Category: Corporate Law
In the Ontario 2021 Fall Economic Statement the Government of Ontario announced its intention to address tax evasion, money laundering and other illicit financial activities through amendments to the Business Corporations Act (Ontario) (the Amendments). The Amendments will require privately-held Ontario corporations to record the identities and details of all individuals who exercise significant control over those corporations. Corporations that offer securities to the public and their wholly owned subsidiaries will be exempt from these requirements.
The information requirements will apply to an individual (referred to as an “individual with significant control”) who: a) owns, controls or directs 25% or more of the voting shares of the corporation or shares that are worth 25% or more of the fair market value of all outstanding shares of the corporation; or b) has direct or indirect influence over the corporation without owning at least 25% of the shares. A person would also be caught by these requirements if they own or control a significant number of shares jointly with other people.
The information required to be maintained by the corporation of each individual with significant control includes: their name, date of birth and address, jurisdiction of residence for tax purposes, date of becoming or no longer being an individual with significant control, a description of how the person has significant control, and a description of the steps the corporation takes to keep the information current each year. Updates to the information would be needed at least once during each financial year of the corporation and within 15 days of the corporation becoming aware of a change in the relevant information.
The Amendments are to be effective January 1, 2023 and would bring Ontario in line with other Canadian provinces. If you have any questions about the Amendments or how they may impact your business, please contact us.
February 28, 2022
The Nova Scotia Securities Commission (NSSC) and the New Brunswick Financial and Consumer Services Commission (FCNB) have issued a short consultation paper with respect to disclosure on diversity in the capital markets and are accepting comments until November 15th. The consultation is further to the CSA’s announcement earlier this year that they will be conducting research to help determine how the disclosure needs of Canadian investors and practices among public companies have changed since the gender diversity requirements in National Instrument 58-101 Disclosure of Corporate Governance Practices were adopted. The NSSC and the FCNB asked for responses to a number of specific questions about the disclosure regime regarding diversity. It is noted in the paper that a number of foreign jurisdictions are already requiring additional disclosure with respect to gender and diversity targets. The consultation seeks feedback on whether additional disclosure requirements are needed for Canadian reporting issuers, how investors may use that information, and the impact on public companies in disclosing the data.
October 29, 2021
Effective October 19, 2021, the Government of Ontario has indicated that the Ontario Business Registry will be launched and available for filing voluntary dissolutions under Part XVI of the Business Corporations Act (Ontario). Importantly, consent of the Ministry of Finance will no longer be required as part of the process. The change will reduce the time required for dissolving an entity, as in the past receipt of the Ministry of Finance’s consent often required 4-6 weeks. Other aspects of the voluntary dissolution process will remain the same. Specifically, the dissolution must be authorized by a special resolution passed at a meeting of the shareholders or with the consent in writing of all the shareholders entitled to vote at such meeting. Additionally, the debt, obligations, and liabilities of the corporation, including any tax liability, must be discharged and the Articles of Dissolution must be signed by a director or officer of the corporation. If you are considering dissolution for one of your entities or would like to discuss the dissolution process, please do not hesitate to contact us.
September 30, 2021
Our colleagues at BLG have written a number of thought-provoking articles we thought might interest our readers, including the following:
For more information, please visit the BLG website.
