Interpretation
(1) In this Act,
“adviser” means a person or company engaging in or holding himself, herself or itself out as engaging in the business of advising others as to the investing in or the buying or selling of securities; (“conseiller”)
“alternative trading system” means a marketplace that,
is not a recognized quotation and trade reporting system or a recognized exchange,
does not require an issuer to enter into an agreement to have its securities traded on the marketplace,
does not provide, directly or through one or more subscribers, a guarantee of a two-sided market for a security or derivative on a continuous or reasonably continuous basis,
does not set requirements governing the conduct of subscribers, other than conduct in respect of the trading by those subscribers on the marketplace, and
does not discipline subscribers other than by exclusion from participation in the marketplace; (“système de négociation parallèle”)
“associate”, where used to indicate a relationship with any person or company, means,
any company of which such person or company beneficially owns, directly or indirectly, voting securities carrying more than 10 per cent of the voting rights attached to all voting securities of the company for the time being outstanding,
[Repealed]
any partner of that person or company,
any trust or estate in which such person or company has a substantial beneficial interest or as to which such person or company serves as trustee or in a similar capacity,
any relative of that person who resides in the same home as that person,
any person who resides in the same home as that person and to whom that person is married or with whom that person is living in a conjugal relationship outside marriage, or
any relative of a person mentioned in clause (e) who has the same home as that person; (“personne qui a un lien”)
“benchmark” means a price, estimate, rate, index or value that is,
determined, from time to time, by reference to an assessment of one or more underlying interests,
made available to the public, either free of charge or on payment, and
used for reference for any purpose, including,
determining the interest payable, or other sums that are due, under a contract, derivative, instrument or security,
determining the value of a contract, derivative, instrument or security or the price at which it may be traded,
measuring the performance of a contract, derivative, investment fund, instrument or security, or
any other use by an investment fund; (“indice de référence”)
“benchmark administrator” means a person or company that administers a benchmark; (“administrateur d’indice de référence”)
“benchmark contributor” means a person or company that engages or participates in the provision of information for use by a benchmark administrator for the purpose of determining a benchmark, including a person or company subject to a decision under section 24.2; (“contributeur à un indice de référence”)
“benchmark user” means a person or company that, in relation to a contract, derivative, investment fund, instrument or security, uses a benchmark; (“utilisateur d’indice de référence”)
“Capital Markets Tribunal” means the Capital Markets Tribunal established under section 25 of the Securities Commission Act, 2021; (“Tribunal des marchés financiers”)
“Chief Adjudicator” means the Chief Adjudicator of the Capital Markets Tribunal; (“arbitre en chef”)
“chief compliance officer” means, in respect of a registrant that is a registered dealer, registered adviser or registered investment fund manager, an individual designated by the registrant,
to establish and maintain policies and procedures to assess, monitor and report on the registrant’s compliance with Ontario securities law, and
to fulfill such other compliance functions as may be prescribed by the regulations; (“chef de la conformité”)
“clearing agency” means,
with respect to securities, a person or company that,
acts as an intermediary in paying funds or delivering securities, or both, in connection with trades and other transactions in securities,
provides centralized facilities for the clearing of trades and other transactions in securities, including facilities for comparing data respecting the terms of settlement of a trade or transaction, or
provides centralized facilities as a depository of securities,
but does not include,
the Canadian Payments Association or its successors,
an exchange or a quotation and trade reporting system,
a registered dealer, or
a bank, trust company, loan corporation, insurance company, treasury branch or credit union that, in the normal course of its authorized business in Canada, engages in an activity described in subclause (a) (i), but does not also engage in an activity described in subclause (a) (ii) or (iii), and
with respect to derivatives, a person or company that provides centralized facilities for the clearing and settlement of trades in derivatives that, with respect to a contract, instrument or transaction,
enables each party to the contract, instrument or transaction to substitute, through novation or otherwise, the credit of the clearing agency for the credit of the parties,
arranges or provides, on a multilateral basis, for the settlement or netting of obligations resulting from such contracts, instruments or transactions executed by participants in the clearing agency, or
otherwise provides clearing services or arrangements that mutualize or transfer among participants in the clearing agency the credit risk arising from such contracts, instruments or transactions executed by the participants,
but does not include a person or company solely because the person or company arranges or provides for,
settlement, netting or novation of obligations resulting from agreements, contracts or transactions on a bilateral basis and without a central counterparty,
settlement or netting of cash payments through the Automated Clearing Settlement System or the Large Value Transfer System, or
settlement, netting or novation of obligations resulting from a sale of a commodity in a transaction in the spot market; (“agence de compensation”)
“Commission” means the Ontario Securities Commission continued under the Securities Commission Act, 2021; (“Commission”)
“company” means any corporation, incorporated association, incorporated syndicate or other incorporated organization; (“compagnie”)
“contract” includes a trust agreement, declaration of trust or other similar instrument; (“contrat”)
“contractual plan” means any contract or other arrangement for the purchase of shares or units of a mutual fund by payments over a specified period or by a specified number of payments where the amount deducted from any one of the payments as sales charges is larger than the amount that would have been deducted from such payment for sales charges if deductions had been made from each payment at a constant rate for the duration of the plan; (“plan à versements périodiques”)
“control person” means,
a person or company who holds a sufficient number of the voting rights attached to all outstanding voting securities of an issuer to affect materially the control of the issuer, and, if a person or company holds more than 20 per cent of the voting rights attached to all outstanding voting securities of an issuer, the person or company is deemed, in the absence of evidence to the contrary, to hold a sufficient number of the voting rights to affect materially the control of the issuer, or
each person or company in a combination of persons or companies, acting in concert by virtue of an agreement, arrangement, commitment or understanding, which holds in total a sufficient number of the voting rights attached to all outstanding voting securities of an issuer to affect materially the control of the issuer, and, if a combination of persons or companies holds more than 20 per cent of the voting rights attached to all outstanding voting securities of an issuer, the combination of persons or companies is deemed, in the absence of evidence to the contrary, to hold a sufficient number of the voting rights to affect materially the control of the issuer; (“personne qui a le contrôle”)
“credit rating” means an assessment that is publicly disclosed or distributed by subscription concerning the creditworthiness of an issuer,
as an entity, or
with respect to specific securities or a specific pool of securities or assets; (“notation”)
“credit rating organization” means a person or company that issues credit ratings; (“organisme de notation”)
“dealer” means, except for the purposes described in subsection (1.2), a person or company engaging in or holding himself, herself or itself out as engaging in the business of trading in securities as principal or agent; (“courtier”)
“debt security” means a bond, debenture, note or similar instrument representing indebtedness, whether secured or unsecured; (“titre de créance”)
“decision” means, in respect of a decision of the Commission, the Tribunal or a Director, a direction, decision, order, ruling or other requirement made under a power or right conferred by this Act or the regulations; (“décision”)
“derivative” means an option, swap, futures contract, forward contract or other financial or commodity contract or instrument whose market price, value, delivery obligations, payment obligations or settlement obligations are derived from, referenced to or based on an underlying interest (including a value, price, rate, variable, index, event, probability or thing), but does not include,
a commodity futures contract as defined in subsection 1 (1) of the Commodity Futures Act,
a commodity futures option as defined in subsection 1 (1) of the Commodity Futures Act,
a contract or instrument that, by reason of an order of the Commission under subsection (10), is not a derivative, or
a contract or instrument in a class of contracts or instruments prescribed by the regulations not to be derivatives; (“produit dérivé”)
“designated benchmark” means a benchmark that is designated by the Commission under section 24.1; (“indice de référence désigné”)
“designated benchmark administrator” means a benchmark administrator that is designated by the Commission under section 24.1 in respect of a designated benchmark; (“administrateur d’indice de référence désigné”)
“designated credit rating organization” means a credit rating organization that is designated by the Commission under Part IX; (“organisme de notation désigné”)
“designated derivative” means a derivative,
that, by reason of an order of the Commission under subsection (11), is a designated derivative, or
that belongs to a class of derivatives prescribed by the regulations; (“produit dérivé désigné”)
“designated information processor” means an information processor that is designated by the Commission under section 21.2.3; (“agence désignée de traitement de l’information”)
“designated trade repository” means a trade repository that is designated by the Commission under section 21.2.2; (“répertoire des opérations désigné”)
“Director” means the Chief Executive Officer of the Commission, the Executive Director of the Commission, a Director or Deputy Director of the Commission or a person employed by the Commission in a position designated by the Chief Executive Officer of the Commission for the purpose of this definition; (“directeur”)
“director” means a director of a company or an individual performing a similar function or occupying a similar position for any person; (“administrateur”)
“distribution”, where used in relation to trading in securities, means,
a trade in securities of an issuer that have not been previously issued,
a trade by or on behalf of an issuer in previously issued securities of that issuer that have been redeemed or purchased by or donated to that issuer,
a trade in previously issued securities of an issuer from the holdings of any control person,
a trade by or on behalf of an underwriter in securities which were acquired by that underwriter, acting as underwriter, prior to the 15th day of September, 1979 if those securities continued on that date to be owned by or for that underwriter, so acting,
a trade by or on behalf of an underwriter in securities which were acquired by that underwriter, acting as underwriter, within eighteen months after the 15th day of September, 1979, if the trade took place during that eighteen months, and
any trade that is a distribution under the regulations,
and also includes any transaction or series of transactions involving a purchase and sale or a repurchase and resale in the course of or incidental to a distribution and “distribute”, “distributed” and “distributing” have a corresponding meaning; (“placement”, “placer”, “placé”)
“distribution company” means a person or company distributing securities under a distribution contract; (“compagnie de placement”)
“distribution contract” means a contract between an investment fund or its trustees or other legal representative and a person or company under which that person or company is granted the right to purchase the shares or units of the investment fund for distribution or to distribute the shares or units of the investment fund on behalf of the investment fund; (“contrat de placement”)
“distribution to the public”, where used in relation to trading in securities, means a distribution that is made for the purpose of distributing to the public securities issued by an issuer, whether such trades are made directly or indirectly to the public through an underwriter or otherwise; (“placement dans le public”)
“economic exposure” in relation to a reporting issuer means the extent to which the economic or financial interests of a person or company are aligned with the trading price of securities of the reporting issuer or the economic or financial interests of the reporting issuer; (“risque financier”)
“economic interest in a security” means,
a right to receive or the opportunity to participate in a reward, benefit or return from a security, or
an exposure to a loss or a risk of loss in respect of a security; (“intérêt financier dans une valeur mobilière”)
“form of proxy” means a written or printed form that, upon completion and execution by or on behalf of a security holder, becomes a proxy; (“formule de procuration”)
“forward-looking information” means disclosure regarding possible events, conditions or financial performance that is based on assumptions about future economic conditions and courses of action and includes future oriented financial information with respect to prospective financial performance, financial position or cash flows that is presented either as a forecast or a projection; (“information prospective”)
“individual” means a natural person, but does not include a partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, or a natural person in his or her capacity as trustee, executor, administrator or other legal personal representative; (“particulier”)
“information processor” means a person or company that receives and provides information related to orders for and trades of securities; (“agence de traitement de l’information”)
“insider” means,
a director or officer of a reporting issuer,
a director or officer of a person or company that is itself an insider or subsidiary of a reporting issuer,
a person or company that has,
beneficial ownership of, or control or direction over, directly or indirectly, securities of a reporting issuer carrying more than 10 per cent of the voting rights attached to all the reporting issuer’s outstanding voting securities, excluding, for the purpose of the calculation of the percentage held, any securities held by the person or company as underwriter in the course of a distribution, or
a combination of beneficial ownership of, and control or direction over, directly or indirectly, securities of a reporting issuer carrying more than 10 per cent of the voting rights attached to all the reporting issuer’s outstanding voting securities, excluding, for the purpose of the calculation of the percentage held, any securities held by the person or company as underwriter in the course of a distribution,
a reporting issuer that has purchased, redeemed or otherwise acquired a security of its own issue, for so long as it continues to hold that security,
a person or company designated as an insider in an order made under subsection (11),
a person or company that is in a class of persons or companies designated under subparagraph 40 v of subsection 143 (1); (“initié”)
“investment fund” means a mutual fund or a non-redeemable investment fund; (“fonds d’investissement”)
“investment fund manager” means a person or company that directs the business, operations or affairs of an investment fund; (“gestionnaire de fonds d’investissement”)
“issuer” means a person or company who has outstanding, issues or proposes to issue, a security; (“émetteur”)
“management company” means a person or company who provides investment advice, under a management contract; (“compagnie de gestion”)
“management contract” means a contract under which an investment fund is provided with investment advice, alone or together with administrative or management services, for valuable consideration; (“contrat de gestion”)
“market participant” means,
a registrant,
a person or company exempted from the requirement to be registered under this Act,
a reporting issuer,
a person or company that has issued securities to a registrant or through a registrant acting as agent,
a director, officer or promoter of a person or company described in clause (c) or (c.1),
a manager or custodian of assets, shares or units of an investment fund,
a recognized clearing agency,
a recognized commodity futures exchange,
a recognized exchange,
a recognized quotation and trade reporting system,
a recognized self-regulatory organization,
a designated benchmark administrator,
a person or company that engages or participates in the provision of information for use by a benchmark administrator for the purpose of determining a designated benchmark,
a designated credit rating organization,
a designated trade repository,
a designated information processor,
a transfer agent for securities of an issuer,
a registrar for securities of an issuer,
the Canadian Investor Protection Fund,
the Ontario Contingency Trust Fund,
the MFDA Investor Protection Corporation,
the general partner of a market participant, or
any other person or company or member of a class of persons or companies prescribed by the regulations; (“participant au marché”)
“marketplace” means any of the following, but does not include an inter-dealer bond broker:
An exchange.
A quotation and trade reporting system.
A person or company not included in paragraph 1 or 2 that,
constitutes, maintains or provides a market or facility for bringing together buyers and sellers of securities or derivatives,
brings together the orders for securities or derivatives of multiple buyers and sellers, and
uses established non-discretionary methods under which the orders interact with each other, and the buyers and sellers entering the orders agree to the terms of a trade.
