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Securities

Canadian securities regulators adopt harmonized pre-file review of prospectuses

Mar 05, 2020

On March 5, 2020, the Canadian Securities Administrators (CSA) announced that issuers across Canada will now be able to submit their prospectuses for confidential review by securities regulators before publicly filing them.

The new program, explained in CSA Staff Notice 43-310 Confidential Pre-File Review of Prospectuses (for non-investment fund issuers), expands the availability of confidential pre-file reviews that some CSA jurisdictions are already conducting. Pre-file review allows for the earlier identification of material issues that might delay receipting the prospectus and closing the offering.

The pre-filed prospectus should be of the same form and quality expected in a publicly-filed prospectus and contain the disclosure (including financial statements) required under securities law. The pre-filed prospectus should also include an estimate of price of the securities and other information derived from that price. The reviews will generally be conducted by the issuer’s principal regulator. 

The new program will supersede existing pre-file review policies in the jurisdictions that offer them.

Review the press release on the CSA's website and the Notice on the OSC's website.

Canadian securities regulators propose new nationally harmonized crowdfunding rules

Feb 27, 2020

On February 27, 2020, the Canadian Securities Administrators (CSA) is seeking comment on proposed harmonized rules for start-up securities crowdfunding. Proposed National Instrument 45-110 "Start-up Crowdfunding Registration and Prospectus Exemptions" would replace and enhance the requirements currently in effect in British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick and Nova Scotia. Comments are requested by May 27, 2020.

Enhancements from the current requirements include: 

  • Increasing to $1 million (from $500,000) the maximum total amount that could be raised by a business under the crowdfunding prospectus exemption per year;
  • Increasing to $2,500 (from $1,500) the maximum investment a purchaser can make in an offering, with a higher limit of $5,000 if the purchaser obtains advice from a registered dealer that the investment is suitable for the purchaser;
  • Requiring funding portals to annually certify that they have sufficient working capital to continue operations for the following year.

Review the press release on the CSA's website and the proposed National Instrument on the OSC's website.

Canadian securities regulators seek additional comment on proposed rule for Non-GAAP and other financial measures

Feb 13, 2020

On February 13, 2020, the Canadian Securities Administrators (CSA) published a second notice and request for comment on revisions to a proposed rule for Non-GAAP and Other Financial Measures (the proposed rule). The rule would establish disclosure requirements for issuers that disclose non-GAAP and other financial measures, which often lack standardized meanings, resulting in potentially misleading disclosure.

Following stakeholder consultation, the CSA has made substantive changes to the proposed rule that: 

  • Limit the application to certain issuers;
  • Exempt certain disclosures, financial measures and documents;
  • Narrow the scope of what is considered a non-GAAP financial measure; and
  • Reduce and simplify disclosures.

The proposed rule was originally published for comment on September 6, 2018 and would replace Staff Notice 52-306 (Revised) Non-GAAP Financial Measures. The CSA conducted 38 outreach sessions across seven Canadian cities and reviewed 42 comment letters from issuers, investors, accounting firms, standard setters, industry associations and law firms.

Proposed National Instrument 52-112 Non-GAAP and Other Financial Measures Disclosure (the Proposed Instrument) and a revised version of proposed Companion Policy 52-112 Non-GAAP and other Financial Measures Disclosure (the Proposed Companion Policy) are available on CSA members’ websites. Comments should be submitted in writing by May 13, 2020.

Review the press release and notice on the CSA's website.

Canadian securities regulators release detailed data from review of women on boards and in executive officer positions

Jan 23, 2020

On January 23, 2020, the securities regulatory authorities in Manitoba, New Brunswick, Nova Scotia, Ontario, Québec and Saskatchewan (the participating jurisdictions) published the underlying data used to prepare CSA Multilateral Staff Notice 58-311 Report on "Fifth Staff Review of Disclosure regarding Women on Boards and in Executive Officer Positions", published on October 2, 2019.

This was the fifth consecutive annual review of disclosure related to women on boards and in executive officer positions conducted by the participating jurisdictions. 

The data was compiled from public documents filed on SEDAR and includes the name, industry and year-end of the 641 non-venture issuers who were included in the review sample. These issuers had year-ends between December 31, 2018 and March 31, 2019, and filed information circulars or annual information forms by July 31, 2019.

Review the press release on the CSA's website and the data on the the OSC's website.

Canadian securities regulators publish additional guidance for entities facilitating the trading of crypto assets

Jan 16, 2020

On January 16, 2020, the Canadian Securities Administrators (CSA) published Staff Notice 21-327 "Guidance on the Application of Securities Legislation to Entities Facilitating the Trading of Crypto Assets", to help these entities to determine situations where securities legislation may or may not apply.

The notice describes situations where securities legislation will and will not apply. For example, securities legislation may apply to platforms that facilitate the buying and selling of crypto assets that are commodities, because the user’s contractual right to the crypto asset may itself constitute a derivative, a security or both.