September 30, 2021
Our colleagues at BLG LLP have written a number of thought-provoking articles our readers may be interested in, including the following:
August 31, 2021
Our colleagues at Borden Ladner Gervais LLP publish a wealth of information every month. All are available on the BLG’s website, under Insights. Some selected Insights published in June that may be of interest to you include a primer on M&A in Canada, an update on privacy legislation in Ontario and an article and webinar on the future of Ontario’s new iGaming markets. For more information, please visit the following links:
June 30, 2021
On March 29, the Canadian Securities Administrators (CSA) and the Investment Industry Regulatory Organization of Canada (IIROC, and together with the CSA, Regulators) jointly published Staff Notice 21-329 Guidance for Crypto-Asset Trading Platforms: Compliance with Regulatory Requirements (Staff Notice). The Staff Notice is intended to provide regulatory guidance on how securities legislation, as it currently stands, applies to platforms (Crypto Asset Trading Platforms, or CTPs) that facilitate or propose to facilitate the trading of crypto assets that are securities (Security Tokens) or instruments or contracts involving crypto assets (Crypto Contracts) in the interim period while the Regulators continue working on establishing a long-term regulatory framework for CTPs. The Regulators’ work in this area began with the publication of Consultation Paper 21-402 Proposed Framework for Crypto-Asset Trading Platforms back in March 2019 (Consultation Paper), which we reported on in a previous issue of our bulletin.
In providing their guidance, the Regulators divide the CTPs into two broad categories: The Marketplace Platforms, which operate in a manner similar to marketplaces as currently defined in securities legislation and the Dealer Platforms, which are CTPs that are not marketplaces.
Dealer Platforms: The two most common characteristics of a CTP that is a Dealer Platform are that:
- It only facilitates the primary distribution of Security Tokens; and
- Clients do not interact with one another on the CTP.
The Regulators indicate that for a Dealer Platform that only facilitates distributions or the trading of Security Tokens in reliance on prospectus exemptions and does not offer margin or leverage, registration as an exempt market dealer or, in some circumstances, restricted dealer may be required.
A Dealer Platform that trades Crypto Contracts, on the other hand, would be expected to be registered in an appropriate dealer category, and where it trades or solicits trades for retail investors that are individuals, it will generally be expected to be registered as an investment dealer and be an IIROC member.
Marketplace Platforms: Generally, a CTP would be a Marketplace Platform if it:
- Constitutes, maintains or provides a market or facility for bringing together multiple buyers and sellers and their orders for trading in Security Tokens and/or Crypto Contracts; and
- Uses established, non-discretionary methods under which such orders will be executed and processed.
Marketplace Platforms will generally be subject to the requirements applicable to alternative trading systems, such as those set out in National Instrument 21-101 Marketplace Operations.
Additionally, it is contemplated that activities on Marketplace Platforms will be subject to market integrity requirements, such as IIROC’s Universal Market Integrity Rules or similar provisions.
Where a Marketplace Platform also conducts activities similar to those performed by Dealer Platforms, it would also be subject to the appropriate dealer requirements, including dealer registration requirements, discussed above.
The Regulators acknowledge the continued evolution of fintech businesses and the emergence of a wide variety of CTP models, and note in all cases that exemptive relief may be available and terms and conditions that are tailored to their businesses may be appropriate.
The Staff Notice also contains in an appendix the Regulators’ responses to the comments received from industry stakeholders on the Consultation Paper, but does not give much indication on what the long-term regulatory framework may look like (other than, perhaps, the taxonomy of CTPs that is used in the Staff Notice) or an expected timeline.
They encourage CTPs to consult with their legal counsel and to contact staff of their local securities regulatory authority on the appropriate steps to comply with securities legislation and IIROC rules. If you have any questions on the implications of this guidance, please contact us.
April 30, 2021
On March 29, 2021, Bill 22, Red Tape Reduction Implementation Act, 2020, was proclaimed into force in Alberta. As a result, an Alberta corporation will no longer be required to have any Canadian citizens on its board of directors. In addition, director residency information will no longer be collected.
Previously, businesses incorporated under the Business Corporations Act (Alberta) were required to have a minimum of 25% of their directors be Canadian residents. The move is part of a larger Government of Alberta mandate to attract businesses by reducing costs and regulatory burden for Alberta businesses. We previously reported similar proposed changes for corporations incorporated under the Business Corporations Act (Ontario) pursuant to Bill 213. Bill 213 has received royal assent on December 8, 2020 but has not yet been proclaimed into force.