With respect to securities, a dealer who executes a trade of an exchange-traded security outside a marketplace described in paragraph 1, 2 or 3; (“marché”)
“material change”,
when used in relation to an issuer other than an investment fund, means,
a change in the business, operations or capital of the issuer that would reasonably be expected to have a significant effect on the market price or value of any of the securities of the issuer, or
a decision to implement a change referred to in subclause (i) made by the board of directors or other persons acting in a similar capacity or by senior management of the issuer who believe that confirmation of the decision by the board of directors or such other persons acting in a similar capacity is probable, and
when used in relation to an issuer that is an investment fund, means,
a change in the business, operations or affairs of the issuer that would be considered important by a reasonable investor in determining whether to purchase or continue to hold securities of the issuer, or
a decision to implement a change referred to in subclause (i) made,
by the board of directors of the issuer or the board of directors of the investment fund manager of the issuer or other persons acting in a similar capacity,
by senior management of the issuer who believe that confirmation of the decision by the board of directors or such other persons acting in a similar capacity is probable, or
by senior management of the investment fund manager of the issuer who believe that confirmation of the decision by the board of directors of the investment fund manager of the issuer or such other persons acting in a similar capacity is probable; (“changement important”)
“material fact”, when used in relation to securities issued or proposed to be issued, means a fact that would reasonably be expected to have a significant effect on the market price or value of the securities; (“fait important”)
“Minister” means the Minister of Finance or such other member of the Executive Council to whom the administration of this Act may be assigned; (“ministre”)
“misrepresentation” means,
an untrue statement of material fact, or
an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made; (“présentation inexacte des faits”)
“mutual fund” means an issuer whose primary purpose is to invest money provided by its security holders and whose securities entitle the holder to receive on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in part of the net assets, including a separate fund or trust account, of the issuer; (“fonds mutuel”)
“mutual fund in Ontario” means a mutual fund that is a reporting issuer or that is organized under the laws of Ontario, but does not include a private mutual fund; (“fonds mutuel de l’Ontario”)
“non-redeemable investment fund” means an issuer,
whose primary purpose is to invest money provided by its security holders,
that does not invest,
for the purpose of exercising or seeking to exercise control of an issuer, other than an issuer that is a mutual fund or a non-redeemable investment fund, or
for the purpose of being actively involved in the management of any issuer in which it invests, other than an issuer that is a mutual fund or a non-redeemable investment fund, and
that is not a mutual fund; (“fonds d’investissement à capital fixe”)
“offering memorandum” means a document, together with any amendments to that document, purporting to describe the business and affairs of an issuer that has been prepared primarily for delivery to and review by a prospective purchaser so as to assist the prospective purchaser to make an investment decision in respect of securities being sold in a distribution to which section 53 would apply but for the availability of one or more of the exemptions contained in Ontario securities law, but does not include a document setting out current information about an issuer for the benefit of a prospective purchaser familiar with the issuer through prior investment or business contacts; (“notice d’offre”)
“officer”, with respect to an issuer or registrant, means,
a chair or vice-chair of the board of directors, a chief executive officer, a chief operating officer, a chief financial officer, a president, a vice-president, a secretary, an assistant secretary, a treasurer, an assistant treasurer and a general manager,
every individual who is designated as an officer under a by-law or similar authority of the registrant or issuer, and
“Ontario securities law” means,
this Act,
the regulations, and
in respect of a person or company, a decision of the Commission, the Tribunal or a Director to which the person or company is subject; (“droit ontarien des valeurs mobilières”)
“person” means an individual, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, trust, trustee, executor, administrator, or other legal representative; (“personne”)
“portfolio securities”, where used in relation to a mutual fund, means securities held or proposed to be purchased by the mutual fund; (“valeurs de portefeuille”)
“private company” means a company in whose constating document,
the right to transfer its shares is restricted,
the number of its shareholders, exclusive of persons who are in its employment and exclusive of persons who, having been formerly in the employment of the company, were, while in that employment, and have continued after termination of that employment to be, shareholders of the company, is limited to not more than fifty, two or more persons who are the joint registered owners of one or more shares being counted as one shareholder, and
any invitation to the public to subscribe for its securities is prohibited; (“compagnie fermée”)
“private mutual fund” means a mutual fund that is,
operated as an investment club, where,
its shares or units are held by not more than fifty persons and its indebtedness has never been offered to the public,
it does not pay or give any remuneration for investment advice or in respect of trades in securities, except normal brokerage fees, and
all of its members are required to make contributions in proportion to the shares or units each holds for the purpose of financing its operations, or
administered by a trust corporation registered under the Loan and Trust Corporations Act and consists of a common trust fund as defined in section 1 of that Act; (“fonds mutuel fermé”)
“promoter” means,
a person or company who, acting alone or in conjunction with one or more other persons, companies or a combination thereof, directly or indirectly, takes the initiative in founding, organizing or substantially reorganizing the business of an issuer, or
a person or company who, in connection with the founding, organizing or substantial reorganizing of the business of an issuer, directly or indirectly, receives in consideration of services or property, or both services and property, 10 per cent or more of any class of securities of the issuer or 10 per cent or more of the proceeds from the sale of any class of securities of a particular issue, but a person or company who receives such securities or proceeds either solely as underwriting commissions or solely in consideration of property shall not be deemed a promoter within the meaning of this definition if such person or company does not otherwise take part in founding, organizing, or substantially reorganizing the business; (“promoteur”)
“proxy” means a completed and executed form of proxy by means of which a security holder has appointed a person or company as the security holder’s nominee to attend and act for and on the security holder’s behalf at a meeting of security holders; (“procuration”)
“published market” means, with respect to a class of securities, a market in Canada or outside of Canada on which the securities are traded, if the prices at which they have been traded on that market are regularly,
disseminated electronically, or
published in a newspaper or business or financial publication of general and regular paid circulation; (“marché organisé”)
“quotation and trade reporting system” means a person or company that operates facilities that permit the dissemination of price quotations for the purchase and sale of securities and reports of completed transactions in securities for the exclusive use of registered dealers, but does not include an exchange or a registered dealer; (“système de cotation et de déclaration des opérations”)
“recognized clearing agency” means a clearing agency recognized by the Commission under section 21.2; (“agence de compensation reconnue”)
“recognized commodity futures exchange” means a person or company that is registered or recognized by the Commission as a commodity futures exchange under the Commodity Futures Act or that is exempted from the requirement to be registered or recognized by order of the Commission; (“Bourse reconnue de contrats à terme sur marchandises”)
“recognized exchange” means a person or company recognized by the Commission under section 21; (“bourse reconnue”)
“recognized quotation and trade reporting system” means a quotation and trade reporting system recognized by the Commission under section 21.2.1; (“système reconnu de cotation et de déclaration des opérations”)
“recognized self-regulatory organization” means a self-regulatory organization recognized by the Commission under section 21.1 or recognized as a self-regulatory body by the Commission under the Commodity Futures Act; (“organisme d’autoréglementation reconnu”)
“registrant” means a person or company registered or required to be registered under this Act; (“personne ou compagnie inscrite”)
“regulations” means the regulations made under this Act and, unless the context otherwise indicates, includes the rules; (“règlements”)
“reporting issuer” means an issuer,
that has issued voting securities on or after the 1st day of May, 1967 in respect of which a prospectus was filed and a receipt therefor obtained under a predecessor of this Act or in respect of which a securities exchange take-over bid circular was filed under a predecessor of this Act,
that has filed a prospectus and for which the Director has issued a receipt under this Act,
that has filed a securities exchange take-over bid circular under this Act before December 14, 1999,
any of whose securities have been at any time since the 15th day of September, 1979 listed and posted for trading on any exchange in Ontario recognized by the Commission, regardless of when such listing and posting for trading commenced,
to which the Business Corporations Act applies and which, for the purposes of that Act, is offering its securities to the public,
that is the company whose existence continues following the exchange of securities of a company by or for the account of such company with another company or the holders of the securities of that other company in connection with,
a statutory amalgamation or arrangement, or
a statutory procedure under which one company takes title to the assets of the other company that in turn loses its existence by operation of law, or under which the existing companies merge into a new company,
where one of the amalgamating or merged companies or the continuing company has been a reporting issuer for at least twelve months, or
that is designated as a reporting issuer in an order made under subsection 1 (11); (“émetteur assujetti”)
“representative” means,
in respect of a registered dealer, an individual who trades securities on behalf of the dealer, whether or not the individual is employed by the dealer, or
in respect of a registered adviser, an individual who provides advice on behalf of the adviser with respect to investing in, buying or selling securities, whether or not the individual is employed by the adviser; (“représentant”)
“rules” means the rules made under section 143; (“règles”)
“security” includes,
any document, instrument or writing commonly known as a security,
any document constituting evidence of title to or interest in the capital, assets, property, profits, earnings or royalties of any person or company,
any document constituting evidence of an interest in an association of legatees or heirs,
any document constituting evidence of an option, subscription or other interest in or to a security,
a bond, debenture, note or other evidence of indebtedness or a share, stock, unit, unit certificate, participation certificate, certificate of share or interest, preorganization certificate or subscription other than,
a contract of insurance issued by an insurance company licensed under the Insurance Act, and
evidence of a deposit issued by a bank listed in Schedule I, II or III to the Bank Act (Canada), by a credit union or central to which the Credit Unions and Caisses Populaires Act, 2020 applies, by a loan corporation or trust corporation registered under the Loan and Trust Corporations Act or by an association to which the Cooperative Credit Associations Act (Canada) applies,
any agreement under which the interest of the purchaser is valued for purposes of conversion or surrender by reference to the value of a proportionate interest in a specified portfolio of assets, except a contract issued by an insurance company licensed under the Insurance Act which provides for payment at maturity of an amount not less than three quarters of the premiums paid by the purchaser for a benefit payable at maturity,
any agreement providing that money received will be repaid or treated as a subscription to shares, stock, units or interests at the option of the recipient or of any person or company,
any certificate of share or interest in a trust, estate or association,
any profit-sharing agreement or certificate,
any certificate of interest in an oil, natural gas or mining lease, claim or royalty voting trust certificate,
any oil or natural gas royalties or leases or fractional or other interest therein,
any collateral trust certificate,
any income or annuity contract not issued by an insurance company,
any investment contract,
any document constituting evidence of an interest in a scholarship or educational plan or trust, and
any commodity futures contract or any commodity futures option that is not traded on a commodity futures exchange registered with or recognized by the Commission under the Commodity Futures Act or the form of which is not accepted by the Director under that Act,
whether any of the foregoing relate to an issuer or proposed issuer; (“valeur mobilière”)
“self-regulatory organization” means a person or company that is organized for the purpose of regulating the operations and the standards of practice and business conduct, in capital markets, of its members and their representatives with a view to promoting the protection of investors and the public interest; (“organisme d’autoréglementation”)
“trade” or “trading” includes,
any sale or disposition of a security for valuable consideration, whether the terms of payment be on margin, instalment or otherwise, but does not include a purchase of a security or, except as provided in clause (d), a transfer, pledge or encumbrance of securities for the purpose of giving collateral for a debt made in good faith,
any participation as a trader in any transaction in a security through the facilities of any exchange or quotation and trade reporting system,
entering into a derivative or making a material amendment to, terminating, assigning, selling or otherwise acquiring or disposing of a derivative, or
a novation of a derivative, other than a novation with a clearing agency,
any receipt by a registrant of an order to buy or sell a security,
any transfer, pledge or encumbrancing of securities of an issuer from the holdings of any person or company or combination of persons or companies described in clause (c) of the definition of “distribution” for the purpose of giving collateral for a debt made in good faith, and
any act, advertisement, solicitation, conduct or negotiation directly or indirectly in furtherance of any of the foregoing; (“opération”)
“trade repository” means a person or company that collects and maintains reports of completed trades by other persons and companies; (“répertoire des opérations”)
“Tribunal” means the Capital Markets Tribunal; (“Tribunal”)
“ultimate designated person” means, in respect of a registrant that is a registered dealer, registered adviser or registered investment fund manager, an individual designated by the registrant,
to supervise the registrant’s activities that are directed towards ensuring compliance with Ontario securities law by the registrant and by each individual acting on the registrant’s behalf, and
to fulfill such other functions as may be prescribed by the regulations in order to otherwise promote compliance with Ontario securities law; (“personne désignée responsable”)
“underwriter” means a person or company who, as principal, agrees to purchase securities with a view to distribution or who, as agent, offers for sale or sells securities in connection with a distribution and includes a person or company who has a direct or indirect participation in any such distribution, but does not include,
a person or company whose interest in the transaction is limited to receiving the usual and customary distributor’s or seller’s commission payable by an underwriter or issuer,
a mutual fund that, under the laws of the jurisdiction to which it is subject, accepts its shares or units for surrender and resells them,
a company that, under the laws of the jurisdiction to which it is subject, purchases its shares and resells them, or
a bank listed in Schedule I, II or III to the Bank Act (Canada) with respect to securities described in paragraph 1 of subsection 35 (2) or to such banking transactions as are designated by the regulations; (“souscripteur à forfait”)
“voting security” means any security other than a debt security of an issuer carrying a voting right either under all circumstances or under some circumstances that have occurred and are continuing. (“valeur mobilière avec droit de vote”) ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ;
For the purposes of this Act, any of “business combination”, “consultant”, “disclosure controls and procedures”, “exchange-traded security”, “future-oriented financial information”, “going private transaction”, “insider bid”, inter-dealer bond broker”, “internal controls”, “offer to acquire”, “offeror”, “penny stocks”, “related party transactions” and “reverse take-overs” may be defined in the regulations or the rules and, if so defined, has the defined meaning. ;
For the purposes of this Act,
a person or company purchases a derivative by entering into, making a material amendment to or otherwise acquiring a derivative;
a person or company sells a derivative by making a material amendment to, terminating, assigning or otherwise disposing of a derivative; and
a novation of a derivative, other than a novation with a clearing agency, is deemed to be the purchase and sale of a derivative.
