On August 12, the Office of Compliance Inspections and Examinations at the U.S. Securities and Exchange Commission (SEC) published a Risk Alert outlining compliance risk considerations for broker-dealers and investment advisors. Although the Risk Alert is most relevant for firms subject to the SEC’s jurisdiction, we think it is a helpful compilation of pandemic-related compliance and supervisory risks for Canadian firms to consider, too, and a possible indicator of the kinds of themes that Canadian securities regulators might also decide to pursue in compliance audits in the coming year.
August 31, 2020
On August 19, the North American Securities Administrators Association (NASAA) reported on the activities of its COVID-19 Enforcement Task Force (Task Force), which has initiated actions to disrupt 200 schemes intended to profit fraudulently from the pandemic. Modelled on NASAA’s 2018 Operation Cryptosweep, the Task Force includes investigators from 44 jurisdictions in Canada, Mexico and the United States. Canadian Task Force members accounted for more than one quarter of the actions taken to date.
According to the Task Force, many of the fraudulent offerings share characteristics, such as preying on fear while promoting safety amid uncertainty, promising monthly payments to appeal to cash-strapped investors, and/or involving cryptocurrency-related investment products, foreign exchange, and/or other products unfamiliar to inexperienced investors. We think the Task Force’s work may of interest to participants in Canadian capital markets, since it shows how North American securities regulators can act swiftly, in a coordinated way, to address emerging risks.
August 31, 2020
In our February 2020 bulletin, we reported on proposed National Instrument 45-110 Start-up Crowdfunding and Registration Exemptions (NI 45-110), which is intended to create a nationally harmonized regime. The comment period for that proposal ended on July 13. On July 30, the Ontario Securities Commission (OSC) adopted an interim class order (Order) that provides prospectus and registration exemptions for start-up crowdfunding that are substantially similar to the local exemptions already in place in Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Québec, and Saskatchewan (collectively, the Crowdfunding Orders).
In the news release accompanying the Order, the Canadian Securities Administrators (CSA) noted that start-ups and other small businesses are facing significant funding challenges due to COVID-19 and might benefit from more unified regulatory requirements to expand their access to capital. The Order will remain in place until the earlier of the date that NI 45-110 is adopted or January 31, 2022. If you wish to learn more about the Crowdfunding Orders and their potential usefulness for your business, please contact us.
July 31, 2020
On May 30, the Canadian Securities Administrators (CSA) announced that most member regulators including the Ontario Securities Commission (Participating Jurisdictions) had issued temporary blanket relief (Temporary Relief) from certain financial statement and information delivery requirements for periodic filings normally required to be made between June 2, 2020 and September 30, 2020. The blanket relief extends the deadlines for 60 days. It applies to registrants and, in Ontario, unregistered capital markets participants (such as unregistered investment fund managers and unregistered, exempt international firms) that rely upon certain registration exemptions. The conditions of the Temporary Relief are substantially the same as the temporary relief granted on March 23 (Prior Relief), as we described in our March 2020 article on this topic. Firms cannot rely on the Temporary Relief to extend any deadline previously extended under the Prior Relief.
Separately, the Manitoba Securities Commission and Québec Autorité des Marchés Financiers (AMF) issued temporary blanket relief from certain financial statement and information delivery requirements for registrants whose principal regulator is one of the participating jurisdictions.
Please contact us if you have any questions about the Temporary Relief, other requirements and temporary exemptions, and/or other operational changes adopted by CSA members regarding COVID-19 that may affect your business. We can help you assess your options and, if necessary, engage with regulators on your behalf.
June 30, 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
During the Spring Regulatory and Compliance Webinar organized by the Portfolio Management Association of Canada (PMAC) on May 27, a member of the Compliance and Registrant Regulation Branch (Branch) at the Ontario Securities Commission (OSC) updated attendees on the Branch’s programs and what registrants can expect in the coming months. We think that our readers will be interested in the following:
- Compliance audits re-booted:The Branch is re-starting regulatory compliance audits this week. They will be conducted remotely, and firms can expect to have more time (e.g. 45 days as opposed to 30 days) to respond to deficiencies.
