In May 2022, the Toronto Stock Exchange (“TSX”) issued Staff Notice 2022-0001 (the “Staff Notice”) on normal course issuer bids (“NCIBs”), “providing guidance on Sections 628 and 629 of the TSX Company Manual … for frequently asked questions in respect of normal course issuer bids”. Of the 35 FAQs in the Staff Notice, one question in particular has important implications for listed issuers carrying out NCIBs on TSX.
On January 13, 2022, Fasken and Laurel Hill Advisory Group (“Laurel Hill”) hosted a webinar on environmental, social and governance (“ESG”) considerations, with a focus on the climate change aspects of ESG that will be relevant to public companies. The webinar’s panelists were Cheryl Gasparet of ATS Automation Tooling Systems Inc. (“ATS”), Bill Zawada of Laurel Hill, Tanneke Heersche and Kai Alderson of Fasken and was moderated by Gordon Raman of Fasken.
For a further discussion of these items, please see the Fasken Proxy Season Preview 2022 webinar to watch the webinar and the Timely Disclosure: Proxy Season Review 2022 for a write-up on recent developments in corporate governance.
On January 13, 2022, TMX Group Ltd. (Toronto Stock Exchange (“TSX”) and TSX Venture Exchange (“TSXV”)), Laurel Hill Advisory Group (“Laurel Hill”) and Fasken hosted a conversation on disclosure and regulatory considerations for issuers leading into the 2022 proxy season. The panel discussed six discrete areas of recent developments that will be relevant for public companies:
- diversity disclosure;
- an update on proxy voting guidelines;
- an update from TSX and TSXV;
- continuous disclosure updates;
- corporate law amendments; and
- capital raising.
For a further discussion of these items, please see the Fasken Proxy Season Preview 2022 webinar.
The long-awaited amendments to reduce the regulatory burden on investment funds were published by the Canadian securities administrators (CSA) in final form on October 7, 2021 and take effect on January 5, 2022. The amendments mostly relate to housekeeping matters that reduce very little regulatory burden, while other aspects might actually increase regulatory burden in the short term. We are disappointed that the CSA did not introduce a number of additional changes that would have had a far greater impact on reducing the regulatory burden on industry participants.
Last week, the Canadian Securities Administrators (“CSA”) and the Investment Industry Regulatory Organization of Canada (“IIROC”) jointly published their third staff notice this year targeting crypto-trading platforms (“CTPs”) that are registered or have applied for registration as securities dealers. This staff notice 21-330 (the “Notice 21-330”) provides guidance on the types of advertising activities, social media content, and marketing strategies by CTPs that may breach securities requirement.
On August 3, 2021, the Canadian Securities Administrators (CSA) announced their plan to “consolidate the functions” of the Investment Industry Regulatory Organization of Canada (IIROC) and the Mutual Fund Dealers Association of Canada (MFDA). The consolidation will create a new single self-regulatory organization (New SRO) with the goal of providing enhanced regulation of the investment industry. The CSA will also consolidate the two existing investor protection funds into a single protection fund independent from the New SRO. The CSA plans to implement the New SRO in two phases, described below.
Continue Reading CSA to Combine IIROC and MFDA in a Single Self-Regulatory Organization
The Canadian Securities Administrators (CSA) published for a 90 day comment period proposed amendments to National Instrument 45-106 Prospectus Exemptions and CSA Staff Notice (NI 45-106), National Instrument 13-101 System for Electronic Document Analysis and Retrieval (NI 13-101) and National Instrument 45-102 Resale of Securities (NI 45-102) to introduce a new capital raising exemption for reporting issuers that are listed on a Canadian stock exchange (Listed Issuer Financing Exemption).
Lack of transparency in calculations, insufficient context and significant variations by issuer and industry, a “stronger tool was needed to take appropriate regulatory action”, said the Canadian Securities Administrators (CSA) when they first presented their new set of rules to regulate disclosure of non-GAAP financial metrics. That was in 2018.
Many comment letters and three versions later, we now have the final version of the National Instrument 52-112 Non-GAAP and Other Financial Measures Disclosure (the Instrument).
Unlike the existing guidance on non-GAAP financial measures (Staff Notice 52-306), the new Instrument has the force of law. This means that the “adjusted earnings”, “adjusted EBITDA”, “free cash flow”, “pro forma earnings” and other financial measures of this world will soon be the target of much scrutiny, because the new Instrument, while short, is accompanied by a 20-pages long Companion Policy, which clearly spells out the intention of the legislators. Continue Reading Fill in the Non-GAAP: New Disclosure Requirements to Become Mandatory in August 2021
On May 20, 2021, the Canadian Securities Administrators (CSA) announced  a 120-day comment period for proposed amendments to National Instrument 51-102 Continuous Disclosure Obligations (“NI 51-102”) under the unwieldy title “Proposed Amendments to National Instrument 51-102 Continuous Disclosure Obligations and Other Amendments and Changes Relating to Annual and Interim Filings of Non-Investment Fund Reporting Issuers and Seeking Feedback on a Proposed Framework for Semi-Annual Reporting – Venture Issuers on a Voluntary Basis”. The proposed amendments and request for comments follow CSA Consultation Paper 51-404 Considerations for Reducing Regulatory Burden for Non-Investment Fund Reporting Issuers issued in April 2017.
The proposed amendments to NI 51-102 include combining an issuer’s annual financial statements, management’s discussion and analysis (MD&A) and annual information form into one annual reporting document called an “annual disclosure statement”, and combining interim financial statements and MD&A into an “interim disclosure statement” for quarterly reporting purposes, all as set out in proposed Part 3A of NI 51-102. According to the CSA, subject to the comment process and required regulatory approvals, the final amendments to NI 51-102 are expected to become effective on December 15, 2023. Continue Reading For Non-TSX Companies, Twice a Year May be Enough
On March 29, 2021, the Canadian Securities Administrators (“CSA”) and the Investment Industry Regulatory Organization of Canada (“IIROC”) jointly published Staff Notice 21-329 Guidance for Crypto-Asset Trading Platforms: Compliance with Regulatory Requirements (“Notice 21-329”). Notice 21-329 provides guidance on how securities legislation will be applied to crypto-asset trading platforms (“CTPs”) and in doing so expands on the regulatory guidance previously set out in CSA Staff Notice 21-327 and joint CSA/IIROC Consultation Paper 21-402.
On the same day, the Ontario Securities Commission (“OSC”) issued a news release imposing a deadline of April 19, 2021 for CTPs to contact OSC regarding bringing their operations into compliance. The OSC intends to take enforcement actions towards those CTPs who fails to do so by the deadline, including CTPs located outside of Ontario that allow access to Ontarians. Continue Reading CSA and IIROC publish updated guidance on cryptocurrency regulatory issues; OSC issues deadline for cryptocurrency companies to begin regulatory compliance efforts