2024

CSA Provides Updated Guidance on Virtual Shareholder Meetings

Feb 22, 2024

On February 22, 2024, the Canadian Securities Administrators (CSA) provided reporting issuers updated guidance on virtual shareholder meetings following initial guidance provided in February 2022.

This follows concerns raised by shareholders about limitations in exercising their rights and participating effectively in such meetings. The guidance aims to help companies comply with regulations and ensure better engagement and access to information for shareholders during virtual meetings.

In order for reporting issuers to fulfill their obligations under securities legislation, it is important that reporting issuers provide clear and comprehensive disclosure in management information circulars and associated proxy-related materials with respect to the logistics for accessing, participating and voting at a virtual meeting.

Reporting issuers can facilitate shareholder participation at virtual shareholder meetings by:

  • simplifying registration and authentication procedures
  • providing shareholders with opportunities to make motions or raise points of order
  • ensuring shareholders have the ability to raise questions and provide direct feedback to management in any question-and-answer segment of the meeting
  • indicating where shareholder proposals will be presented and voted on at the meeting, coordinating with proponents of those proposals in advance of the meeting, and ensuring proponents are given a reasonable opportunity to speak to the proposal and respond to any questions that arise from the proposal
  • ensuring any virtual platform used by an issuer has functionality permitting shareholder participation to the fullest extent possible; and
  • ensuring the Chair is experienced and knowledgeable in the technological platform being used for the virtual meeting.

CSA Staff will continue to monitor the practice of virtual shareholder meetings, including reviewing disclosure in proxy-related materials during the upcoming proxy season. Further guidance and updates may be issued, as required.

Access the updated guidance on the CSA’s website.

CSA publishes proposed amendments to public crypto asset fund rules

Jan 19, 2024

On January 19, 2023, the Canadian Securities Administrators (CSA) published Notice and Request for Comment on Proposed Amendments to National Instrument 81-102 Investment Funds Pertaining to Crypto Assets. The Notice sets out a series of proposed amendments and changes to reporting issuer investment funds that seek to invest directly or indirectly in crypto assets (public crypto asset funds).

The primary objectives of the proposals are to provide greater regulatory clarity on permitted crypto asset investment activities, to prohibit the use of crypto assets in securities lending and (reverse) repurchase transactions and to confirm custodial expectations.

The most significant updates to the existing public crypto asset fund practices include:

  • explicit limitations on Non-Fungible Tokens ;
  • mandates for investing solely in crypto assets (or derivatives with crypto asset underliers) that are traded on recognized exchanges while continuing to allow purchases on crypto asset trading platforms;
  • requiring crypto custodians to obtain, and deliver to public crypto asset funds, SOC 2 Type 2-like reports

The Notice represents the second phase of the CSA’s ongoing effort to establish a comprehensive regulatory framework for public crypto asset funds in Canada. Following their initial guidance document (CSA Staff Notice 81-336 Guidance on Crypto Asset Investment Funds), these amendments aim to further clarify existing securities regulations and refine expectations for how such funds operate under National Instrument 81-102 Investment Funds.

Access the notice on Ontario Securities Commission’s website.

SEC Chair Gary Gensler Advocates for Mandatory Disclosure

Mar 22, 2024

On March 22, 2024, the Securities and Exchange Commission (SEC) Chair Gary Gensler emphasized the importance of mandatory disclosure in safeguarding investors and enhancing market efficiency during his speech at Columbia Law School. He acknowledged Jack Coffee's influential work and reaffirmed the enduring significance of robust disclosure frameworks in modern financial markets.

Gensler explained three tenants behind the historical drive for mandatory disclosure:

  • the public good nature of securities information
  • misalignment between management and shareholder interests; and
  • the imperative for efficient valuation

He also stressed the necessity of regulatory intervention to ensure consistent, comparable, and reliable information dissemination, drawing parallels between historical debates over mandatory versus voluntary disclosure.