April 30, 2021
On December 10, the OSC published a report on recent capital raising activity in the exempt market by corporate (i.e., non investment-fund issuers). As noted in CSA press release, the report revealed that while there has been notable year-over-year growth in the number of individual investors with capital invested in Ontario’s exempt market, the number of issuers raising capital has remained relatively stable. The report can be found on the OSC website here.
December 11, 2020
On November 19, the Corporate Finance Branch (CFB) of the Ontario Securities Commission (OSC) published Staff Notice 51-731 Corporate Finance Branch 2020 Annual Report (Report). The Report provides insight into how the CFB has undertaken its operations throughout fiscal 2020 and is a resource to help issuers and their advisors comply with their reporting obligations. Due to the ongoing impact of the Covid-19 pandemic, the Report also provides issuers with guidance on additional considerations related to the impact of Covid-19. Issuers should review the Report to better understand CFB expectations related to their regulatory obligations, including continuous disclosure obligations with respect to Covid-19.
Key compliance trends noted in reviews included issues relating to MD&A disclosure, the use of non-GAAP financial measures, forward-looking information and executive compensation. In addition, the Report notes that in fiscal 2020, the CFB receipted approximately 400 prospectuses, representing a slight decrease from the prior year. Key issues noted by staff during prospectus reviews include issues relating to an issuer’s (in)sufficiency of proceeds and financial condition, as well as relating to audit committees in the context of an IPO. In addition, the Report provides an update on the progress made on reducing the regulatory burden for issuers. A key recommendation for burden reduction, which was completed in 2020, includes a program that allows issuers to file an entire prospectus confidentially for staff review prior to filing a preliminary prospectus publicly on SEDAR.
Issuers who utilize the offering memorandum prospectus exemption should take note of specific reminders in the Report relating to ongoing financial reporting to investors and the OSC, as well as relating to marketing materials. The Report notes that not only are such materials incorporated by reference into the offering memorandum, but they must be filed with the OSC, either together with the offering memorandum, or, if subsequently prepared, within 10 days after their first use.
December 11, 2020
How do you summarize a year like no other in history? Well, the shift to a remote work environment didn’t do much to slow our regulators who, along with the Canadian asset management industry, rose to meet the multi-faceted challenges presented by the COVID-19 pandemic.
A. Burden Reduction and Capital Markets Modernization Initiatives
Regulators moved forward with initiatives intended to reduce regulatory burdens and modernize the regulatory framework, including the following:
Crowdfunding: In February, the Canadian Securities Administrators (CSA) proposed a harmonized, start-up crowdfunding regime. In July, after the comment period closed on the CSA proposal, the Ontario Securities Commission (OSC) issued an interim class order (Order) providing prospectus and registration exemptions for start-up crowdfunding that are similar to the exemptions already in place in a number of other provinces. The Order is expected to remain in place until the earlier of the date the new CSA regime is adopted or January 31, 2022.
SRO Reform: When market participants and regulators weren’t coming to grips with remote work arrangements, they were debating whether and how to reform Canada’s self-regulatory organizations (SROs) for registrants. The Mutual Fund Dealers Association of Canada (MFDA) kicked things off in February when it published its Proposal for a Modern SRO. The CSA followed up in June with its own consultation paper on SRO reform, and the Ontario Government’s Capital Markets Modernization Task Force (Task Force) set out its draft recommendations on the subject in its July consultation report.
OSC Burden Reduction Initiatives: In early 2019, the OSC kicked off a multi-year process to identify and implement actions to reduce regulatory burdens in Ontario and improve the investor experience. Check out our December 2019 regulatory recap if you’d like to refresh your memory. In May 2020, the OSC provided a progress report on its regulatory burden reduction initiatives and provided a further update in the June 2020 Interim Progress Report on its 2019-2022 priorities. We also reported on several specific projects, including the following:
- In June, the CSA announced changes designed to make it easier for advising representatives (ARs) of portfolio managers (PMs) to register as client relationship management (CRM) specialists.