For the purposes of Parts XV and XVI and section 133,
“dealer” means a person or company that trades in securities in the capacity of principal or agent.
A company shall be deemed to be an affiliate of another company if one of them is the subsidiary of the other or if both are subsidiaries of the same company or if each of them is controlled by the same person or company. ; ;
A company shall be deemed to be controlled by another person or company or by two or more companies if,
voting securities of the first-mentioned company carrying more than 50 per cent of the votes for the election of directors are held, otherwise than by way of security only, by or for the benefit of the other person or company or by or for the benefit of the other companies; and
the votes carried by such securities are entitled, if exercised, to elect a majority of the board of directors of the first-mentioned company. ; ;
A company shall be deemed to be a subsidiary of another company if,
it is controlled by,
that other, or
that other and one or more companies each of which is controlled by that other, or
two or more companies each of which is controlled by that other; or
it is a subsidiary of a company that is that other’s subsidiary. ; ;
A person shall be deemed to own beneficially securities beneficially owned by a company controlled by the person or by an affiliate of such company.
A company shall be deemed to own beneficially securities beneficially owned by its affiliates.
Every management company and every distribution company of a mutual fund that is a reporting issuer and every insider of such management company or distribution company shall be deemed to be an insider of the mutual fund.
, (9) Repealed:
If the Commission is satisfied that it would not be prejudicial to the public interest, it may make an order that, for the purposes of Ontario securities law,
a person or company is not,
an insider, or
a reporting issuer;
a contract or instrument is not a derivative; or
a derivative is not a designated derivative.
If the Commission considers that it is in the public interest, it may make an order that, for purposes of Ontario securities law,
a person or company is an insider of a reporting issuer if the person or company would reasonably be expected to have, in the ordinary course, access to material information about the business, operations, assets or revenues of the issuer;
a person or company is a reporting issuer; or
a derivative is a designated derivative. ;
An order under subsection (10) may be made subject to such terms and conditions as the Commission may impose.
The purposes of this Act are,
to provide protection to investors from unfair, improper or fraudulent practices;
to foster fair, efficient and competitive capital markets and confidence in capital markets;
to foster capital formation; and
to contribute to the stability of the financial system and the reduction of systemic risk. ; ;
PART I THE COMMISSION
[Repealed]
In pursuing the purposes of this Act, the Commission shall have regard to the following fundamental principles:
Balancing the importance to be given to each of the purposes of this Act may be required in specific cases.
The primary means for achieving the purposes of this Act are,
requirements for timely, accurate and efficient disclosure of information,
restrictions on fraudulent and unfair market practices and procedures, and
requirements for the maintenance of high standards of fitness and business conduct to ensure honest and responsible conduct by market participants.
Effective and responsive securities regulation requires timely, open and efficient administration and enforcement of this Act by the Commission.
The Commission should, subject to an appropriate system of supervision, use the enforcement capability and regulatory expertise of recognized self-regulatory organizations.
The integration of capital markets is supported and promoted by the sound and responsible harmonization and co-ordination of securities regulation regimes.
Business and regulatory costs and other restrictions on the business and investment activities of market participants should be proportionate to the significance of the regulatory objectives sought to be realized.
Innovation in Ontario’s capital markets should be facilitated. ;
(1) The Commission shall notify the Minister if, in its opinion, there are extraordinary circumstances that may require immediate action to be taken under this section in the public interest.
For the purposes of this section, each of the following events constitutes extraordinary circumstances:
A major market disturbance characterized by or constituting sudden fluctuations of securities prices that threaten fair and orderly capital markets.
A major market disturbance characterized by or constituting a substantial disruption in the system for clearance and settlement of transactions.
A major disruption in the functioning of capital markets or of a significant segment of the markets, including a major disruption in the availability of capital to market participants.
A major disruption in the transmission, execution or processing of securities transactions.
A substantial threat of such a major market disturbance or major disruption.
The Commission may, without notice or a hearing, make an order under this subsection to suspend trading in a security or related derivative or to suspend all trading on a recognized exchange or otherwise,
if, in the opinion of the Commission, there are extraordinary circumstances requiring immediate action to be taken in the public interest; and
if, in the opinion of the Commission, the order is necessary to maintain or restore fair and orderly securities markets, to ensure prompt, accurate and safe clearance and settlement of transactions in securities or to assist in doing so in another jurisdiction. ;
The order may be subject to such terms and conditions as the Commission may impose.
The order takes effect immediately and expires no later than 10 days after the day on which it is made.
The Commission shall promptly issue a news release describing the details of the order and shall publish the order in its Bulletin.
The Commission shall give an opportunity to be heard to persons and companies who are directly affected by the order and who consider themselves aggrieved by it, and the opportunity to be heard may be oral or in writing in the discretion of the Commission.
Subject to the approval of the Minister, the Commission may make a regulation relating to any matter governed by Ontario securities law, despite any other provision of this Act,
if, in the opinion of the Commission, there are extraordinary circumstances requiring immediate action to be taken in the public interest; and
if, in the opinion of the Commission, the regulation is necessary to maintain or restore fair and orderly securities markets, to ensure prompt, accurate and safe clearance and settlement of transactions in securities or to assist in doing so in another jurisdiction.
Upon being approved by the Minister, the regulation comes into force immediately, despite section 22 of the Legislation Act, 2006, and it is revoked no later than 30 days after the day on which it comes into force.
Despite subsection (11), an amendment to the regulation may provide that it remains in effect for a further period of up to 30 days, and the regulation may be so amended more than once.
When the regulation comes into force, the Commission shall promptly issue a news release describing the details of the regulation and shall publish the regulation in its Bulletin together with a statement setting out the substance and purpose of the regulation and the nature of the extraordinary circumstances.
Subsection (13) applies, with necessary modifications, with respect to any amendment to the regulation.
As soon as practicable after the regulation comes into force, the Commission shall publish in its Bulletin a description of the particular circumstances upon which the Commission based its decision to make the regulation.
The Lieutenant Governor in Council may make a regulation relating to any matter governed by Ontario securities law, despite any other provision of this Act,
if, in the opinion of the Lieutenant Governor in Council, there are extraordinary circumstances requiring immediate action to be taken in the public interest; and
if, in the opinion of the Lieutenant Governor in Council, the regulation is necessary to maintain or restore fair and orderly securities markets, to ensure prompt, accurate and safe clearance and settlement of transactions in securities or to assist in doing so in another jurisdiction.
This section does not limit the authority of the Commission under any other section of this Act.
(1) The Commission may delegate any of the Commission’s powers and duties under this Act to the Chief Executive Officer of the Commission or to another Director.
The Chief Executive Officer of the Commission may delegate powers or duties under this Act to another Director, other than powers and duties delegated to the Chief Executive Officer of the Commission by the Commission under subsection (1).
The Commission may revoke, in whole or in part, a delegation made under subsection (1), and the Chief Executive Officer of the Commission may revoke, in whole or in part, a delegation made under subsection (2).
A delegation under this section is subject to any terms or conditions set out in the delegation.
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
[Repealed]
Part II (s. 4) Repealed:
PART III APPOINTMENT OF EXPERTS
(1) The Commission may appoint one or more experts to assist the Commission in such manner as it may consider expedient.
The Commission may submit any agreement, prospectus, financial statement, report or other document to one or more experts appointed under subsection (1) for examination, and the Commission has the like power to summon and enforce the attendance of witnesses before the expert and to compel them to produce documents, records and things as is vested in the Commission, and subsection 13 (1) applies with necessary modifications. ;
An expert appointed under subsection (1) shall be paid such amounts for services and expenses as the Lieutenant Governor in Council may determine.
Part IV (ss. 6, 7) Repealed:
[Repealed]
[Repealed]
PART V ADMINISTRATIVE PROCEEDINGS, REVIEWS AND APPEALS
(1) Repealed:
Any person or company directly affected by a decision of the Director may, by notice in writing sent by registered mail to the Tribunal within thirty days after the mailing of the notice of the decision, request and be entitled to a hearing and review thereof by the Tribunal. ;
Despite subsection (2), the Tribunal may extend the time limit for filing notice of the request if an extension is not prejudicial to the public interest.
Upon a hearing and review, the Tribunal may by order confirm the decision under review or make such other decision as the Tribunal considers proper. ;
Despite the fact that a person or company requests a hearing and review under subsection (2), the decision under review takes effect immediately, but the Tribunal may grant a stay until disposition of the hearing and review. ;
(1) A person or company directly affected by a final decision of the Commission, other than a decision under section 74, may appeal to the Divisional Court within thirty days after the later of the making of the final decision or the issuing of the reasons for the final decision.
Despite the fact that an appeal is taken under this section, the decision appealed from takes effect immediately, but the Commission or the Divisional Court may grant a stay until disposition of the appeal.
The Chief Executive Officer of the Commission shall certify to the Divisional Court,
the decision that has been reviewed by the Commission;
the decision of the Commission, together with any statement of reasons therefor;
the record of the proceedings before the Commission; and
all written submissions to the Commission or other material that is relevant to the appeal. ; ;
The Commission is the respondent to an appeal under this section.
The Minister is entitled to be heard by counsel or otherwise on the argument of an appeal under this section, whether or not the Minister is named as a party to the appeal.
Where an appeal is taken under this section, the court may by its order direct the Commission to make such decision or to do such other act as the Commission is authorized and empowered to do under this Act or the regulations and as the court considers proper, having regard to the material and submissions before it and to this Act and the regulations, and the Commission shall make such decision or do such act accordingly.
Despite an order of the court on an appeal, the Commission may make any further decision upon new material or where there is a significant change in the circumstances, and every such decision is subject to this section.
(1) The Chief Executive Officer of the Commission or a person or company directly affected by a final decision of the Tribunal, other than a decision under section 127.0.1 or 127.0.2, may appeal to the Divisional Court within 30 days after the later of the making of the final decision or the issuing of the reasons for the final decision. ;
Despite the fact that an appeal is taken under this section, the decision appealed from takes effect immediately, but the Tribunal or the Divisional Court may grant a stay until disposition of the appeal.
The Chief Adjudicator shall certify to the Divisional Court,
the decision that has been reviewed by the Tribunal;
the decision of the Tribunal, together with any statement of reasons;
the record of the proceedings before the Tribunal; and
all written submissions to the Tribunal or other material that is relevant to the appeal.
The Minister is entitled to be heard by counsel or otherwise on the argument of an appeal under this section, whether or not the Minister is named as a party to the appeal.
The Chief Executive Officer of the Commission is a respondent to an appeal under this section by a person or company mentioned in subsection (1).
Where an appeal is taken under this section, the court may by its order direct the Tribunal to make such decision or to do such other act as the Tribunal is authorized and empowered to do under this Act or the regulations and as the court considers proper, having regard to the material and submissions before it and to this Act and the regulations, and the Tribunal shall make such decision or do such act accordingly.
Despite an order of the court on an appeal, the Tribunal may make any further decision upon new material or where there is a significant change in the circumstances, and every such decision is subject to this section.
PART VI INVESTIGATIONS AND EXAMINATIONS
(1) The Commission may, by order, appoint one or more persons to make such investigation with respect to a matter as it considers expedient,
for the due administration of Ontario securities law or the regulation of the capital markets in Ontario; or
to assist in the due administration of the securities or derivatives laws or the regulation of the capital markets in another jurisdiction. ;
An order under this section shall describe the matter to be investigated.
For the purposes of an investigation under this section, a person appointed to make the investigation may investigate and inquire into,
the affairs of the person or company in respect of which the investigation is being made, including any trades, communications, negotiations, transactions, investigations, loans, borrowings or payments to, by, on behalf of, or in relation to or connected with the person or company and any property, assets or things owned, acquired or alienated in whole or in part by the person or company or by any other person or company acting on behalf of or as agent for the person or company; and
the assets at any time held, the liabilities, debts, undertakings and obligations at any time existing, the financial or other conditions at any time prevailing in or in relation to or in connection with the person or company, and any relationship that may at any time exist or have existed between the person or company and any other person or company by reason of investments, commissions promised, secured or paid, interests held or acquired, the loaning or borrowing of money, stock or other property, the transfer, negotiation or holding of stock, interlocking directorates, common control, undue influence or control or any other relationship.
For the purposes of an investigation under this section, a person appointed to make the investigation may examine any documents or other things, whether they are in the possession or control of the person or company in respect of which the investigation is ordered or of any other person or company.
Despite subsection (1), the Minister may, by order, appoint one or more persons to make such investigation as the Minister considers expedient,
for the due administration of Ontario securities law or the regulation of the capital markets in Ontario; or
to assist in the due administration of the securities or derivatives laws or the regulation of the capital markets in another jurisdiction. ;
A person appointed under subsection (5) has, for the purpose of the investigation, the same authority, powers, rights and privileges as a person appointed under subsection (1).
(1) The Commission may, by order, appoint one or more persons to make such examination of the financial affairs of a market participant as it considers expedient,
for the due administration of Ontario securities law or the regulation of the capital markets in Ontario; or
to assist in the due administration of the securities or derivatives laws or the regulation of the capital markets in another jurisdiction. ;
An order under subsection (1) shall describe the matter to be examined.
For the purposes of an examination under this section, a person appointed to conduct the examination may examine any documents or other things, whether they are in the possession or control of the market participant or any other person or company.
(1) A person making an investigation or examination under section 11 or 12 has the same power to summon and enforce the attendance of any person and to compel him or her to testify on oath or otherwise, and to summon and compel any person or company to produce documents and other things, as is vested in the Superior Court of Justice for the trial of civil actions, and the refusal of a person to attend or to answer questions or of a person or company to produce such documents or other things as are in his, her or its custody or possession makes the person or company liable to be committed for contempt by the Superior Court of Justice as if in breach of an order of that court. ;
A person or company giving evidence under subsection (1) may be represented by counsel and may claim any privilege to which the person or company is entitled.