- Privacy and cyber security risks arising from the shift to remote work during the pandemic will be an area of regulatory focus in compliance audits. (See our March 2020 and April 2020 bulletin articles, which discussed these risks.) Among other things, if firms haven’t already done so, they should consider arranging for secure document removal from employees’ homes and destruction of files as appropriate.
- Working capital: Registered firms should stay on top of their working capital. If there are potential issues resulting from COVID-19, firms should engage proactively with their regulators.
- Are you registered everywhere you need to be? Branch staff have observed an uptick in registrable activity by registrants in jurisdictions where the firms and relevant individuals are not registered. OSC staff will report such activity to the local regulator.
- Some CCO reports need improvement: Branch staff have observed that some chief compliance officers (CCOs) are not complying with the requirement in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Requirements to provide the registrant’s board of directors with an annual compliance report (CCO Report) or are preparing only a cursory report. Branch staff expect all firms, even one-person firms, to produce comprehensive CCO Reports every year describing how their firms are meeting their securities law obligations.
- Registration of client relationship managers: We expect the OSC to announce very soon a protocol for registering client relationship managers as Associate Advising Representatives subject to certain terms and conditions.
Post-COVID work arrangements: Although the topic did not come up during the PMAC conference, it is our understanding that, to date, registered firms have not been expected to register any remote work locations (such as home offices) that have been set up in response to the authorities’ COVID 19-related restrictions or recommendations for workplaces. As COVID-19 goes on for an extended period, as well as Post-COVID-19, if any of a firm’s individuals make working from home, or another location that isn’t already approved as a branch office, more permanent, the firm should consider whether it needs to register new branch offices.
As the OSC moves toward a “business almost as usual” state, AUM Law stands ready to help registered firms meet their existing obligations and address emerging risks and evolving regulatory expectations. For example, we can conduct focused compliance risk assessments in areas of interest to the regulators and help draft (or improve) your CCO Report. We are also helping firms and individuals with registration applications, and we can help you, too. Please do not hesitate to contact us.
Correction: The paragraph on Post-COVID work arrangements reflects our understanding of expectations for registered firms on this topic. However, in an earlier version of this article (published on May 29), we incorrectly attributed those views to the OSC representative who spoke at the webinar.
June 9, 2020
On May 12, the Financial Services Regulatory Authority of Ontario (FSRA) issued guidance (Guidance) for mortgage administrators (Administrators) and mortgage brokers (Brokers) regarding their disclosure and other obligations in respect of mortgage-based investments during significant market disruptions, such as the COVID-19 pandemic.
The first notice, Mortgage Administrators – Responses to Market Disruptions (Administrator Notice), sets out FSRA’s interpretation of Administrators’ obligations under Mortgage Brokerages, Lenders and Administrators Act 2006 (MBLAA) to protect investors/lenders in mortgages/mortgage investments during significant market disruptions. For example:
- Notify investors/lenders:The Administrator must promptly notify investors/lenders of a borrower defaulting under the mortgage or any significant change to circumstances affecting a mortgage. If an investor/lender is a mortgage investment corporation (MIC) or other mortgage investment entity (MIE), the Administrator must notify that entity. The Administrator Notice includes examples of events that trigger this disclosure requirement, such as potential forbearance, a material delay in the development of a project being funded by the mortgage, or a change in the ability of investors or lenders to redeem prior to the mortgage investment’s maturity. The Administrator Notice also describes good practices that an Administrator should follow to keep current on the financial status of the mortgages and underlying properties in the portfolio and to communicate effectively with investors/lenders.
- Adhere to administration agreements:During the COVID-19 pandemic, more borrowers are requesting modifications to their mortgage terms. Administrators should review their administration agreements to confirm the scope of any discretion that they have to modify mortgage terms and they must adhere to those terms. They also should carefully document any exercise of such discretion. If the agreement does not authorize them to modify mortgage terms, an administrator faced with a request from the borrower to modify terms must review the requirements under the MBLAA and related regulations regarding the notice to be provided to the investors / lenders and obtain approval for the modifications.