- In July, the CSA published guidance on flexible CCO arrangements.
- In August, the CSA published final amendments that raise the threshold for when non-venture reporting issuers are required to file business acquisition reports.
- In October, the Ontario government proposed changes to the Business Corporations Act (OBCA) that, if enacted, will eliminate director residency requirements for OBCA corporations and introduce a more flexible regime for privately held OBCA corporations regarding written shareholder resolutions.
B. Business Continuity and Risk Management
Business continuity planning and risk management have been top of mind for firms and regulators this year, and not just because of the COVID-19 pandemic.
- In March we discussed pandemic-related business continuity issues for firms to consider in the short and medium and term.
- In July, we highlighted an interesting publication by the North American Association of Securities Administrators (NAASA) focusing on the need for firms to be prepared to deal with colleagues experiencing diminished capacity.
- In September, we discussed the CSA’s guidance on liquidity risk management for investment fund managers as well the discussion paper issued by Office of the Superintendent of Financial Institutions (OSFI) on core principles for operational resilience in a digital world.
C. Crypto Assets
Crypto-currency issues remained in the news in 2020.
- In January, we highlighted CSA Staff Notice 21-327 Guidance on the Application of Securities Legislation to Entities Facilitating the Trading of Crypto Assets.
- In February, we discussed U.S. Securities and Exchange Commission (SEC) Commissioner Hester Pierce’s informal proposal for a safe harbour for token offerings.
- In July, we wrote about the OSC’s approval of a settlement agreement with Coinsquare Ltd and its executives regarding market manipulation on a crypto-asset trading platform.
- In August, we highlighted the CSA’s first decision registering a crypto-asset trading platform under its regulatory sandbox program.
- In October, we discussed the settlement reached by Kik Interactive with the SEC regarding its unregistered token offering.
Regulators responded to the COVID-19 pandemic in impressive fashion by, among other things, extending regulatory deadlines, granting temporary relief from certain requirements, and scaling back certain initiatives. They also turned their attention to compliance and other risks affecting market participants that were specific to, or exacerbated by, the pandemic.
A number of the pandemic-related regulatory actions we wrote about in 2020 were temporary in scope, so we have highlighted below the pandemic-related articles we wrote in 2020 that continue to be relevant for market participants.
- In March, we wrote about factors for registered firms to consider in the short to medium term after they activated their business continuity plans.
- In April, we reported that the CSA had extended the deadline for implementing the CFRs concerning conflicts of interest and related relationship disclosure information (RDI) reporting requirements by six months to June 30, 2021.
- In May, we wrote about guidance provided by the Financial Services Regulatory Authority of Ontario (FSRA) to mortgage brokers and administrators regarding their disclosure and other obligations in respect of mortgage-based investments during significant market disruptions, such as the COVID-19 pandemic.
- In August, we wrote about the U.S. SEC’s risk alert on COVID-related compliance risks relevant to dealers and advisers as well as the task force established by the North American Securities Administrators Association (NASAA) to target COVID-19 fraudsters.
- The CSA and FSRA extended the expected deadline for implementation of changes to the regulatory framework for syndicated mortgages in April and again in August. As recently announced, the new framework is now expected to take effect on July 1, 2021.
- In October, we wrote about the CSA’s biennial report on their continuous disclosure review program, which included guidance for reporting issuers on how to disclose COVID-19 impacts.
E. Cyber-Security and Data Privacy
Cyber-security and data privacy continued to be hot topics, with the shift to remote work arrangements due to the pandemic presenting increased risks for inadvertent cyber-security failures as well as opportunities for hacking. AUM Law addressed these and other privacy and cyber-security issues in a number of articles, including the following:
- Cyber-Resilience: We touched on cyber-resilience in our March FAQ on business continuity planning and wrote a more detailed article in our April bulletin. In September, we reported on the Office of Superintendent of Financial Institutions’ consultation paper on operational resilience in a digital world, which includes recommendations regarding cyber-resilience, and in October, we reported that the international Financial Stability Board (FSB) had finalized its cyber incident recovery and response toolkit.