Throughout his speech, Gensler emphasized the pivotal role of mandatory disclosure in fostering efficient markets, facilitating capital formation, and engendering investor trust. He also reaffirmed the SEC's commitment to upholding rigorous disclosure standards grounded in materiality, including enhanced disclosures on climate, cybersecurity, SPACs, and executive compensation.

Access the speech on the SEC’s website.

SEC Chair warns about “AI Washing” again

Feb 13, 2024

On February 13, 2024, the Securities and Exchange Commission’s (SEC) Chair Gary Gensler delivered a speech at Yale Law School addressing various aspects of artificial intelligence (AI). He focused mainly on the issue of "AI washing” wherein companies mislead investors about their utilization of AI and associated risks.

Similar to his speech delivered in December 2023, Gensler once again highlighted the SEC's role in ensuring transparency and preventing fraud in AI-related disclosures, emphasizing the need for companies to provide accurate information about their AI usage and associated risks to investors.

Moreover, Gensler discussed the broader implications of AI in finance, highlighting its potential benefits in efficiency and user experience, as well as its challenges such as unexplainable decisions, biases, and inaccuracies. He warned against the systemic risks posed by the widespread adoption of AI models in financial institutions, citing concerns about herding behavior and network interconnectedness. He also stressed about the importance of accountability and responsible governance in deploying AI models, urging companies to implement appropriate safeguards and disclose material risks to investors.

Access Gary Gensler’s speech on the SEC’s website

SEC’s Division of Corporate Finance Workshop Addresses AI Disclosures

Apr 03, 2024

On April 3, 2024, the Securities and Exchange Commission’s (SEC) Division of Corporate Finance Workshop at “The SEC Speaks in 2024” revealed that 59% of annual reports filed by large, accelerated filers made some mention of Artificial Intelligence (AI), up from 27% in 2022. Discussions were included in risk factors, the business section or MD&A, and 33% of filings included disclosures in both the business and risk factors sections.

The Staff also identified the financial statements, disclosure controls and procedures and the board’s role in risk oversight as other areas where AI-related disclosures may be required under existing rules.

The staff highlighted the following considerations:

  • Whether the use of AI exposes the company to additional operational or regulatory risks, including risks related to data privacy, discriminatory results or bias, IP, consumer protection, regulatory compliance and macroeconomic conditions.
  • Whether the company’s disclosure on its use and development of AI and material AI risks are tailored to its facts and circumstances.
  • Whether the company has support for its claims when disclosing AI opportunities.
  • Whether disclosure of the board’s role in AI oversight is warranted.
  • Whether investors would benefit from disclosure of the company’s use of any AI risk management framework—like NIST or any industry-specific guidance (similar to cybersecurity disclosures).
  • Whether the company faces risks related to the EU AI Act and whether current general disclosure, if any, should be more tailored to address how a company will be impacted based on its particular facts and circumstances.

Access the workshop video by the SEC.

TSX Venture Exchange announced new expedited listing process for advanced applicants

Dec 13, 2023

On December 13, 2023, the TSX Venture Exchange (the “TSXV”) launched the TSXV Passport Listing Process, which provides an expedited listing process for advanced applicants that meet specified criteria. Applicants that meet this standard will be able to fast-track their listing application.

The Passport Process comprises of three steps:

  • Step 1 – Pre-File Letter and Meeting
  • Step 2 – Passport Application
  • Step 3 – TSXV Review

The goal of the Passport Listing Process is to identify advanced new listing applicants, provide them with greater certainty, accelerate their listing and capital-raising timelines and reduce costs associated with the listing process. Applicants seeking to list on the TSXV pursuant to the Passport Listing Process benefit from greater access to TSXV staff and expedited reviews.

All application materials and due diligence must be substantially completed at an early stage. Following submission of the required documentation, the TSXV commences its review on an expedited basis and provides an initial comment letter within five to seven business days. Passport Listing Process applicants can expect regular meetings with the TSXV to discuss comments and the status of their application.

Review the process on the TSX website.

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