The second notice, Mortgage Brokerage Disclosure and Suitability Assessments for Non-Qualified Syndicated Mortgage Investments (SMIs) – Responses to Market Disruptions (Broker Notice), discusses Brokers’ obligations to:
- Disclose material risks arising from the current market disruption to investors in non-qualified syndicated mortgage investments (NQSMIs); and
- Consider the current market disruption when assessing the suitability of an NQSMI to an investor.
The Broker Notice includes a non-exhaustive list of risks associated with a market disruption that FSRA considers material. These are similar to the “significant changes in circumstances” outlined in the Administrator Notice. The Broker Notice also emphasizes that Brokers must consider whether any property appraisals prepared for syndicated mortgage investments (SMIs) before the market disruption reflect the property’s market or current value and make investors/lenders aware of the risks of relying on any appraisal that either predates the market disruption or does not consider the market disruption’s impact on the property valuation. Also, if the appraisal contains any limitation statements, the Broker must bring those statements to the attention of the investor/lender. The Broker Guidance also states that Brokers must take into account the potential impacts of a market disruption on an SMI, its probable future performance, and the investor/lender’s unique circumstances when they assess the suitability of an SMI for an investor-lender.
Although not directly applicable to exempt market dealers (EMDs), the Guidance also may be useful to firms conducting suitability assessments with respect to MIE securities. Likewise, firms that operate MIEs might want to consider the Guidance when assessing whether to update the descriptions in their offering documents regardig risk factors, descriptions of the MIE’s mortgage portfolio, and/or changes to redemption rights.
AUM Law can help you assess the impact of the Guidance on your business, advise you on your disclosure obligations and help you prepare the required disclosures, as well as update your policies and procedures to incorporate these publications. Please do not hesitate to contact us for assistance.
May 29, 2020
In March, the Ontario Securities Commission (OSC) announced that due to COVID-19, it was postponing the 2020 Risk Assessment Questionnaire (RAQ) cycle until further notice. On May 28, chief compliance officers (CCOs) of registrants were notified that they will receive the RAQ on June 11, with responses due on August 6. The 2020 RAQ will ask for information for the periods ending December 31, 2018 and December 31, 2019.
In our January 2020 bulletin, we highlighted a number of changes that the OSC is introducing for the 2020 RAQ, including pre-population of the questionnaire with some of the answers from firms’ 2018 RAQ responses and data security enhancements.
But wait, there’s more: Because the 2020 RAQ will not cover the period when registrants were dealing with COVID-19, the OSC also will send out a short survey (Survey) on July 9, 2020 to gather information from January 1 to June 30, 2020 regarding COVID-19’s impact on each registered firm. The Survey will be sent to firms domiciled in Ontario, as well as to some firms where the OSC is not the principal regulator because the OSC is collecting the information for those other regulators. The deadline for completion also will be August 6, 2020.
We encourage firms to re-start their planning for this exercise now, if they haven’t already done so, and to schedule time with key individuals including the ultimate designated person (UDP) to review and sign off on the completed questionnaire. AUM Law has had extensive experience helping firms prepare their RAQs. If you would like us to help you complete this year’s RAQ and the Survey, please contact us for a fixed-fee quote.
May 29, 2020
National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103) prohibits an associate advising representative (AAR) from advising on securities unless that advice has been pre-approved by an advising representative (AR) designated by the firm to review that AAR’s advice.
There is no requirement for an AAR and the AR reviewing that AAR’s advice to work “side by side” in the same office. However, there are potentially greater compliance risks associated with having them work from separate locations, such as in the current environment where many people are working remotely from home. For example, the AR and AAR might be working somewhat different hours as they juggle professional and family responsibilities, and clients concerned about market volatility might be calling them at all hours for reassurance. These factors can make it more challenging for the AR to pre-clear the AAR’s advice to the client. Maintaining organized client files including documentation of the AR’s pre-approval of the AAR’s advice can also be more difficult when people are accessing files remotely.
Nevertheless, it is critical for the firm to have and maintain adequate controls and supervision to ensure compliance with the pre-clearance rule described above. The firm also should document how it has considered and addressed the risks that arise from the AAR and AR working from separate locations, as well as documenting on an ongoing basis the AR’s review and pre-approval of any advice to be provided by the AAR.