The relevant determination will depend on the facts and circumstances, including the obligations and intention to provide immediate delivery of the crypto asset. The notice provides guidance on what constitutes immediate delivery, together with a detailed example of a situation where securities legislation does not apply.

Review the press release on the CSA's website and the Staff Notice on the OSC's website.

Canadian securities regulators announce consultation on an access equals delivery model for public companies

Jan 09, 2020

On January 9, 2020, the Canadian Securities Administrators (CSA) published CSA Consultation Paper 51-405 “Consideration of an Access Equals Delivery Model for Non-Investment Fund Reporting Issuers” (the consultation paper), which solicits views on the appropriateness of introducing an “access equals delivery” model in the Canadian market. Under this model, delivery of a document would be effected by the issuer alerting investors that the document is publicly available on the System for Electronic Document Analysis and Retrieval (SEDAR) and the issuer’s website.

The consultation paper provides an overview of current delivery requirements under securities legislation and describes the CSA’s proposed access equals delivery model. Additionally, the paper discusses similar models that have been implemented in other jurisdictions. The CSA is seeking comment on, among other things, the scope and mechanics of access equals delivery, including the types of documents that could be covered by the model. Comments should be submitted in writing by March 9, 2020.

Review the press release and consultation paper on the CSA's website.

Be Prepared: Building Resilience for Today and the Future

Jan 07, 2020

On January 7, 2020, the Office of the Superintendent of Financial Institutions (OSFI) released a speech given by Jamey Hubbs, Assistant Superintendent, Deposit-Taking Supervision Sector, at the 2020 RBC Capital Markets Canadian Bank CEO Conference.

For OSFI, being ready means having a clear plan and last year we publicly released the OSFI Strategic Plan for 2019-2022. The plan sets out a framework for our work; it provides a vision for the future; confirms our purpose and values; and sets clear objectives. It identifies issues and challenges that require a response so OSFI can continue to perform its important role in keeping Canada’s financial system strong and resilient.

Review the full speech on the OSFI's website.

OSC publishes 2019 Corporate Finance Branch Report

Dec 18, 2019

On December 18, 2019, the Ontario Securities Commission (OSC) published its annual Corporate Finance Branch Report, an important resource to help issuers and their advisors comply with disclosure obligations.

The report provides issuers with guidance on trends and issues identified during compliance reviews. Key areas of focus in fiscal 2019 included MD&A disclosure, mining technical reports, non-GAAP financial measures, forward-looking information and executive compensation. The report also outlines the Branch’s operational and policy work.

Review the press release and report on the OSC's website.

Proxy season 2020: ISS and Glass Lewis update guidance

Dec 09, 2019

On December 9, 2019, Norton Rose Fulbright released a summary of the Institutional Shareholder Services (ISS) and Glass Lewis' updated proxy voting guidelines for the 2020 proxy season.

Changes to the guidelines include director meeting attendance and committee meeting disclosure, director overboarding, board diversity, ratification of auditors and excessive non-audit fees, policies applicable to majority-owned/controlled companies, and executive compensation and contractual payments and arrangements. Unless otherwise noted, the revised guidelines are generally applicable to meetings held in 2020.

Review the following information:

OSC makes doing business easier for Ontario market participants

Nov 19, 2019

On November 19, 2019, the Ontario Securities Commission (OSC) moved forward with more than 100 specific actions to reduce burden for market participants doing business in Ontario’s capital markets. As these changes are made, individuals and businesses regulated by the OSC can expect to see enhanced service levels, less duplication and a more tailored regulatory approach.

The changes will make it easier to start, fund and grow a business in Ontario, and make Ontario’s markets more competitive. While these initiatives will benefit businesses of all sizes, the OSC has carefully considered opportunities to benefit small and medium-sized companies, which make up nearly 70 per cent of those regulated by the OSC, and smaller registrant firms, which make up nearly a third of Ontario registrants.

Highlights include:

  • Small and medium-sized businesses that are registrants will see clear service standards for compliance reviews, and, in appropriate cases, be able to hire a Chief Compliance Officer (CCO) who acts in that role for other, unaffiliated firms. Companies will see more support for raising capital in the public markets, through a confidential prospectus review process prior to announcing an IPO or other financing.
  • Innovative businesses and startups will receive more flexibility in the OSC’s approach to registration, resales in the secondary market, and other regulatory requirements. Individuals applying to be CCO of fintech firms will be assessed based on their qualifications and on their broader business experience, and how the experience aligns with the firm’s business model. Startups seeking financing will see crowdfunding rules harmonized across the country.
  • Large businesses will see duplicative filing requirements eliminated in investment funds and registration rules; delivery of documents, like prospectuses, electronically; and measures to facilitate the registration of multiple CCOs for large registrants with multiple lines of business. Public companies will have the ability to conduct at-the-market offerings without obtaining prior exemptive relief.

The 107 initiatives outlined in the report address 34 underlying concerns identified by staff during the consultation process. The initiatives will address those concerns by clarifying regulatory expectations, improving technology, enhancing coordination with other regulators, and providing greater support during regulatory interactions.

Review the press release and report on the OSC's website.

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