Canadian Regulator Provides Guidance To Improve Compliance of Disclosure Requirements Related to Prospectus Exemption

The Canadian Securities Administrators (CSA) published two notices aimed at improving market participant compliance with exemptions to prospectus requirements. Staff Notice 45-308 Guidance for Preparing and Filing Reports of Exempt Distribution and Multilateral Staff Notice 45-309 Guidance for Preparing and Filing an Offering Memoranda, offer guidance related to disclosure rules found under National Instrument (NI) 45-106 Prospectus and Registration Exemptions. 

“The CSA is committed to ensuring that market participants understand what is expected of them when relying on prospectus exemptions to sell securities,” said Bill Rice, Chair of the CSA and Chair and CEO of the Alberta Securities Commission. “These Notices not only provide clear guidance to assist issuers in preparing and filing certain exempt market documents, but also serve as a reminder to market participants who rely on prospectus exemptions that their filings or disclosure may come under staff review and that non-compliance may result in appropriate action by a CSA regulator.” 

The Notices primarily focus on Form 45-106F1 Report of Exempt Distribution and Form 45-106F2 Offering Memorandum for Non-Qualifying Issuers, and provide guidance on such topics as filing deadlines, correct and consistent reporting, financial statement requirements and adequate disclosure of certain information. 

Issuers should be aware that the primary responsibility for compliance with NI 45-106 rests with them and that the exempt market is not free from regulation and oversight.

CSA and IIROC Implement a Dark Liquidity Framework in Canada

The Canadian Securities Administrators (CSA) and the Investment Industry Regulatory Organization of Canada (IIROC) are implementing a new regulatory framework for the use of orders entered without pre-trade transparency (dark orders). 

The CSA, the council of the securities regulatory authorities of Canada’s provinces and territories, co-ordinates and harmonizes regulation for the Canadian capital markets. 

IIROC is the national self-regulatory organization which oversees all investment dealers and trading activity on debt and equity marketplaces in Canada.

To implement the framework, amendments have been made to National Instrument 21-101 Marketplace Operation and to the Universal Market Integrity Rules (UMIR), approved by the CSA on March 30, 2012. The framework is comprised of the following key elements: 

• Visible order priority –Visible orders will have execution priority over dark orders on the same marketplace at the same price; 
• Meaningful price improvement – In order to trade with a dark order, smaller orders must receive a minimum level of price improvement, which is defined as one trading increment or half a trading increment for securities with a bid-ask spread of one trading increment; and 
• Minimum size – IIROC has the ability to designate a minimum size for dark orders. It is not doing so at this time, but the CSA and IIROC will monitor market developments closely to consider whether and when IIROC should implement a minimum size. 

Effective October 10, 2012, the UMIR provisions will introduce a comprehensive and proactive regulatory approach to safeguard the price discovery process in Canadian equity markets. 

“The Canadian capital markets are developing rapidly and it’s incumbent on regulators to set high standards to ensure these changes are in the best interests of investors and the markets,” said Bill Rice, Chair of the CSA and Chair and CEO of the Alberta Securities Commission. “This new regulatory framework strikes an appropriate balance that will allow for continued innovation while maintaining fair and efficient capital markets.” 

“The new rule framework recognizes the increasing use of dark liquidity and balances displayed and dark liquidity for healthy price discovery,” added Susan Wolburgh Jenah, IIROC President and Chief Executive Officer. “These proposals are intended to ensure Canadian equity markets continue to evolve in a fair and competitive manner that strengthens market integrity and investor protection.” 

The initiative follows extensive consultations with industry and stakeholders that began in 2009. The rules are designed to enable institutional traders to continue to execute large orders with minimal market impact, while ensuring that investors with smaller orders receive meaningful price improvement when they trade with dark orders. 

A copy of IIROC’s Notice of Approval “Provisions Respecting Dark Liquidity” is available here at IIROC.

Canadian Regulator Seeks Comment on Proposed Over the Counter Derivatives Exemptions

The Canadian Securities Administrators (CSA) published for comment CSA Consultation Paper 91-405 - Derivatives: End-User Exemption. The Consultation Paper, which is part of a series of proposals designed to improve the regulatory oversight of over-the-counter (OTC) derivatives in Canada, sets out the CSA Derivatives Committee’s recommendations for an exemption from specific requirements being developed to regulate over-the-counter (OTC) derivatives. This end-user exemption would be available to qualifying businesses that use OTC derivatives as a risk management tool. 

The paper sets out the Committee’s position on the application of the proposed end-user exemption such as what criteria would be required to qualify, what criteria were considered but excluded, and what a qualifying end-user would need to do to rely on the proposed exemption. 

“The CSA’s commitment to establish a comprehensive framework for OTC derivatives regulation must balance the need to meet international commitments with the needs of individual market participants in Canada,” said Bill Rice, Chair of the CSA and Chair and CEO of the Alberta Securities Commission. “The proposed end-user exemption would permit a business that uses OTC derivatives to manage its own business risks to continue to use these products in a cost effective manner, without increasing risk to the overall market.”