- Artificial Intelligence: In February we wrote about the consultation paper on the regulation of artificial intelligence published by the federal Office of the Privacy Commissioner (OPC), and in June we discussed the consultation paper published by the International Organization of Securities Commissions (IOSCO) regarding potential regulatory measures addressing asset managers’ and market intermediaries’ use of artificial intelligence.
- Privacy: In August, we reported that the Ontario government had launched a consultation to determine whether reforms to Ontario privacy legislation are warranted. See also our article in this bulletin regarding the Canadian government’s proposed Digital Charter Implementation Act, 2020.
F. Compliance Review and Enforcement Report Cards
The summary reports that regulatory staff publish about their oversight of market participants are valuable tools that can help firms learn more about recent and proposed regulatory initiatives, what staff consider to be problematic (or, conversely, beneficial) practices, and how staff interpret legislation and rules. In 2020, we wrote about:
- Alberta Securities Commission (ASC) staff’s review of issuers’ and registrants’ compliance with the offering memorandum exemption (January);
- Insights from staff of the OSC’s Compliance and Registrant Regulation (CRR) Branch regarding their compliance program, shared during a webinar hosted by the Portfolio Management Association of Canada (PMAC) in May;
- The annual enforcement report published by the Investment Industry Regulatory Organization of Canada (IIROC) in May;
- The CRR Branch’s annual Summary Report for Dealers, Advisers and Investment Fund Managers (September) – a ‘must read’;
- The CSA’s biennial report card on reporting issuers’ continuous disclosure practices (October); and
- The OSC’s Corporate Finance 2020 Annual Report (discussed later in this bulletin).
G. Cases and Enforcement Sweeps
In 2020, we wrote about a number of regulatory decisions that we think offer lessons for our readers.
- In January, we wrote about IIROC’s decision to fine a representative for his failure to follow through on red flags regarding a client account being handled under a power of attorney.
- In March, we discussed the IIROC decision to fine TD Waterhouse $4 million for deliberate non-compliance with relationship disclosure information requirements. In the same month, the Ontario Court of Appeal upheld Daniel Tiffin’s conviction for trading in promissory notes without registration and distributing securities without a prospectus, but overturned the lower court’s decision sentencing him to six months in jail. (PS: if you’re ever tempted to conclude that a particular instrument is not a security, first read Tiffin).
- In May, we highlighted the enforcement action initiated by OSC staff against a mutual funding dealing representative who agreed to serve as executor for a client’s will even though he was alleged to have known that he was a beneficiary under that will. We also discussed undertakings given by two issuers to the Alberta Securities Commission (ASC) regarding internal controls, training and other requirements to ensure compliance with prospectus exemptions.
- In June, we discussed a significant decision issued by the Federal Court of Appeal regarding the constitutionality and application of Canada’s Anti-Spam Legislation (CASL).
- in July, we wrote about the OSC’s approval of a settlement agreement with Coinsquare Ltd and its executives regarding market manipulation on a crypto-asset trading platform.
- In September, we reported that the Financial Institutions Regulatory Authority of Ontario (FSRA) had fined Fortress Real Developments for operating without a license.
- And, as mentioned in Section C above, we wrote about two crypto-asset-related enforcement decisions, concerning market manipulation on a crypto-asset trading platform (Coinsquare) and an unregistered token offering in the U.S. (Kik Interactive).
In 2020, we published a number of FAQs offering practical insights on various topics. Although many of them touched on issues arising out of the COVID-19 pandemic, we think the insights will continue to have relevance in other contexts.
- In January, we discussed whether an advising representative (AR) can act as the executor of an estate on behalf of a client.
- In February, we discussed things to watch out for when firms describe themselves and their representative on social media.