A person making an investigation or examination under section 11 or 12 may, on production of the order appointing him or her, enter the business premises of any person or company named in the order during business hours and inspect any documents or other things that are used in the business of that person or company and that relate to the matters specified in the order, except those maintained by a lawyer in respect of his or her client’s affairs.
A person making an investigation or examination under section 11 or 12 may apply to a judge of the Ontario Court of Justice in the absence of the public and without notice for an order authorizing the person or persons named in the order to enter and search any building, receptacle or place specified and to seize anything described in the authorization that is found in the building, receptacle or place and to bring it before the judge granting the authorization or another judge to be dealt with by him or her according to law. ;
No authorization shall be granted under subsection (4) unless the judge to whom the application is made is satisfied on information under oath that there are reasonable and probable grounds to believe that there may be in the building, receptacle or place to be searched anything that may reasonably relate to the order made under section 11 or 12.
A person named in an order under subsection (4) may, on production of the order, enter any building, receptacle or place specified in the order between 6 a.m. and 9 p.m., search for and seize anything specified in the order, and use as much force as is reasonably necessary for that purpose.
Every order under subsection (4) shall name the date that it expires, and the date shall be not later than fifteen days after the order is granted.
Sections 159 and 160 of the Provincial Offences Act apply to searches and seizures under this section with such modifications as the circumstances require.
“building, receptacle or place” does not include a private residence.
(1) Anything seized or produced under this Part shall be made available for inspection and copying by the person or company from which it was obtained, if practicable.
Anything seized or produced under this Part shall be returned to the person or company from which it was obtained when,
retention is no longer necessary for the purposes of an investigation, examination, proceeding or prosecution; or
the Commission so orders.
(1) A person appointed under subsection 11 (1) or 12 (1) shall, at the request of the Chair of the Commission or of a member of the Commission involved in making the appointment, provide a report to the Chair or member, as the case may be, or any testimony given and any documents or other things obtained under section 13.
A report provided under this section is privileged.
(1) Except in accordance with subsection (1.1) or section 17, no person or company shall disclose at any time,
the name of any person examined or sought to be examined under section 13, any testimony given under section 13, any information obtained under section 13, the nature or content of any questions asked under section 13, the nature or content of any demands for the production of any document or other thing under section 13, or the fact that any document or other thing was produced under section 13. ;
A disclosure by a person or company is permitted if,
the disclosure is to the person’s or company’s counsel; or
the disclosure is to the person’s or company’s insurer or insurance broker, and the person or company, or his, her or its counsel,
gives written notice of the intended disclosure to a person appointed by the order under section 11 at least 10 days before the date of the intended disclosure,
includes in that written notice the name and head office address of the insurer or insurance broker and the name of the individual acting on behalf of the insurer or insurance broker to whom the disclosure is intended to be made, as applicable, and
on making the disclosure, advises the insurer or insurance broker that the insurer or insurance broker is bound by the confidentiality requirements in subsection (2) and obtains a written acknowledgement from the insurer or insurance broker of this advice.
If the Commission issues an order under section 11 or 12, all reports provided under section 15, all testimony given under section 13 and all documents and other things obtained under section 13 relating to the investigation or examination that is the subject of the order are for the exclusive use of the Commission or of such other regulator as the Commission may specify in the order, and shall not be disclosed or produced to any other person or company or in any other proceeding except in accordance with subsection (1.1) or section 17. ;
(1) If the Tribunal considers that it would be in the public interest, it may make an order authorizing the disclosure to any person or company of,
the name of any person examined or sought to be examined under section 13, any testimony given under section 13, any information obtained under section 13, the nature or content of any questions asked under section 13, the nature or content of any demands for the production of any document or other thing under section 13, or the fact that any document or other thing was produced under section 13; or
all or part of a report provided under section 15. ;
No order shall be made under subsection (1) unless the Tribunal has, where practicable, given reasonable notice and an opportunity to be heard to,
persons and companies named by the Tribunal; and
in the case of disclosure of testimony given or information obtained under section 13, the person or company that gave the testimony or from which the information was obtained. ;
Despite subsection (2), if the Tribunal considers that it would be in the public interest, it may make an order without notice and without giving an opportunity to be heard authorizing the disclosure of the things described in clauses (1) (a) to (c) to any entity referred to in paragraph 1, 3, 4 or 5 of section 153. ;
Without the written consent of the person from whom the testimony was obtained, no order shall be made under subsection (1) or (2.1) authorizing the disclosure of testimony given under subsection 13 (1) to,
a member of a municipal, provincial, federal or other police service; or
a person responsible for the enforcement of the criminal law of Canada or of any other country or jurisdiction. ; ;
An order under subsection (1) or (2.1) may be subject to terms and conditions imposed by the Tribunal. ; ;
A court having jurisdiction over a prosecution under the Provincial Offences Act initiated by the Commission may compel production to the court of any testimony given or any document or other thing obtained under section 13, and after inspecting the testimony, document or thing and providing all interested parties with an opportunity to be heard, the court may order the release of the testimony, document or thing to the defendant if the court determines that it is relevant to the prosecution, is not protected by privilege and is necessary to enable the defendant to make full answer and defence, but the making of an order under this subsection does not determine whether the testimony, document or thing is admissible in the prosecution.
A person appointed to make an investigation or examination under this Act may disclose or produce anything mentioned in subsection (1), but may do so only in connection with,
a proceeding commenced or proposed to be commenced under this Act; or
an examination of a witness, including an examination of a witness under section 13. ; ;
a member of a municipal, provincial, federal or other police service; or
a person responsible for the enforcement of the criminal law of Canada or of any other country or jurisdiction. ;
PART VII RECORD-KEEPING AND COMPLIANCE REVIEWS
(1) Every market participant shall keep the following records:
Such books, records and other documents as are necessary for the proper recording of its business transactions and financial affairs and the transactions that it executes on behalf of others.
Such books, records and other documents as may otherwise be required under Ontario securities law.
Such books, records and other documents as may reasonably be required to demonstrate compliance with Ontario securities law.
Such books, records and other documents as may be prescribed by the regulations for the purpose of detecting, identifying or mitigating systemic risks related to the capital markets. ;
Without limiting the generality of subsection (1), every recognized exchange shall keep a record of the time at which each transaction on the recognized exchange took place and shall supply to any client of a member of the recognized exchange, on production of a written confirmation of a transaction with the member, particulars of the time at which the transaction took place and verification or otherwise of the matters set forth in the written confirmation.
Every market participant shall, at the time and in the form specified by the Commission or by any member, employee or agent of the Commission, deliver to the Commission,
any of the books, records and other documents required to be kept by subsection (1); and
except where prohibited by law, any filings, reports or other communications made to any other regulatory agency whether within or outside of Ontario.
(1) The Commission may designate in writing one or more persons to review the books, records and documents of a market participant for the purpose of determining whether Ontario securities law is being complied with.
The Commission may designate in writing one or more persons to review the books, records and documents of an issuer that has distributed securities in reliance on an exemption from the prospectus requirement for the purpose of determining whether the issuer has complied with the requirements, conditions and restrictions of the exemption relied on for the distribution.
The Commission may designate in writing one or more persons for the purpose of reviewing the books, records and documents that are required to be kept by a person or company under the regulations with respect to derivatives.
A person conducting a compliance review may, on production of his or her designation, do the following:
In respect of a compliance review under subsection (1) or (2),
enter the business premises of any market participant or issuer referred to in subsection (2) during business hours, and
inquire into and examine the books, records and documents of the market participant or issuer, and make copies of the books, records and documents.
In respect of a compliance review under subsection (3),
enter the business premises of any person or company during business hours, and
inquire into and examine the books, records and documents of the person or company that are required to be kept under the regulations with respect to derivatives, and make copies of the books, records and documents.
A person or company in respect of which a compliance review is conducted under this section shall pay the Commission such fees as may be prescribed by the regulations.
(1) The Commission or any member, employee or agent of the Commission may conduct a review of the disclosures that have been made or that ought to have been made by a reporting issuer or mutual fund in Ontario, on a basis to be determined at the discretion of the Commission or the Director.
The Commission or any member, employee or agent of the Commission may conduct a review of an issuer other than a reporting issuer or mutual fund in Ontario for the purpose of determining whether disclosure requirements under Ontario securities law applicable to the issuer are being complied with, on a basis to be determined at the discretion of the Commission or the Director.
An issuer that is subject to a review under this section shall, at such time or times as the Commission or Director may require, deliver to the Commission or Director any information and documents relevant to the review.
Despite the Freedom of Information and Protection of Privacy Act, information and documents obtained pursuant to a review under this section are exempt from disclosure under that Act if the Commission determines that the information and documents should be maintained in confidence.
An issuer, or any person or company acting on behalf of an issuer, shall not make any representation, written or oral, that the Commission has in any way passed upon the merits of the disclosure record of the issuer.
PART VIII SELF-REGULATION
(1) No person or company shall carry on business as an exchange in Ontario unless recognized by the Commission under this section.
Subsection (1) does not apply to a person or company with respect to carrying on business as a commodity futures exchange if the person or company is registered to do so under the Commodity Futures Act.
The Commission may, on the application of a person or company proposing to carry on business as an exchange in Ontario, recognize the person or company if the Commission is satisfied that to do so would be in the public interest. ;
A recognition under this section shall be made in writing and shall be subject to such terms and conditions as the Commission may impose.
A recognized exchange shall regulate the operations and the standards of practice and business conduct of its members and their representatives in accordance with its by-laws, rules, regulations, policies, procedures, interpretations and practices. ;
The Commission may, if it considers it in the public interest, make any decision with respect to,
the manner in which a recognized exchange carries on business;
the trading of securities or derivatives on or through the facilities of a recognized exchange;
any security or derivative listed or posted for trading on a recognized exchange;
issuers, whose securities are listed or posted for trading on a recognized exchange, to ensure that they comply with Ontario securities law; or
any by-law, rule, regulation, policy, procedure, interpretation or practice of a recognized exchange.
The Commission may, if it considers it in the public interest, make any decision with respect to,
the manner in which an alternative trading system carries on business in Ontario;
the trading of securities or derivatives on or through the facilities of the alternative trading system; or
any by-law, rule, regulation, policy, procedure, interpretation or practice of the alternative trading system.
(1) The Commission may, on the application of a self-regulatory organization, recognize the self-regulatory organization if the Commission is satisfied that to do so would be in the public interest.
A recognition under this section shall be made in writing and shall be subject to such terms and conditions as the Commission may impose.
A recognized self-regulatory organization shall regulate the operations and the standards of practice and business conduct of its members and their representatives in accordance with its by-laws, rules, regulations, policies, procedures, interpretations and practices.
The Commission may, if it is satisfied that to do so would be in the public interest, make any decision with respect to any by-law, rule, regulation, policy, procedure, interpretation or practice of a recognized self-regulatory organization.
(0.1) No person or company shall carry on business in Ontario as a clearing agency unless the person or company is recognized by the Commission under this section as a clearing agency.
The Commission may, on the application of a clearing agency, recognize the clearing agency if the Commission is satisfied that to do so would be in the public interest.
A recognition under this section shall be made in writing and shall be subject to such terms and conditions as the Commission may impose.
The Commission may make decisions with respect to any of the following matters if the Commission is satisfied that it is in the public interest to do so:
Any by-law, rule, regulation, policy, procedure, interpretation or practice of a recognized clearing agency.
The manner in which a recognized clearing agency carries on its business.
(1) The Commission may, on the application of a quotation and trade reporting system, recognize the quotation and trade reporting system if the Commission is satisfied that to do so is in the public interest.
A recognition under this section shall be made in writing and is subject to such terms and conditions as the Commission may impose.
The Commission may, if it is satisfied that to do so is in the public interest, make any decision with respect to any by-law, rule, regulation, policy, procedure, interpretation or practice of a recognized quotation and trade reporting system.
(1) The Commission may, on the application of a person or company proposing to carry on business as a trade repository in Ontario, designate the person or company if the Commission considers it in the public interest.
A designation under this section must be made in writing and is subject to such terms and conditions as the Commission may impose.
The Commission may, if it considers it in the public interest, make any decision with respect to,
the manner in which a designated trade repository carries on business; or
any by-law, rule, regulation, policy, procedure, interpretation or practice of a designated trade repository.
(1) The Commission may, on the application of a person or company proposing to carry on business as an information processor in Ontario, designate the person or company if the Commission considers it in the public interest.
A designation under this section must be made in writing and is subject to such terms and conditions as the Commission may impose.
The Commission may, if it considers it in the public interest, make any decision with respect to,
the manner in which a designated information processor carries on business; or
any by-law, rule, regulation, policy, procedure, interpretation or practice of the designated information processor.
(1) A recognized exchange, a recognized quotation and trade reporting system or a recognized self-regulatory organization may, with the prior approval of the Commission and on such terms and conditions as the Commission determines to be necessary or appropriate in the public interest, establish a council, committee or ancillary body and delegate to it regulatory or self-regulatory powers or responsibilities or both. ; ;
A council, committee or ancillary body that exercises the powers or assumes the responsibilities of a recognized exchange, recognized quotation and trade reporting system or recognized self-regulatory organization is also included in,
the recognition of the recognized exchange, recognized quotation and trade reporting system or recognized self-regulatory organization;
any suspension, restriction or termination of the recognition of the recognized exchange, recognized quotation and trade reporting system or recognized self-regulatory organization; and
any imposition of terms or conditions on the recognition of the recognized exchange, recognized quotation and trade reporting system or recognized self-regulatory organization. ;
The provisions of Ontario securities law that apply to recognized exchanges, recognized quotation and trade reporting systems and recognized self-regulatory organizations also apply with necessary modifications to the council, committee or ancillary body. ;
On application by a recognized exchange, recognized self-regulatory organization, recognized quotation and trade reporting system, recognized clearing agency, designated trade repository or designated information processor, the Commission may accept the voluntary surrender of the recognition or designation, and may impose terms and conditions applicable to the acceptance, if the Commission is satisfied that the surrender of the recognition or designation is not prejudicial to the public interest. ;
(1) The Commission may, on such terms and conditions as it may impose, delegate to a recognized exchange or recognized self-regulatory organization any of the powers and duties of the Commission under Part XI or the regulations related to that Part.