The COVID-19 pandemic continues to present regulatory challenges for firms as they operate in this “new normal”. AUM Law is helping clients assess whether their existing policies, procedures and controls address the emerging risks and we can help you too. Please do not hesitate to contact us.
May 29, 2020
On May 27, the Portfolio Management Association of Canada (PMAC) hosted a virtual regulatory and compliance webcast. AUM Law’s Kevin Cohen and Chris von Boetticher participated as panellists in a session for small to mid-sized asset managers to discuss the impact of COVID-19 and recent market turbulence on compliance, client service, disclosure and more.
As we discussed in our October 2019 special bulletin, the Canadian Securities Administrators (CSA) have finalized their client-focused reforms (CFRs) to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103). The CSA initially set an implementation deadline of December 31, 2020 for the conflict of interest provisions and related relationship disclosure information (RDI) requirements in the CFRs.
On April 16, CSA members announced that they are shifting that implementation deadline to June 30, 2021. Registrants will have to comply in the interim period with the comparable provisions in NI 31-103, as they read on December 20, 2020.
Although we expect registrants to welcome this extension of the deadline, we encourage firms to continue making steady progress toward implementation of the new requirements. In the current environment, where so many registrants and their service providers have their employees working remotely and are dealing with emerging risks resulting from the COVID-19 pandemic, projects like these may take longer than expected to complete. AUM Law is already helping many of our clients systematically prepare for the new regime and we can help you, too. Please do not hesitate to contact us.
April 30, 2020
As we discussed in our March 2019 bulletin and December 2019 bulletin, the Canadian Securities Administrators (CSA) have proposed changes to the securities regulatory framework affecting participants in syndicated mortgage markets. Last December, the CSA announced that they expected the proposed changes to take effect in July 2020. On April 16, 2020, the CSA disclosed that in light of COVID-19, they now expect the amendments to take effect on January 1, 2021. They haven’t published final rules yet, stating only that additional details will be published later this year.
As well, on April 16 the Financial Services Regulatory Authority of Ontario (FSRA) and the Ontario Securities Commission (OSC) announced a corresponding delay in the transfer of regulatory oversight over non-qualifying syndicated mortgages from FSRA to the OSC. The regulators now expect the transfer to take effect on January 1, 2021.
AUM Law is assisting clients affected by the evolving regulatory framework for mortgage investments. Please do not hesitate to contact us if you have any questions about how the proposed changes and/or delays in implementation timelines will affect your business.
April 30, 2020
As we mentioned in last month’s article on business continuity plans (BCPs), the COVID-19 pandemic has brought with it heightened cyber-security risks. Now more than ever, registered firms need to maintain robust cyber-security policies and procedures, monitor employees’ compliance with them, and adapt their policies and procedures to address emerging or changing risks. Recently, financial sector regulators have published warnings and guidance for firms about how to address cyber-security risks. This article highlights several publications that we think our readers will find useful.
- IIROC Offers Practical Tips: On April 21, the Investment Industry Regulatory Organization of Canada (IIROC) published a notice with practical tips for advisory firms and their employees regarding the kinds of cyber-security risks they face while operating remotely during the COVID-19 pandemic. Among other things, it describes common, COVID-19 relate phishing and social engineering attacks that some firms are observing.
- FSB Consults on Cyber Incident Response and Recovery (CIRR): On April 20, the Financial Stability Board (FSB) published a consultation paper outlining 46 effective CIRR practices for financial institutions to consider. Although the FSB tends to focus more on systemically important financial institutions, we think that all capital markets participants will find it worthwhile to skim the consultation paper. The recommended CIRR practices relate to such topics as how firms organize and manage CIRR, how they ensure effective response, mitigation and recovery activities, how to coordinate and communicate with stakeholders, and how to establish processes to learn from past cyber incidents. In addition to requesting feedback on the specific practices described in its consultation paper, the FSB wants to know what firms are learning from their response to the COVID-19 pandemic. Comments are requested by July 20.