- In March, we outlined issues for registered firms to consider, in light of the COVID-19 pandemic, regarding their know-your-client (KYC) and suitability determination obligations.
- In April, we discussed the use of electronic signatures for subscription documents, investment management agreements and similar agreements with the firm’s clients.
- In May, we addressed the issue of whether an associate advising representative can work remotely or in a one-person branch office.
- In July, we described how a registered firm’s ultimate designated person (UDP) can certify the firm’s RAQ responses if they do not have online access to the survey.
- In July, we also discussed whether registered individuals (and applicants for registration) have to disclose offenses they have been charged with, if the matter hasn’t adjudicated yet. (This issue was also covered later in the year in an Advisor’s Edge interview with our Erez Blumberger).
In 2019, the CSA published its own FAQ guidance, this time focusing the client-focused reforms (CFRs). We discussed those FAQs in our September and October bulletins.
Although the COVID-19 pandemic delayed implementation of the revised oversight framework for syndicated mortgages to July 2021, the good folks at FSRA kept busy in 2020 with a number of initiatives, including:
- In August, FSRA published for comment an oversight framework, including proposed rules and guidance, regarding the use of financial planner and financial titles.
- Also in August, FSRA and the OSC published for comment proposed local rules and guidance regarding syndicated mortgages, while the CSA finalized its amendments for the syndicated mortgages regime.
- In September, FSRA published proposed service standard for comment.
- In October, FSRA published its 2021-22 Statement of Priorities for comment.
December 11, 2020
On October 6, the Government of Ontario introduced Bill 213 Better for People, Smarter for Business Act, 2020 (the Bill). If enacted as proposed, the Bill will eliminate director residency requirements for corporations established under the Ontario Business Corporations Act (OBCA) and introduce a more flexible regime for privately held OBCA corporations regarding written shareholder resolutions.
Director Residency: The Bill eliminates the requirement that at least 25% of the directors of an OBCA corporation be “resident Canadians”, as that term is defined in the OBCA. Dropping this residency requirement is consistent with the approach taken in the majority of provinces and territories and will provide Ontario corporations, both public and private, with greater flexibility in determining board composition. Corporations established under the Canada Business Corporations Act (CBCA), however, still must abide by the 25% director residency requirement.
Shareholder Resolutions: Currently, the written resolutions of an OBCA corporation’s shareholders must be signed by all of the shareholders entitled to vote on the resolution at a meeting of shareholders. If the corporation cannot obtain a shareholder’s signature, the only alternative is to call and hold a meeting for shareholders to vote on the resolution. If the Bill is enacted as proposed, the default approval threshold for an ordinary written resolution of the shareholders of a privately held OBCA corporation will drop from unanimity to a simple majority. This will enable corporations to avoid the cost and delay associated with holding a shareholders’ meeting. However, a higher approval threshold can be set in the corporation’s articles or in a unanimous shareholders’ agreement (USA). Note that if a written resolution of shareholders is passed by some but not all of the corporation’s shareholders, the corporation must provide written notice of the resolution, within ten days of the resolution being passed, to any voting shareholders who weren’t signatories to the written resolution. Importantly, no change is proposed to the requirement that written, special resolutions must still be signed by all shareholders, ensuring that minority shareholders have advance notice of any fundamental changes to the business.
Our Takeaways: The proposed changes offer more operational flexibility for Ontario corporations and make Ontario a more attractive jurisdiction for new businesses. Currently, the Bill is at the second reading stage. We will monitor its progress and update readers if and when it is passed. If the Bill is enacted, AUM Law can assist owners and managers of OBCA corporations in reviewing and, if appropriate, modifying their current articles, by-laws and USAs to take into account these amendments. In the meantime, please do not hesitate to contact us if you have any questions about the potential impact of these changes.