Canadian Securities Regulators’ 2011 Enforcement Report Highlights Proactive Measures to Protect Investors

The Canadian Securities Administrators (CSA) today released its 2011 Enforcement Report that outlines how Canadian securities regulators are actively working to protect investors and prevent abusive conduct in the marketplace. 

Key highlights of the report include proactive measures taken by CSA members, such as using protective orders and communicating with investors, to prevent harm. 

“CSA members work to deter wrongdoing and to protect investors through both enforcement efforts and investor education,” said Bill Rice, CSA Chair and CEO and Chair of the Alberta Securities Commission. “This report focuses on the actions our enforcement teams take to respond to violations ranging from illegal insider trading to market manipulation.”

This year’s report demonstrates that enforcement action against wrongdoing in Canada’s capital markets is a top priority for Canadian securities regulators. CSA members concluded a total of 124 cases in 2011, involving 237 individuals and 128 companies. Of these cases, 24 were concluded in court proceedings, which resulted in jail sentences against eight individuals.

The CSA’s 2011 Enforcement Report is available for the first time in HTML format in which readers can navigate to specific sections of the report quickly and easily. The report comes out in advance of Fraud Prevention Month in March, which highlights tools and resources Canadians can use to recognize and avoid investment fraud, and lets them know they can turn to securities regulators for help.

Key highlights of the 2011 Enforcement Report:

• 66 of the concluded cases involved illegal distributions, which represented the largest category of concluded cases.
• 124 concluded cases involved a total of 237 individual and 128 companies that resulted in:
• Fines and administrative penalties of more than $52 million
• Nearly $50 million in restitution, compensation and disgorgement
• Jail sentences against eight individuals
• 63 interim orders restricting trading and/or freezing the assets against 109 individuals and 108 companies.
• 126 matters commenced against a total of 231 individuals and 121 companies.
• 47 of the 124 concluded cases were concluded by a contested hearing before a tribunal.
• 31 appealed cases, an increasing number.

Canadian Securities Regulator Modernize Rules Concerning Mutual Funds

The Canadian Securities Administrators (CSA) announced the completion of the first phase of its “Modernization Project”, which seeks to update the product regulation of publicly offered investment funds.

The purpose of the Project is to modernize investment fund regulation, making it more effective and relevant in today’s more diverse and increasingly innovative retail marketplace.

Specifically, the amendments introduced in the first phase recognize the proliferation of Exchange Traded Funds (ETFs) and streamline their access to the market by eliminating the need for them to apply for regulatory exemptions. This will reduce regulatory costs, which is also expected to benefit investors. The amendments are also designed to enhance the resilience of money market funds to certain short-term market risks, by introducing new liquidity requirements and term restrictions.

“By modernizing these important investment fund rules, we are responding to the rapidly evolving investment fund landscape, as well as maintaining consistency with global standards,” said Bill Rice, Chair of the CSA, and Chair and Chief Executive Officer of the Alberta Securities Commission.

  

Subject to ministerial approval, the amendments will come into force April 30, 2012. The new requirements for money market funds will come into force following a transition period.

Canadian Securities Regulator Adopt Regulatory Regime for Credit Rating Organizations

The Canadian Securities Administrators (CSA), capital and securities market regulator of Canada has adopted of NI 25-101 Designated Rating Organizations, which will impose requirements on credit rating organizations wishing to have their credit ratings eligible for use in securities legislation.

The rule establishes a regulatory framework for the oversight of credit rating organizations by requiring them to apply to become a “designated rating organization” and adhere to rules concerning conflicts of interest, governance, conduct, a compliance function and required filings. The rule is also designed with the intent to be consistent with international regimes and European Commission endorsement and certification provisions, so that European market participants can rely on ratings of Canadian credit rating organizations associated with those registered in Europe.

“The CSA recognize the significant role credit rating organizations play in today’s global credit markets,” said Bill Rice, Chair of the CSA, and Chair and Chief Executive Officer of the Alberta Securities Commission. “By considering international developments while creating the Canadian regulatory regime for credit rating agencies, the CSA has set appropriate standards for credit rating agencies that are also consistent with international regimes.”

In March 2011, the CSA published for comment amendments to the rule, which included feedback received from the European Security Markets Authority on whether the proposed Canadian regulatory framework was "equivalent" to the EU Regulation. Following comments received by investors and marketplace participants on the 2011 Proposal, minor amendments have been made to enhance the rule.

In some jurisdictions, proclamation of legislation or proclamation of legislation and ministerial approvals are required. Subject to obtaining all necessary approvals, the rule will come into effect on April 20, 2012.

The final regulatory regime for credit rating organizations and related amendments are available on the websites of CSA members.

The CSA, the council of the securities regulators of Canada’s provinces and territories, co-ordinates and harmonizes regulation for the Canadian capital markets.