The Chief Executive Officer of the Commission may, with the approval of the Commission, delegate to a recognized exchange or recognized self-regulatory organization any of the powers and duties of the Director under Part XI or the regulations related to that Part.
The Commission or, with the approval of the Commission, the Chief Executive Officer of the Commission, may at any time revoke, in whole or in part, a delegation made under this section.
No by-law, rule, regulation, policy, procedure, interpretation or practice of a recognized exchange, recognized self-regulatory organization, recognized quotation and trade reporting system, recognized clearing agency, designated trade repository or designated information processor shall contravene Ontario securities law, but a recognized exchange, recognized self-regulatory organization, recognized quotation and trade reporting system, recognized clearing agency, designated trade repository or designated information processor may impose additional requirements within its jurisdiction. ;
(1) The Chief Executive Officer of the Commission or a person or company directly affected by, or by the administration of, a direction, decision, order or ruling made under a by-law, rule, regulation, policy, procedure, interpretation or practice of a recognized exchange, recognized self-regulatory organization, recognized quotation and trade reporting system, recognized clearing agency, designated trade repository or designated information processor may apply to the Tribunal for a hearing and review of the direction, decision, order or ruling. ; ;
Section 8 applies to the hearing and review of the direction, decision, order or ruling in the same manner as it applies to a hearing and review of a decision of the Director.
(1) Every recognized exchange shall appoint an auditor for the exchange.
At the request of the Commission, a recognized self-regulatory organization shall appoint an auditor for the self-regulatory organization.
At the request of the Commission, a recognized clearing agency shall appoint an auditor for the clearing agency.
(1) Every recognized exchange and every recognized self-regulatory organization shall cause each of its members to appoint an auditor. ;
The auditor of a member shall be chosen from the panel of auditing firms selected under subsection (3).
Every recognized exchange and recognized self-regulatory organization shall select a panel of auditing firms for their members. ;
No person shall be appointed as an auditor under subsection (1) unless the person has practised as an auditor in the securities industry in Canada for five years or more.
The auditor of a member shall make an examination, in accordance with generally accepted auditing standards, of the annual financial statements and regulatory filings of the member as called for by the by-laws, rules, regulations, policies, procedures, interpretations or practices applicable to the member, and shall report on the financial affairs of the member to the recognized exchange or recognized self-regulatory organization, as the case may be, in accordance with professional reporting standards. ;
(1) Every registrant that is not subject to section 21.9 shall appoint an auditor who satisfies such requirements as may be established by the Commission.
The auditor of a registrant that is not subject to section 21.9 shall make an examination of the annual financial statements and other regulatory filings of the registrant, in accordance with generally accepted auditing standards, and shall prepare a report on the financial affairs of the registrant in accordance with professional reporting standards.
The registrant shall file the report with the Commission together with its annual financial statements and other regulatory filings.
A registrant that is not subject to section 21.9 shall deliver to the Commission annual audited financial statements, prepared in accordance with generally accepted accounting principles, and other regulatory filings as prescribed by the regulations, within ninety days after the end of its financial year or as otherwise prescribed by the regulations.
The annual financial statements and regulatory filings delivered to the Commission shall be certified by the registrant or an officer or partner of the registrant.
The registrant shall deliver to the Commission such other information as the Commission may require in such form as it may require.
(1) Without the prior approval of the Commission, no person or company and no combination of persons or companies acting jointly or in concert shall beneficially own or exercise control or direction over more than 5 per cent, or such other percentage as may be prescribed under subsection (5), of any class or series of voting shares of The Toronto Stock Exchange Inc.
The Toronto Stock Exchange Inc. may sell any shares held contrary to the restriction in subsection (1) in accordance with section 45 of the Business Corporations Act, with necessary modifications.
Despite subsection (1), if a person or company beneficially owns or exercises control or direction over more than 5 per cent, or such other percentage as may be prescribed under subsection (5), of any class or series of voting shares of The Toronto Stock Exchange Inc. as a result of the issue of shares by The Toronto Stock Exchange Inc. in connection with the continuance of The Toronto Stock Exchange under the Business Corporations Act, the person or company may continue to beneficially own or exercise control or direction over the shares, but shall not vote or cause to permit to be voted any shares of any class or series of voting shares in excess of the 5 per cent level or the prescribed level, as the case may be, without the prior approval of the Commission.
The Commission may, by order, give its approval to a person, company or transaction, for the purposes of subsection (1) or (3), and may impose such terms and conditions on the approval as the Commission considers appropriate.
The Commission may, by regulation, prescribe a percentage for the purposes of subsections (1) and (3) and may prescribe different percentages for different classes of persons or companies.
Section 42 of the Business Corporations Act does not apply to The Toronto Stock Exchange Inc.
“CIRO” means the Canadian Investment Regulatory Organization; (“OCRI”)
“hearing panel” means a hearing panel established under CIRO’s rules; (“formation d’instruction”)
“investigator” means a person appointed under subsection 21.14 (1). (“enquêteur”)
(1) CIRO’s Chief Executive Officer may, by order, appoint one or more of CIRO’s employees to make such investigation with respect to a matter as the Chief Executive Officer considers expedient, provided that CIRO is empowered under its by-laws or rules to make an investigation into the matter.
An order under subsection (1) shall describe the matter to be investigated.
For the purposes of an investigation under this section, an investigator may investigate and inquire into anything referred to in clauses 11 (3) (a) or (b).
For the purposes of an investigation under this section, an investigator may examine any documents or other things, whether they are in the possession or control of the person or company in respect of which the investigation is ordered or of any other person or company.
Nothing in this section limits the ability of CIRO to make investigations under its rules or by-laws other than by appointing an employee or employees under subsection (1).
(1) An investigator has the same power to summon and enforce the attendance of any person and to compel him or her to testify on oath or otherwise, and to summon and compel any person or company to produce documents and other things, as is vested in the Superior Court of Justice for the trial of civil actions, and the refusal of a person to attend or to answer questions or of a person or company to produce such documents or other things as are in his, her or its custody or possession makes the person or company liable to be committed for contempt by the Superior Court of Justice as if in breach of an order of that court.
A person or company giving evidence under subsection (1) may be represented by counsel and may claim any privilege to which the person or company is entitled.
(1) CIRO’s Chief Executive Officer may make an order prohibiting a person or company from disclosing to any other person or company any or all of the following information:
The nature or content of an order or investigation under section 21.14.
The name of any person examined or sought to be examined under section 21.15.
Any testimony given under section 21.15.
Any documents and information obtained under section 21.15.
The nature or content of any questions asked under section 21.15.
The nature or content of any demands for the production of any document or other thing under section 21.15.
The fact that any document or other thing was produced under section 21.15.
The order applies for the period specified in the order.
The order does not apply to a disclosure by the person or company to the person’s or company’s lawyer.
If a hearing panel considers that it would be in the public interest, it may make an order revoking or varying the order described in subsection (1).
No order shall be made by the hearing panel under subsection (4) unless the hearing panel has, where practicable, given reasonable notice and an opportunity to be heard to,
persons and companies named by the hearing panel; and
in the case of disclosure of testimony given or information obtained under section 21.15, the person or company that gave the testimony or from which the information was obtained.
An order under subsection (4) may be subject to terms and conditions imposed by the hearing panel.
CIRO’s Chief Executive Officer or a person or company directly affected by a decision of the hearing panel made under subsection (4) may apply to the Tribunal for a hearing and review of the decision, and section 8 applies to the hearing and review of the decision in the same manner as it applies to a hearing and review of a decision of the Director.
(1) CIRO shall not disclose or produce any testimony given to an investigator under section 21.15 or any documents or things obtained by an investigator under that section except for the purposes of an investigation or,
in connection with,
an examination of a witness, including an examination of a witness under section 21.15,
a proceeding commenced or proposed to be commenced by CIRO or to which CIRO is a party, if the proceeding is related to a matter that is being or has been investigated, or
the settlement of any proceedings or proposed proceedings related to a matter that is being or has been investigated;
to the Commission; or
as authorized by an order of the Tribunal issued under subsection (2).
The Tribunal may make an order authorizing CIRO to disclose or produce any testimony, document or thing referred to in subsection (1) to any person or company if the Tribunal considers that it would be in the public interest, and subsections 17 (2) to (4) apply with necessary modifications to the Tribunal’s issuance of an order under this section.
In a proceeding for an order under subsection (2), the Commission shall be given notice and may appear at the proceeding as a party.
If CIRO discloses or produces any testimony, documents or things to the Commission under subsection (1), sections 16 and 17 apply with respect to the testimony, documents or things in the same manner as those provisions apply to testimony given under section 13 and documents or other things obtained under that section.
Testimony given under subsection 21.15 (1) shall not be disclosed by CIRO or any person or company to any of the following persons without the written consent of the person from whom the testimony was obtained:
A member of a municipal, provincial, federal or other police service.
A person responsible for the enforcement of the criminal law of Canada or of any other country or jurisdiction.
(1) If CIRO is empowered under its by-laws or rules to conduct hearings, a hearing panel may, by summons,
require any person to give evidence on oath or affirmation at an oral hearing or an electronic hearing; and
require any person or company to produce in evidence at an oral hearing or an electronic hearing documents and things specified by the hearing panel.
A hearing panel may only require a person or company to give evidence or produce in evidence documents and things under subsection (1) if the evidence, documents or things are relevant to the subject-matter of the proceeding and admissible at the hearing.
Subsections 12 (2) to (7) of the Statutory Powers Procedure Act apply, with necessary modifications, with respect to a summons under subsection (1) and, if a hearing panel issues a summons under that subsection, sections 11, 13 and 14 of the Statutory Powers Procedure Act apply with necessary modifications.
In this section, “electronic hearing” and “oral hearing” have the same meanings as in the Statutory Powers Procedure Act.
(1) No cause of action arises against any current or former director, officer, employee or agent of CIRO for any act done in good faith in the exercise or performance, or intended exercise or performance, of the person’s powers, duties or functions under an order recognizing CIRO under section 21.1, or that has been assigned to CIRO under section 21.5, or for any alleged neglect or default or other omission in the exercise or performance of those powers, duties and functions.
Subsection (1) does not relieve CIRO of liability to which it would otherwise be subject as a result of the acts or omissions of a person specified in subsection (1).
This section does not apply with respect to proceedings brought by the Crown.
(1) No proceeding shall be commenced against any person specified in subsection 21.20 (1) in respect of a matter referred to in that subsection.
Subsection (1) does not apply with respect to an application for judicial review or any proceeding that is specifically provided for under this Act, but does apply with respect to any other court, administrative or arbitral proceeding claiming any remedy or relief, including specific performance, an injunction, declaratory relief, a remedy in contract, restitution, unjust enrichment or tort, a remedy for breach of trust or fiduciary obligation or any equitable remedy, enforcement of a judgment, order or award made outside Ontario or any form of compensation or damages including loss of revenue or profit.
This section does not apply with respect to proceedings brought by the Crown.
Part IX Credit Rating organizations
(1) A credit rating organization may apply to the Commission to be designated by the Commission if the credit rating organization wants its credit ratings to satisfy,
a requirement in Ontario securities law that a credit rating be given by a credit rating organization designated by the Commission; or
a condition for an exemption under Ontario securities law.
The Commission may designate a credit rating organization, subject to any terms and conditions the Commission considers advisable, if,
an application for designation is made by the credit rating organization or the Director; and
the Commission considers it in the public interest to designate the credit rating organization.
The Commission may, if it considers it in the public interest, cancel the designation of a credit rating organization or impose or change the terms and conditions of the designation.
The Commission shall not, without giving the credit rating organization an opportunity to be heard, refuse to designate a credit rating organization, cancel its designation or impose or change the terms and conditions to which the designation is subject.
If the Director applies to the Commission for the designation of a credit rating organization, the Commission shall not designate the credit rating organization without giving the credit rating organization an opportunity to be heard.
A designated credit rating organization shall comply with such requirements as may be prescribed by the regulations, including requirements,
relating to the establishment, publication and enforcement by the credit rating organization of a code of conduct applicable to its directors, officers and employees and the minimum requirements to be included in the code of conduct;
prohibiting conflicts of interest between the credit rating organization and a person or company whose securities are being rated and establishing procedures to be followed if conflicts of interest arise or to avoid conflicts of interest.
(1) Nothing in this Part shall be construed as authorizing the Commission to direct or regulate the content of credit ratings or methodologies used to determine credit ratings.
No credit rating organization and no person or company acting on its behalf shall make any written or oral representation that the Commission has in any way passed upon the merits of a credit rating or the methodologies used to determine the credit rating.
Part X Benchmarks
(1) A benchmark administrator, or the Director, may apply to the Commission to request the designation of a benchmark or a benchmark administrator.
If the Director applies for a designation, the Commission shall give the affected benchmark administrator the opportunity to be heard before making a decision under subsection (3).
After receiving the application, the Commission may, if it considers it in the public interest to do so, designate the benchmark as a designated benchmark or designate the benchmark administrator as a designated benchmark administrator of a designated benchmark, as appropriate.
A designation under subsection (3) may be made subject to any terms and conditions the Commission considers advisable.
The Commission may, if it considers it in the public interest to do so, cancel the designation of a designated benchmark or a designated benchmark administrator or impose or change the terms and conditions of the designation.
The Commission shall not refuse to designate a benchmark or benchmark administrator, cancel the designation of a designated benchmark or designated benchmark administrator or impose or change the terms and conditions to which a designation is subject without giving the benchmark administrator an opportunity to be heard.
The Commission may, if it considers it in the public interest to do so, assign a designated benchmark to a prescribed category or categories of designated benchmarks.
(1) The Commission may, in response to an application by the Director, require a person or company to provide information to a designated benchmark administrator in relation to the designated benchmark if the Commission considers it in the public interest to do so.