October 30, 2020
On August 20, the Canadian Securities Administrators (CSA) published final amendments (Amendments) to the business acquisition report (BAR) requirements for non-venture reporting issuers. Currently, such issuers must file a BAR after an acquisition if any of the significance tests set out in National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) exceeds 20%. To reduce the regulatory burden for issuers, the Amendments:
- Narrow the circumstances under which a BAR must be filed to transactions where at least two of those significance tests are triggered; and
- Raise the significance threshold to 30%.
The CSA expects the Amendments to take effect on November 18, 2020. If you have questions about the BAR requirements, please do not hesitate to contact us.
August 31, 2020
On May 20, the Canadian Securities Administrators (CSA) issued substantially harmonized blanket orders giving investment funds and other issuers temporary relief from certain regulatory and filing obligations. The conditions of relief are similar to the blanket orders issued in late March, except that the relief applies only to issuers with filing deadlines as noted below:
- Investment fund issuers: The OSC’s blanket order for investment funds (Funds Blanket Order) provides a 60-day extension for certain filing, delivery and prospectus renewal requirements normally required to be made between June 2 and September 30, 2020. If an investment fund wishes to rely on the Funds Blanket Order, it must, as soon as reasonably practicable and in advance the relevant delivery, filing or renewal deadline: (a) notify its regulator by email that it is relying upon the Funds Blanket Order and each requirement for which it is relying upon that order; and (b) post a statement on its public website or public website of its investment fund manager indicating that it is relying upon the Funds Blanket Order and listing each requirement for which it is relying on upon that order.
- Non-investment fund issuers have a 45-day extension for certain filing, delivery and base shelf prospectus renewal obligations normally due or required to be made between June 2 and August 31, 2020.
- Issuers can’t further extend pre-June 2 deadlines: An issuer cannot rely on the blanket relief to further extend a deadline occurring before on or before June 1.
On May 29, the CSA issued substantially harmonized blanket orders giving registrants and certain unregistered capital markets participants relief from certain financial statement and information delivery deadlines. The blanket orders provide a 60-day extension for periodic filings normally required to be made between June 2, 2020 and September 30, 2020 by registrants and, in Ontario, unregistered capital markets participants that rely upon certain registration exemptions such as unregistered investment fund managers (IFMs) and unregistered exempt international firms. The extension applies automatically, without any terms and conditions. Registrants and unregistered capital markets participants that have already used the prior relief to extend their deadline for any financial statement or information delivery requirements occurring on or before June 1, 2020, cannot use this relief to further extend that deadline.
Please contact us if you have any questions about the blanket orders described above. We can help you assess your options and, if necessary, engage with regulators on your behalf.
May 29, 2020
On May 26, the Alberta Securities Commission (ASC) published undertakings (Undertakings) from two issuers who agreed to certain controls, training and other requirements to ensure the issuers’ compliance with National Instrument 45-106 Prospectus Exemptions (NI 45-106). The Undertakings are a useful reminder for issuers and their advisers of securities regulators’ continued focus on non-compliance with the terms and conditions of prospectus exemptions in the exempt market.
Pursuant to the Undertakings, the issuers agreed, among other things, to designate several directors, officers or employees (Designated Persons) as responsible for determining whether investors meet the terms and conditions of NI 45-106. The Designated Persons will:
- Attend training on how to determine whether an investor meets the terms and conditions of the accredited investor (AI) and/or friends, family and business associates (FFBA) prospectus exemptions;
- Take reasonable steps to confirm that every investor meets the terms and conditions of the applicable exemption being relied upon at the time of distribution; and
- Make detailed written notes outlining the steps taken to determine whether an investor meets the terms and conditions of the applicable exemption, including the date and time of all relevant communications and any documents reviewed or relied upon.
If they haven’t already done so, issuers that access (or plan to access) the exempt market may wish to consider training and controls similar to those described above. AUM Law has substantial experience helping clients navigate the exempt market and we can help you, too. Subscribe to our publications to obtain a copy of our Exempt Market Roadmap and contact us to discuss your financing plans.