- Updated Baseline Controls for Small and Medium-sized Enterprises (SMEs): The Canadian Centre for Cyber Security (Centre), established by the federal government, updated its Baseline Controls for Small and Medium Organizations (Baseline Controls) earlier this year. Noting that some of national and global cyber-security standards likely are beyond the financial and human resource means of most SMEs, the Centre developed the Baseline Controls with the 80/20 rule (i.e. that 80% of the benefit can be achieved through 20% of the effort) in mind. We recommend that firms read Annex A, which summarizes the Baseline Controls.
Given the regulators’ growing concerns about pandemic-related cyber-threats, we believe that cyber-security is likely to become a focus area for securities regulators in compliance reviews. AUM Law can help you assess and enhance your cybersecurity policies and procedures and conduct training in this area for your employees. Please contact us to find out more about our services in this area.
April 30, 2020
April 15, the Compliance and Registrant Regulation (CRR) Branch at the Ontario Securities Commission (OSC) emailed registrants to indicate that it had enhanced and clarified its processes to lift close supervision and strict supervision terms and conditions (T&Cs) imposed on individual registrants at firms. This initiative is part of the OSC’s regulatory burden reduction program. Sponsoring firms will be able to submit requests to remove such T&Cs through an online portal. The OSC has published guidance describing the process and indicating the types of information a firm should submit to support a request for expedited review.
On the same day, the CRR Branch also released guidance on its process to reactivate the registration of an individual coming off a suspension imposed by the Mutual Fund Dealers Association (MFDA). CRR staff indicated that, provided certain criteria are met, they will apply an expedited review process that does not re-examine the facts giving rise to the MFDA’s disciplinary action and that aims to process the request within five business days of its receipt.
AUM Law has substantial experience handling individual applications for registration (including reactivations) and engaging with regulators with respect to T&Cs that have been or may be imposed on individuals. We can help you prepare submissions to have T&Cs lifted or re-activate registration. Please contact us to discuss how we can help.
April 30, 2020
With so many registered firms operating remotely and avoiding in-person meetings with potential clients wherever possible during the COVID-19 pandemic, the question has arisen again whether electronic signatures (e-signatures) are acceptable for various agreements with the firm’s clients. The answer depends on several factors:
- What the law says: In Canada, all the provinces and territories except Québec have adopted legislation based on the Uniform Electronic Commerce Act (UCEA), which provides, in effect, that a contract, record or signature will not be unenforceable solely because it is electronic. (Québec’s legislation incorporates many of the same principles but doesn’t follow the UCEA model.) There are some provincial variations in the legislation, with some provinces having stricter requirements regarding, for example, the type of e-signature that is acceptable. For contracts governed by Ontario law, the Electronic Commerce Act (Ontario) (OECA) provides that an e-signature is acceptable if it is reliable for purposes of identifying the person signing the document and the association of the e-signature with the relevant document is reliable.
- What the parties to the contract agree to: The UCEA and similar legislation facilitate electronic contracts and e-signatures but do not require them. The parties to a contract can agree to a different arrangement. Therefore, registrants that, to date, haven’t been using e-signatures in particular contracts should check that the contract in question provides for the contract to be in electronic form and signed with e-signatures.
- The contract’s subject matter: Certain categories of contracts, such as negotiable instruments, some types of real estate agreements and some types of powers of attorney, may require a “wet ink” signature (although some of these restrictions have been relaxed during the pandemic). In Ontario, there is no prohibition on subscription agreements, investment management agreements and similar client relationship agreements using e-signatures.
- What the firm’s articles, by-laws, policies and procedures say: The registered firm should confirm that its articles, by-laws, policies and procedures do not restrict the use of e-signatures and determine if any particular form of e-signature is required. Although such restrictions are rare, it is important to verify that neither the registered firm nor any client that is an entity is subject to any restrictions on the proposed form of e-signature to be used, especially when a change in firm practice is being considered.
Of course, firms should maintain fully signed and complete electronic contracts just as they would for paper contracts with wet signatures, and they should have a contract execution policy that expressly provides for electronic contracts and e-signatures. It’s also especially important these days, when so many people are working remotely, to organize the firm’s executed contracts so that they can be easily found.
If you have any questions about whether an e-signature is acceptable for a particular type of contract or wish to update your policies and procedures to provide for electronic contracts and e-signatures, please do not hesitate to contact us.
April 30, 2020