The Commission shall give the affected person or company and benchmark administrator the opportunity to be heard before making the order.
An order under subsection (1) may be made subject to any terms and conditions the Commission considers advisable.
The Commission may, if it considers it in the public interest to do so, cancel or change an order made under subsection (1) or impose or change the terms and conditions of the order.
The Commission shall not cancel or change an order made under subsection (1) or impose or change the terms and conditions of the order without giving the person or company and the benchmark administrator an opportunity to be heard.
(1) A benchmark administrator shall comply with such requirements as may be prescribed by the regulations, including requirements,
relating to benchmarks, benchmark administrators, benchmark contributors and benchmark users; and
relating to the establishment, publication and enforcement of a code of conduct by a benchmark administrator.
A benchmark contributor shall comply with such requirements as may be prescribed by the regulations, including requirements relating to benchmarks, benchmark administrators, benchmark contributors and benchmark users.
Benchmark administrators, benchmark contributors and their respective directors, officers and employees, and any of their service providers or security holders that are in a prescribed class, shall comply with,
any code of conduct established by a benchmark administrator in accordance with the regulations;
requirements established by the regulations relating to the prohibitions against and procedures regarding conflicts of interest involving a benchmark and benchmark administrators, benchmark contributors and their respective directors, officers and employees, and any of their service providers or security holders that are in a prescribed class; and
requirements established by the regulations relating to the prohibition or restriction of any matter or conduct involving a benchmark.
A benchmark user shall comply with such requirements as may be prescribed by the regulations, including requirements,
relating to benchmarks, benchmark administrators, benchmark contributors and benchmark users;
prohibiting the use of a non-designated benchmark; and
relating to disclosure and other requirements relating to the use of a benchmark.
PART XI REGISTRATION
(1) Unless a person or company is exempt under Ontario securities law from the requirement to comply with this subsection, the person or company shall not engage in or hold himself, herself or itself out as engaging in the business of trading in securities unless the person or company,
is registered in accordance with Ontario securities law as a dealer; or
is a representative registered in accordance with Ontario securities law as a dealing representative of a registered dealer and is acting on behalf of the registered dealer.
Unless a person or company is exempt under Ontario securities law from the requirement to comply with this subsection, the person or company shall not act as an underwriter unless the person or company,
is a representative registered in accordance with Ontario securities law as a dealing representative of a registered dealer described in clause (a) and is acting on behalf of the registered dealer.
Unless a person or company is exempt under Ontario securities law from the requirement to comply with this subsection, the person or company shall not engage in the business of, or hold himself, herself or itself out as engaging in the business of, advising anyone with respect to investing in, buying or selling securities unless the person or company,
is registered in accordance with Ontario securities law as an adviser;
is a representative registered in accordance with Ontario securities law as an advising representative of a registered adviser and is acting on behalf of the registered adviser; or
is a representative registered in accordance with Ontario securities law as an associate advising representative of a registered adviser and is acting on behalf of the registered adviser under the supervision of a registered advising representative of the registered adviser.
Unless a person or company is exempt under Ontario securities law from the requirement to comply with this subsection, the person or company shall not act as an investment fund manager unless the person or company is registered in accordance with Ontario securities law as an investment fund manager.
If a registrant that is a registered dealer, registered adviser or registered investment fund manager is required under the regulations to designate an individual as his, her or its ultimate designated person, the individual must be registered in accordance with Ontario securities law as the ultimate designated person of the registrant.
If a registrant that is a registered dealer, registered adviser or registered investment fund manager is required under the regulations to designate an individual as his, her or its chief compliance officer, the individual must be registered in accordance with Ontario securities law as the chief compliance officer of the registrant.
The Commission may, by the adoption of a policy under section 143.8, establish guidelines setting out criteria to be considered in determining whether a person or company is engaged in a business when trading securities or providing advice with respect to investing in, buying or selling securities.
(1) An application for registration, reinstatement of registration or an amendment to an existing registration must contain such information in such form as the Director may reasonably require and must be accompanied by such fee as may be required by the regulations.
A person or company making an application under subsection (1) with respect to registration as a dealer under this Act shall do the following:
Apply to be registered in one or more of the following categories:
investment dealer,
mutual fund dealer,
scholarship plan dealer,
exempt market dealer,
restricted dealer, limited to the trading and underwriting activities authorized under section 27 for the person’s or company’s registration,
such other category of dealer as may be prescribed by the regulations.
Provide such information as the Director may require to verify that the activities of the person or company will be within the permitted activities prescribed by the regulations for the particular category or categories of dealer registration for which the person or company has applied.
A person or company registered under this Act as an investment dealer may act as an underwriter in respect of any distribution of securities unless the regulations provide otherwise.
A person or company registered under this Act as an exempt market dealer may act as an underwriter with respect to a distribution of securities made under an exemption from the prospectus requirements under this Act or the regulations unless the regulations provide otherwise.
A person or company registered under this Act in a category referred to in subparagraph 1 vi of subsection (2) may act as an underwriter in respect of any distribution of securities if the regulations so provide.
A person or company making an application under subsection (1) with respect to registration as an adviser shall indicate for which of the following categories of adviser registration he, she or it is applying and shall provide such information as the Director may require to verify that the activities of the person or company will be within the permitted activities for that category of adviser registration:
Portfolio manager, authorized to provide advice to a client with respect to investing in, buying or selling any type of security, with or without discretionary authority granted by the client to manage the client’s portfolio.
Restricted portfolio manager, limited to the advising activities authorized under section 27 for the person’s or company’s registration.
Such other category of adviser as may be prescribed by the regulations.
If one or more categories of registration are prescribed by the regulations, a person or company applying for registration in a category prescribed by the regulations shall so indicate and provide such information as the Director may require to verify that the category is appropriate for the applicant.
(1) On receipt of an application by a person or company and all information, material and fees required by the Director and the regulations, the Director shall register the person or company, reinstate the registration of the person or company or amend the registration of the person or company, unless it appears to the Director,
that, in the case of a person or company applying for registration, reinstatement of registration or an amendment to a registration, the person or company is not suitable for registration under this Act; or
that the proposed registration, reinstatement of registration or amendment to registration is otherwise objectionable.
In considering for the purposes of subsection (1) whether a person or company is not suitable for registration, the Director shall consider,
whether the person or company has satisfied,
the requirements prescribed in the regulations relating to proficiency, solvency and integrity, and
such other requirements for registration, reinstatement of registration or an amendment to a registration, as the case may be, as may be prescribed by the regulations; and
such other factors as the Director considers relevant.
The Director may, in his or her discretion, impose terms and conditions on the registration, reinstatement of registration or amendment of registration of any person or company and, without limiting the generality of the foregoing,
may restrict the duration of the registration; and
may restrict the person or company to,
trading only specified securities or specified classes of securities or securities of specified classes of issuers,
underwriting only specified securities or specified classes of securities or securities of specified classes of issuers, or
providing advice with respect to investing in, buying or selling only specified securities or specified classes of securities or securities of specified classes of issuers.
The Commission or the Director may, at any time, require a registrant that is a registered dealer, registered adviser or registered investment fund manager to direct its auditor, at the registrant’s expense, to conduct any audit or financial review required by the Commission or the Director and deliver to the Commission as soon as practicable a report of the findings of the audit or review.
The Director may revoke or suspend the registration of a person or company or impose terms or conditions of registration at any time during the period of registration of the person or company if it appears to the Director,
that the person or company is not suitable for registration or has failed to comply with Ontario securities law; or
that the registration is otherwise objectionable.
(1) The registration of a person or company in a particular category of registration is suspended if any of the following events occurs:
A fee imposed on the person or company under this Act or the regulations relating to a particular category of registration of the person or company remains unpaid more than 30 days after the day it is due.
The membership of the person or company in a self-regulatory organization is suspended or terminated if,
the membership of the person or company relates to the particular category of registration, and
the membership of the person or company is a condition of registration under Ontario securities law.
The approval by a self-regulatory organization of the person as a representative of a registered dealer is revoked or suspended by the self-regulatory organization if,
the approval of the representative relates to the particular category of registration in which the representative is registered under Ontario securities law, and
the membership of the dealer in the self-regulatory organization is a condition of the dealer’s registration under Ontario securities law.
A registered representative’s registration in a particular category with respect to a particular registered dealer or registered adviser is suspended when the corresponding category of registration of that dealer or adviser is suspended.
The registration of a representative with respect to a registrant that is a registered dealer, registered adviser or registered investment fund manager is suspended at the time the representative ceases, by reason of any of the following events, to have the authority to act on behalf of the registrant in a capacity that requires the representative to be registered:
The employment of the representative by the registrant is terminated.
The representative’s employment functions change.
The partnership or agency relationship of the representative with the registrant changes or is terminated. ; ;
The registration of an individual as a chief compliance officer or ultimate designated person is suspended at the time the individual ceases to be the chief compliance officer or ultimate designated person of the registered dealer, registered adviser or registered investment fund manager that designated the individual.
Despite subsection (5), if a proceeding is commenced under section 122 or 128 or under the rules of a self-regulatory organization with respect to a registrant, or a hearing is commenced under section 127 with respect to the activities of the registrant, the registrant’s registration continues to remain suspended until an order has been made by the court or a decision is made by the Tribunal or self-regulatory organization in the proceeding or hearing. ;
(1) On application by a person or company for the surrender of his, her or its registration, the Director may accept the application and revoke the registration if the Director is satisfied,
that all financial obligations of the person or company to his, her or its clients have been discharged;
that all requirements, if any, prescribed by the regulations for the surrender of registration have been fulfilled or the Director is satisfied that they will be fulfilled in an appropriate manner; and
that the surrender of the registration is not prejudicial to the public interest.
The Director may impose such terms and conditions on the surrender of a registration as the Director considers appropriate in the circumstances.
The Director shall not do any of the following without giving a person or company an opportunity to be heard:
Refuse to register the person or company.
Amend the registration of the person or company.
Refuse to reinstate the registration of the person or company after the registration is suspended.
Refuse a request from the person or company to amend his, her or its registration.
Suspend or revoke the registration of the person or company under section 28.
Impose terms and conditions under subsection 30 (2) on the surrender of registration of the person or company. ;
(1) Every person and company registered under this Act shall comply at all times with Ontario securities law, including such regulations that apply to them as may be made relating to,
proficiency standards;
business conduct;
in the case of a registrant that is a registered dealer, registered adviser or registered investment fund manager, submission of information respecting ownership, management, directors, officers and any other persons or companies exercising control of the registrant;
opening accounts and reporting trades;
record-keeping;
custody of clients’ assets;
conflicts of interest;
tied selling and referral arrangements;
client complaints;
appointment of auditors and preparation and filing of financial information;
procedures to be followed when a relationship is terminated between a representative and a registered dealer or registered adviser or when the representative commences a new association with a different registered dealer or registered adviser; and
reinstatement of registration.
Every registrant that is a registered dealer, registered adviser or registered investment fund manager shall establish and maintain systems of control and supervision in accordance with the regulations for controlling his, her or its activities and supervising his, her or its representatives.
Except as otherwise permitted or required by the regulations, all notices under this Act or the regulations are sufficiently served for all purposes on a registrant or applicant if they are sent by ordinary letter mail or delivered to the last address for service provided to the Commission.
The Director may require further information or material to be submitted by an applicant or registrant within a specified time and,
may require verification by affidavit or otherwise of any information or material submitted; or
may require,
the applicant or registrant,
any partner of the applicant or registrant,
any officer, director, governor or trustee of the applicant or registrant or any person performing a similar function, or
any employee of the applicant or registrant,
to submit to examination under oath by a person designated by the Director.
PART XII EXEMPTIONS FROM REGISTRATION REQUIREMENTS
(1) Each of the following persons and companies is exempt from the requirement to be registered as an adviser under this Act while engaging in the business of providing advice with respect to investing in or buying or selling securities:
A person or company that engages in or holds himself, herself or itself out as engaging in the business of providing advice, either directly or through publications or other media, with respect to investing in or buying or selling securities, including any class of securities and the securities of a class of issuers, that are not purported to be tailored to the needs of anyone receiving the advice.
Such persons or companies as may be prescribed by the regulations or whose activities are prescribed by the regulations.
The regulations may prescribe conditions and restrictions that apply to an exemption under paragraph 2 of subsection (1).
If an adviser described in paragraph 1 of subsection (1) recommends investing in, buying, selling or holding a specified security or class of securities or the securities of a specified class of issuers in which any of the following has a financial or other interest, either directly or indirectly, the adviser must disclose the interest concurrently with providing the advice:
The adviser.
A partner, director or officer of the adviser.
A person or company that would be an insider of the adviser if the adviser were a reporting issuer.
For the purpose of subsection (3),
“financial or other interest” in a security includes,
ownership, beneficial or otherwise, in the security or in another security issued by the same issuer,
an option in respect of the security or in respect of another security issued by the same issuer,
a commission or other compensation received or expected to be received from any person or company in connection with a trade in the security,
a financial arrangement with any person or company regarding the security, and
a financial arrangement with any underwriter or other person or company who has an interest in the security.
(1) A person or company is exempt from the requirement to be registered under this Act to act as a dealer when trading in the following types of securities or acting as an underwriter in respect of their distribution:
Debt securities issued by or guaranteed by the Government of Canada or the government of a province or territory of Canada.
Debt securities that are,
issued by a municipal corporation in Canada for elementary, secondary or vocational school purposes,
issued or guaranteed by a municipal corporation in Canada, or
secured by or payable out of rates or taxes levied under the law of a province or territory of Canada on property in the province or territory and collectible by or through the municipality in which the property is situated.
Debt securities that are issued by a corporation established under regulations made under subsection 248 (1) of the Education Act.
A person or company is exempt from the requirement to be registered under this Act to act as a dealer when trading in or acting as an underwriter in respect of the distribution of a security evidencing indebtedness that is secured by or under a security agreement, as defined in subsection 1 (1) of the Personal Property Security Act, or that is secured in a similar manner in accordance with comparable legislation of another province or territory of Canada that provides for the granting of security in personal property.
