail Information Survey Report, based on a survey of Canadians who use an investment advisor when making investment decisions. The Joint Standing Committee is made up of representatives of the Investment Industry Regulatory Organization of Canada, Mutual Fund Dealers Association, Ombudsman for Banking Services and Investments and Ontario Securities Commission, and was created with the purpose of, among other things, providing a forum for the discussion of retail investor issues. The report's findings provide insight into the way Canadian investors make decisions and their use of investment advisors and according to the release, provide data and analysis to assist the four organizations involved in their policy making activities with respect to retail investors.

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Schedule 26 of Ontario Bill 162, the Budget Measures Act, 2009, contains amendments to the Securities Act, as described in our post of May 22. While Royal Assent of Bill 162 was granted on June 5, 2009, some of the Bill's provisions are yet to come into force. Today's OSC Bulletin summarizes the changes and provides a table highlighting the provisions not yet in effect. The Ministry of Finance is expected to recommend dates to the Lieutenant Governor for two proclamation dates for the remaining provisions, the earlier to be near the end of September 2009 to facilitate the implementation of the new registration requirements in National Instrument 31-103 Registration Requirements at the same time across Canada.

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On June 30, the Obama Administration delivered to Congress a bill that would create the Consumer Financial Protection Agency. The agency's mission would be to regulate the provision of consumer financial products and services by promoting "transparency, simplicity, fairness, accountability, and access in the market". More specifically, the agency would ensure that: 

1. consumers have, understand, and can use the information they need to make responsible decisions about consumer financial products or services;
2. consumers are protected from abuse, unfairness, deception, and discrimination;
3. markets for consumer financial products or services operate fairly and efficiently with ample room for sustainable growth and innovation; and
4. traditionally underserved consumers and communities have access to financial services.

The agency would also be provided with the power to investigate practices, issue cease and desist orders and commence civil actions against those that violate provisions of the statute. According to the Treasury Department's press release, "[f]or the first time, a single agency will have authority to examine and enforce compliance against any institution, bank or non-bank, that provides consumer financial products or services." 

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On Thursday, the Canadian Securities Administrators unveiled a new web-based tool to assist in determining SEDAR regulatory filing fees for market participants across Canada. Based on the filing information entered by the user, the tool indentifies the relevant regulatory filing fees in all Canadian jurisdictions and provides legislative references. According to the CSA press release, the new tool "gives SEDAR users a faster, simpler and easier way to calculate the filing fees of various securities commissions."

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On July 1, the U.S. Securities and Exchange Commission (SEC) proposed rule revisions "intended to improve the disclosure provided to shareholders of public companies" with respect to executive compensation and corporate governance matters in proxy and information statements. The proposals would require information regarding: the relationship of a company's overall compensation policies to risk; the qualifications of executive officers, directors and nominees; company leadership structure; and potential conflicts of interest of compensation consultants. Amendments to proxy rules intended to clarify how they operate were also proposed. The proposals follow a speech by SEC Chairman Mary Schapiro on the subject on June 10. Comments on the amendments, yet to be published on the SEC website, are being accepted until 60 days after their publication in the Federal Register.

The SEC also approved a proposal of the New York Stock Exchange (NYSE) to eliminate discretionary voting by brokers in the election of directors. Currently, NYSE Rule 452 permits voting by brokers without instructions in certain situations. The changes will apply to shareholder meetings held on or after January 1, 2010.

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