The exemption described in subsection (2) does not apply with respect to a trade to an individual or with respect to underwriting such a trade.
[Repealed]
A person or company is exempt from the requirement to be registered under this Act to act as a dealer when trading in such types of securities as may be prescribed in the regulations that are traded in accordance with the regulations or when acting as an underwriter in respect of their distribution.
The regulations may prescribe conditions and restrictions that apply to an exemption under subsection (5).
(1) Each of the following financial institutions is exempt from the requirement to be registered under this Act to act as a dealer, underwriter, adviser or investment fund manager if the financial institution, in so acting, limits its activities to only those activities not prohibited by its governing legislation:
A bank listed in Schedule I, II or III to the Bank Act (Canada).
An association to which the Cooperative Credit Associations Act (Canada) applies or a central cooperative credit society for which an order has been made under subsection 473 (1) of that Act.
A loan corporation, trust company, trust corporation, insurance company, treasury branch, credit union, financial services cooperative or credit union central or federation that is authorized by a statute of Canada or Ontario to carry on business in Canada or Ontario, as the case may be.
Business Development Bank of Canada. ;
An exemption under subsection (1) is subject to such conditions and restrictions as may be prescribed by a regulation made by the Lieutenant Governor in Council.
Such other financial institutions as may be prescribed by regulation are exempt from the requirement to be registered under this Act to act as a dealer, underwriter, adviser or investment fund manager.
An exemption under subsection (3) is subject to such conditions and restrictions as may be prescribed by regulation.
(1) The regulations shall provide that a person or company is exempt from the requirement to be registered under this Act to act as a dealer or adviser, as the case may be, if the person or company acts as a dealer or adviser in a jurisdiction outside Canada.
The regulations may prescribe conditions and restrictions that apply to an exemption under subsection (1).
PART XIII TRADING IN SECURITIES and derivatives GENERALLY
(1) Subject to the regulations, every registered dealer who has acted as principal or agent in connection with the purchase or sale of a security or derivative shall promptly send by ordinary letter mail or deliver to the customer a written confirmation of the transaction containing the information required by the regulations.
Every person or company that has acted as an agent in connection with the purchase or sale of a security or derivative shall promptly disclose to the Commission, on receipt of a written request from the Commission, the name of every person or company from, to or through whom the security or derivative was bought or sold.
(1) The Commission may by order suspend, cancel, restrict or impose terms and conditions on the right of any person or company named or described in the order to call at a residence or telephone from a location in Ontario to a residence located in or out of Ontario for the purpose of trading in any security or derivative or in any class of securities or derivatives.
The Commission shall not make an order under subsection (1) without giving the person or company affected an opportunity to be heard. ;
In this section,
“residence” includes any building or part of a building in which the occupant resides either permanently or temporarily and any premises appurtenant thereto.
For the purposes of this section, a person or company shall be deemed conclusively to have called or telephoned where an officer, director, employee or agent of the person or company calls or telephones on its behalf. ;
(1) No person or company, with the intention of effecting a trade in a security, other than a security that carries an obligation of the issuer to redeem or purchase, or a right of the owner to require redemption or purchase, shall make any representation, written or oral, that he, she or it or any person or company,
will resell or repurchase; or
will refund all or any of the purchase price of,
such security.
No person or company, with the intention of effecting a trade in a derivative, shall make any representation, written or oral, that he, she or it or any other person or company will refund any amount paid in respect of the derivative, unless the terms of the derivative provide for a refund or provide a right to a party to require a refund.
No person or company, with the intention of effecting a trade in a security or derivative, shall give any undertaking, written or oral, relating to the future value or price of the security or derivative.
Subject to the regulations, no person or company, with the intention of effecting a trade in a security or derivative, shall, except with the written permission of the Director, make any written or oral representation that the security or derivative will be listed on an exchange or quoted on a quotation and trade reporting system, or that application has been or will be made to list the security or derivative on an exchange or quote the security or derivative on a quotation and trade reporting system, unless,
in the case of securities, application has been made to list or quote the securities and other securities issued by the same issuer are already listed on an exchange or quoted on a quotation and trade reporting system; or
the exchange or quotation and trade reporting system has granted approval to the listing or quoting of the securities or derivatives, conditional or otherwise, or has consented to, or indicated that it does not object to, the representation.
This section does not apply to a representation referred to in subsection (1) or (1.1) if the representation is contained in an enforceable written agreement and,
in the case of a representation in respect of a security, the security has a total acquisition cost of more than $50,000; or
in the case of a representation in respect of a derivative, the derivative is in a class of derivatives prescribed by the regulations.
[Repealed]
[Repealed]
[Repealed]
[Repealed]
No registrant shall use the name of another registrant on letterheads, forms, advertisements or signs, as correspondent or otherwise, unless the registrant is a partner, officer or agent of or is authorized so to do in writing by the other registrant.
(1) No person or company shall represent that he, she or it is registered under this Act unless the representation is true and, when making the representation, the person or company specifies his, her or its category of registration.
No person or company shall make a statement about any matter that a reasonable investor would consider relevant in deciding whether to enter into or maintain a trading or advising relationship with the person or company if the statement is untrue or omits information necessary to prevent the statement from being false or misleading in the circumstances in which it is made.
[Repealed]
No person or company shall make a written or oral representation that the Commission has in any way passed on the financial standing, fitness or conduct of a registrant or on the merits of an issuer or a security, derivative or underlying interest of a derivative.
(1) Where a person, or a partner or employee of a partnership, or a director, officer or employee of a company, after the person or the partnership or company has contracted as a registered dealer with any customer to buy and carry upon margin any securities of any issuer either in Canada or elsewhere, and while such contract continues, sells or causes to be sold securities of the same issuer for any account in which,
the person;
the firm or a partner thereof; or
the company or a director thereof,
has a direct or indirect interest, if the effect of such sale would, otherwise than unintentionally, be to reduce the amount of such securities in the hands of the dealer or under the dealer’s control in the ordinary course of business below the amount of such securities that the dealer should be carrying for all customers, any such contract with a customer is, at the option of the customer, voidable and the customer may recover from the dealer all money paid with interest thereon or securities deposited in respect thereof.
The customer may exercise such option by a notice to that effect sent by prepaid mail addressed to the dealer at the dealer’s address for service in Ontario.
Any person or company who places an order for the sale of a security through an agent acting for him, her or it that is a registered dealer and who,
at the time of placing the order, does not own the security; or
if acting as agent, knows the principal does not own the security,
shall, at the time of placing the order to sell, declare to the agent that he, she or it or the principal, as the case may be, does not own the security.
(1) Subject to subsection (4), voting securities of an issuer registered in the name of,
a registrant or in the name of the registrant’s nominee; or
a custodian or in the name of the custodian’s nominee, where such issuer is a mutual fund that is a reporting issuer,
that are not beneficially owned by the registrant or the custodian, as the case may be, shall not be voted by the registrant or custodian at any meeting of security holders of the issuer.
Forthwith after receipt of a copy of a notice of a meeting of security holders of an issuer, the registrant or custodian shall, where the name and address of the beneficial owner of securities registered in the name of the registrant or custodian are known, send or deliver to each beneficial owner of such security so registered at the record date for notice of meeting a copy of any notice, financial statement, information circular or other material but the registrant or custodian is not required to send or deliver such material unless the issuer or the beneficial owner of such securities has agreed to pay the reasonable costs to be incurred by the registrant or custodian in so doing.
At the request of a registrant or custodian, the person or company sending material referred to in subsection (2) shall forthwith furnish to the registrant or custodian, at the expense of the sender, the requisite number of copies of the material.
A registrant or custodian shall vote or give a proxy requiring a nominee to vote any voting securities referred to in subsection (1) in accordance with any written voting instructions received from the beneficial owner.
A registrant or custodian shall, if requested in writing by a beneficial owner, give to the beneficial owner or his, her or its nominee a proxy enabling the beneficial owner or the nominee to vote any voting securities referred to in subsection (1).
For the purpose of this section,
“custodian” means a custodian of securities issued by a mutual fund held for the benefit of plan holders under a custodial agreement or other arrangement.
(1) The Commission may, after giving the registered dealer an opportunity to be heard, and upon being satisfied that the registered dealer’s past conduct with respect to the use of advertising and sales literature affords reasonable grounds for belief that it is necessary for the protection of the public to do so, order that the registered dealer shall deliver to the Commission at least seven days before it is used, copies of all advertising and sales literature which the registered dealer proposes to use in connection with trading in securities or derivatives. ;
For the purposes of this section,
“advertising” includes television and radio commercials, newspaper and magazine advertisements and all other sales material generally disseminated through the communications media; (“annonces publicitaires”)
“sales literature” includes audio and visual recordings in any media, written matter and all other material designed for use in a presentation to a purchaser, whether such material is given or shown to the purchaser, but does not include,
preliminary prospectuses,
prospectuses, and
disclosure documents, in respect of derivatives, that satisfy the requirements prescribed by the regulations. (“documentation commerciale”) ;
Where the Commission has issued an order pursuant to subsection (1), the Director may prohibit the use of the advertising and sales literature so delivered or may require that deletions or changes be made prior to its use.
[Repealed]
PART XIV PROSPECTING SYNDICATES
(1) Upon the filing of a prospecting syndicate agreement and the issuance of a receipt therefor by the Director, the liability of the members of the syndicate or parties to the agreement is limited to the extent provided by the terms of the agreement where,
the sole purpose of the syndicate is the financing of prospecting expeditions, preliminary mining development, or the acquisition of mining properties, or any combination thereof;
the agreement clearly sets out,
the purpose of the syndicate,
the particulars of any transaction effected or in contemplation involving the issue of units for a consideration other than cash,
the maximum amount, not exceeding 25 per cent of the sale price, that may be charged or taken by a person or company as commission upon the sale of units in the syndicate,
the maximum number of units in the syndicate, not exceeding 33 1/3 per cent of the total number of units of the syndicate, that may be issued in consideration of the transfer to the syndicate of mining properties,
the location of the principal office of the syndicate and that the principal office shall at all times be maintained in Ontario and that the Director and the members of the syndicate shall be notified immediately of any change in the location of the principal office,
that a person or company holding mining properties for the syndicate shall execute a declaration of trust in favour of the syndicate with respect to such mining properties,
that after the sale for cash of any issued units of the syndicate no mining properties shall be acquired by the syndicate other than by staking unless such acquisition is approved by members of the syndicate holding at least two-thirds of the issued units of the syndicate that have been sold for cash,
that the administrative expenditures of the syndicate, including, in addition to any other items, salaries, office expenses, advertising and commissions paid by the syndicate with respect to the sale of its units, shall be limited to one-third of the total amount received by the treasury of the syndicate from the sale of its units,
that a statement of the receipts and disbursements of the syndicate shall be furnished to the Director and to each member annually,
that 90 per cent of the vendor units of the syndicate shall be escrowed units and may be released upon the consent of the Director and that any release of such units shall not be in excess of one vendor unit for each unit of the syndicate sold for cash,
that no securities, other than those of the syndicate’s own issue, and no mining properties owned by the syndicate or held in trust for the syndicate shall be disposed of unless such disposal is approved by members of the syndicate holding at least two-thirds of the issued units of the syndicate other than escrowed units; and
the agreement limits the capital of the syndicate to a sum not exceeding $250,000.
The Director may in his or her discretion issue a receipt for a prospecting syndicate agreement filed under this section and is not required to determine whether it is in conformity with clauses (1) (a), (b) and (c).
After a receipt is issued by the Director for a prospecting syndicate agreement, the requirements of the Business Names Act as to filing do not apply to the prospecting syndicate.
No registered dealer shall trade in a security issued by a prospecting syndicate either as agent for the prospecting syndicate or as principal.
The Director shall not refuse to issue a receipt under subsection (1) without giving the person or company who filed the prospecting syndicate agreement an opportunity to be heard.
PART XV PROSPECTUSES — DISTRIBUTION
“distribution” means only a distribution that is a distribution to the public.
(1) No person or company shall trade in a security on his, her or its own account or on behalf of any other person or company if the trade would be a distribution of the security, unless a preliminary prospectus and a prospectus have been filed and receipts have been issued for them by the Director.
A preliminary prospectus and a prospectus may be filed in accordance with this Part to enable the issuer to become a reporting issuer, despite the fact that no distribution is contemplated.
The regulations may prescribe circumstances in which a receipt for a preliminary prospectus or a prospectus is deemed to be issued by the Director.
(1) A preliminary prospectus shall substantially comply with the requirements of Ontario securities law respecting the form and content of a prospectus, except that the report or reports of the auditor or accountant required by the regulations need not be included. ;
A preliminary prospectus may exclude information with respect to the price to the underwriter and offering price of any securities and other matters dependent upon or relating to such prices.
The Director shall issue a receipt for a preliminary prospectus forthwith upon the filing thereof.
(1) A prospectus shall provide full, true and plain disclosure of all material facts relating to the securities issued or proposed to be distributed and shall comply with the requirements of Ontario securities law. ;
The prospectus shall contain or be accompanied by such financial statements, reports or other documents as are required by this Act or the regulations.
(1) Where a material adverse change occurs after a receipt is obtained for a preliminary prospectus filed in accordance with subsection 53 (1) and before the receipt for the prospectus is obtained or, where a material change occurs after the receipt for the prospectus is obtained but prior to the completion of the distribution under such prospectus, an amendment to such preliminary prospectus or prospectus, as the case may be, shall be filed as soon as practicable and in any event within ten days after the change occurs. ;
If, after a receipt for a prospectus or for an amendment to a prospectus is issued but before the distribution under the prospectus or amendment is completed, securities in addition to those previously disclosed in the prospectus or amendment are to be distributed, the issuer making the distribution shall file an amendment to the prospectus disclosing the additional securities as soon as practicable and, in any event, within 10 days after the decision to increase the number of securities offered is made.
Unless otherwise permitted by regulation, an issuer shall not proceed with a distribution or an additional distribution until a receipt is issued for an amendment to the prospectus that must be filed under subsection (1) or (2).
An amendment to a preliminary prospectus referred to in subsection (1) shall, forthwith after it has been filed, be forwarded to each recipient of the preliminary prospectus according to the record maintained under section 67.
(1) Subject to subsection (3) of this section and subsection 63 (2), and subject to any waiver or variation consented to in writing by the Director, a prospectus filed under subsection 53 (1) or subsection 62 (1) shall contain a certificate in the prescribed form, signed by the chief executive officer, the chief financial officer, and, on behalf of the board of directors, any two directors of the issuer, other than the foregoing, duly authorized to sign, and any person or company who is a promoter of the issuer. ; ;
Subject to subsection (3) of this section and subsection 63 (2), a prospectus filed under subsection 53 (2) shall contain a certificate in the prescribed form, signed by the chief executive officer, the chief financial officer, and, on behalf of the board of directors, any two directors of the issuer, other than the foregoing, duly authorized to sign, and any person or company who is a promoter of the issuer. ;
Where the issuer has only three directors, two of whom are the chief executive officer and the chief financial officer, the certificate may be signed by all the directors of the issuer.
Where the Director is satisfied upon evidence or on submissions that either, or both of, the chief executive officer or chief financial officer of the issuer is for adequate cause not available to sign a certificate in a prospectus, the Director may permit the certificate to be signed by any other responsible officer or officers of the issuer in lieu of either, or both of, the chief executive officer or chief financial officer.
With the consent of the Director, a promoter or a guarantor need not sign the certificate in a prospectus. ;
The Director may, in his or her discretion, require any person or company who was a promoter of the issuer within the two preceding years or who is a guarantor of the securities being distributed to sign the certificate required by subsection (1) or (2) subject to such conditions as the Director may consider proper. ;
With the consent of the Director, a promoter or a guarantor may sign a certificate in a prospectus by his, her or its agent duly authorized in writing. ;
(1) Subject to subsection 63 (2), where there is an underwriter, a prospectus shall contain a certificate in the prescribed form, signed by the underwriter or underwriters who, with respect to the securities offered by the prospectus, are in a contractual relationship with the issuer or security holder whose securities are being offered by the prospectus. ;
With the consent of the Director, an underwriter may sign a certificate in a prospectus by his, her or its agent duly authorized in writing.
The Director shall not issue a receipt for a prospectus or an amendment to a prospectus if it appears to the Director that,
the prospectus or any document required to be filed with it,
does not comply in any substantial respect with any of the requirements of this Act or the regulations,
contains any statement, promise, estimate or forward-looking information that is misleading, false or deceptive, or
contains a misrepresentation;
an unconscionable consideration has been paid or given or is intended to be paid or given for any services or promotional purposes or for the acquisition of property;
the aggregate of,
the proceeds from the sale of the securities under the prospectus that are to be paid into the treasury of the issuer, and
the other resources of the issuer,
is insufficient to accomplish the purpose of the issue stated in the prospectus;
the issuer cannot reasonably be expected to be financially responsible in the conduct of its business because of the financial condition of,
the issuer,
any of the issuer’s officers, directors, promoters, or control persons, or
the investment fund manager of the issuer or any of the investment fund manager’s officers, directors or control persons;
the business of the issuer may not be conducted with integrity and in the best interests of the security holders of the issuer because of the past conduct of,
the issuer,
any of the issuer’s officers, directors, promoters, or control persons, or
the investment fund manager of the issuer or any of the investment fund manager’s officers, directors or control persons;
a person or company that has prepared or certified any part of the prospectus, or that is named as having prepared or certified a report or valuation used in connection with the prospectus, is not acceptable;
an escrow or pooling agreement in the form that the Director considers necessary or advisable with respect to the securities has not been entered into; or
adequate arrangements have not been made for the holding in trust of the proceeds payable to the issuer from the sale of the securities pending the distribution of the securities.
The Director shall not refuse to issue a receipt under subsection (1) or (2) without giving the person or company who filed the prospectus an opportunity to be heard.
Where it appears to the Director that a preliminary prospectus, pro forma prospectus, or prospectus raises a material question involving the public interest under subsection (1) or a new or novel question of interpretation under subsection (2) that might result in the Director refusing to issue a receipt under subsection (1) or (2), the Director may refer the question to the Commission for determination.
The Director shall state the question in writing setting out the facts upon which the question is based.
The question, together with any additional material, shall be lodged by the Director with the Commission, and a copy of the question shall forthwith be served upon any interested person or company. ;
The Commission, after giving the parties an opportunity to be heard, shall consider and determine the question and refer the matter back to the Director for final consideration under subsections (1) and (2).
Subject to any order of the Divisional Court made under section 9, the decision of the Commission on the question is binding on the Director.
(1) In this section,
“lapse date” means, with reference to a security that is being distributed under subsection 53 (1) or this section, the date that is 12 months after the date of the most recent prospectus relating to the security.
No distribution of a security to which subsection 53 (1) applies shall continue after the lapse date, unless a new prospectus that complies with this Part is filed and a receipt for the new prospectus is obtained from the Director.
A distribution may be continued for a further twelve months after a lapse date if,
a pro forma prospectus prepared in accordance with the regulations is filed not less than thirty days prior to the lapse date of the previous prospectus;
a prospectus is filed not later than ten days following the lapse date of the previous prospectus; and
a receipt for the prospectus is obtained from the Director within the twenty days following the lapse date of the previous prospectus. ;
The continued distribution of securities after the lapse date does not contravene subsection (1.1) unless and until any of the conditions of subsection (2) are not complied with. ;
Subject to any extension granted under subsection (5), all trades completed in reliance upon subsection (2) after the lapse date may be cancelled at the option of the purchaser within ninety days of the purchaser’s first knowledge of the failure to comply with such conditions where any of the conditions to the continuation of a distribution under subsection (2) are not complied with.
The Commission may, upon an application of a reporting issuer, extend, subject to such terms and conditions as it may impose, the times provided by subsection (2) where in its opinion it would not be prejudicial to the public interest to do so.
(1) A person or company may, if permitted by the regulations, file a short form of preliminary prospectus, short form of prospectus, pro forma prospectus, preliminary simplified prospectus, simplified prospectus or pro forma simplified prospectus under section 53 or 62 in the prescribed form and any such prospectus that complies with the applicable regulations shall, for the purposes of section 56, be considered to provide sufficient disclosure of all material facts relating to the securities issued or proposed to be distributed under the prospectus.
A short form prospectus may contain one or more forms of certificate to be signed as alternatives to the forms of certificate set out in subsections 58 (1) and (2) and subsection 59 (1) and, where any such certificate in a short form prospectus is used in accordance with the regulations, it is not necessary to use the alternative certificate required by subsections 58 (1) and (2) and subsection 59 (1), as the case may be.
Where a summary statement is filed with a prospectus, the Director shall not issue a receipt for the prospectus if it appears to the Director that the summary statement does not comply with the regulations applicable thereto.
A summary statement filed with a prospectus for which a receipt has been issued may be sent or delivered by a dealer to a purchaser of securities instead of a prospectus as required in section 71, and, where a dealer so elects, the provisions of sections 71 and 133 with respect to a prospectus apply with necessary modifications to a summary statement.
Every summary statement sent or delivered to a purchaser shall contain a statement informing the purchaser that a copy of the prospectus which was filed with the summary statement will be provided to the purchaser on request, and each person or company who signs or causes to be signed, as the case may be, the certificate contained in the prospectus shall ensure compliance with any such request.
Where, during the distribution or distribution to the public of a security under a prospectus, an order is made to cease trading in the security, or the receipt issued by the Director for the prospectus is revoked or the prospectus lapses or the use of a prospectus is otherwise prohibited by Ontario securities law or an order of a court, a summary statement filed with the prospectus shall cease to have force and effect for the purposes of section 71 unless the Director otherwise orders. ;
Nothing in this section shall be construed to provide relief from liability arising under section 130 where a misrepresentation is contained in a prescribed short form prospectus and, for the purposes of section 130, where a misrepresentation is contained in a summary statement filed with a prospectus, the misrepresentation shall be deemed to be contained in the prospectus.
(1) Where a person or company proposing to make a distribution of previously issued securities of an issuer is unable to obtain from the issuer of the securities information or material that is necessary for the purpose of complying with this Part or the regulations, the Director may order the issuer of the securities to furnish to the person or company that proposes to make the distribution such information and material as the Director considers necessary for the purposes of the distribution, upon such terms and subject to such conditions as the Director considers proper, and all such information and material may be used by the person or company to whom it is furnished for the purpose of complying with this Part and the regulations.
Where a person or company proposing to make a distribution of previously issued securities of an issuer is unable to obtain any or all of the signatures to the certificates required by this Act or the regulations, or otherwise to comply with this Part or the regulations, the Director may, upon being satisfied that all reasonable efforts have been made to comply with this Part and the regulations and that no person or company is likely to be prejudicially affected by such failure to comply, make such order waiving any of the provisions of this Part or the regulations as the Director considers advisable, upon such terms and subject to such conditions as he or she considers proper.
, 64.2
PART XVI DISTRIBUTION — GENERALLY
(1) In this section,
“waiting period” means the period prescribed by regulation or, if no period is prescribed, the period between the Director’s issuance of a receipt for a preliminary prospectus relating to the offering of a security and the Director’s issuance of a receipt for the prospectus. ;
Despite section 53, but subject to Part XIII, it is permissible during the waiting period,
to distribute a notice, circular, advertisement or letter to or otherwise communicate with any person or company identifying the security proposed to be issued, stating the price thereof, if then determined, the name and address of a person or company from whom purchases of the security may be made and containing such further information as may be permitted or required by the regulations, if every such notice, circular, advertisement, letter or other communication states the name and address of a person or company from whom a preliminary prospectus may be obtained;
to distribute a preliminary prospectus; and
to solicit expressions of interest from a prospective purchaser if, prior to such solicitation or forthwith after the prospective purchaser indicates an interest in purchasing the security, a copy of the preliminary prospectus is forwarded to him, her or it.
Any dealer distributing a security to which section 65 applies shall, in addition to the requirements of clause 65 (2) (c), send a copy of the preliminary prospectus to each prospective purchaser who, without solicitation, indicates an interest in purchasing the security and requests a copy of such preliminary prospectus.
Any dealer distributing a security to which section 65 applies shall maintain a record of the names and addresses of all persons and companies to whom the preliminary prospectus has been forwarded.
Where it appears to the Director that a preliminary prospectus is defective in that it does not substantially comply with the requirements of Ontario securities law as to form and content, the Director may, without giving notice, order that the trading permitted by subsection 65 (2) in the security to which the preliminary prospectus relates shall cease until a revised preliminary prospectus satisfactory to the Director is filed and forwarded to each recipient of the defective preliminary prospectus according to the record maintained under section 67. ;
From the date of the issuance by the Director of a receipt for a prospectus relating to a security, a person or company trading in the security in a distribution, either on his, her or its own account or on behalf of any other person or company, may distribute the prospectus, any document filed with or referred to in the prospectus and any notice, circular, advertisement or letter of the nature described in clause 65 (2) (a) or in the regulations, but shall not distribute any other printed or written material respecting the security that is prohibited by the regulations.
(1) Where it appears to the Commission, after the filing of a prospectus under this Part and the issuance of a receipt therefor, that any of the circumstances set out in subsection 61 (2) exist, the Commission may order that the distribution of the securities under the prospectus shall cease.
No order shall be made under subsection (1) without a hearing unless in the opinion of the Commission the length of time required for a hearing could be prejudicial to the public interest, in which event a temporary order may be made which shall expire fifteen days from the date of the making thereof unless the hearing is commenced in which case the Commission may extend the order until the hearing is concluded.
A notice of every order made under this section shall be served upon the issuer to whose securities the prospectus relates, and forthwith upon the receipt of the notice,
distribution of the securities under prospectus by the person or company named in the order shall cease; and
any receipt issued by the Director for the prospectus is revoked.
(1) A dealer not acting as agent of the purchaser who receives an order or subscription for a security offered in a distribution to which subsection 53 (1) or section 62 is applicable shall, unless the dealer has previously done so, send by prepaid mail or deliver to the purchaser the latest prospectus and any amendment to the prospectus filed either before entering into an agreement of purchase and sale resulting from the order or subscription or not later than midnight on the second day, exclusive of Saturdays, Sundays and holidays, after entering into such agreement.
Subsection (1) does not apply to the dealer in respect of a purchase and sale of an investment fund security offered in a distribution described in that subsection if the regulations prescribe a disclosure document that is required in respect of the purchase and sale and the time and manner in which the disclosure document is to be sent or delivered to a purchaser.
Subsection (1) does not apply in respect of a distribution of a prescribed investment fund security trading on an exchange or an alternative trading system.
A dealer acting as agent of the purchaser who receives an order from the purchaser for a purchase of a prescribed investment fund security trading on an exchange or an alternative trading system shall send or deliver to the purchaser a prescribed disclosure document in accordance with the regulations.
An agreement of purchase and sale referred to in subsection (1) is not binding upon the purchaser if the dealer from whom the purchaser purchases the security receives written or telegraphic notice evidencing the intention of the purchaser not to be bound by the agreement of purchase and sale not later than midnight on the second day, exclusive of Saturdays, Sundays and holidays, after receipt by the purchaser of,
the latest prospectus and any amendment to the prospectus; or
the prescribed disclosure document referred to in subsection (1.1).
A purchase referred to in subsection (1.3) is not binding on the purchaser in the circumstances prescribed by the regulations.
Subsection (2) does not apply if the purchaser is a registrant or if the purchaser sells or otherwise transfers beneficial ownership of the security referred to in subsection (2), otherwise than to secure indebtedness, before the expiration of the time referred to in subsection (2).
For the purpose of this section, where the latest prospectus, any amendment to the prospectus or the prescribed disclosure document referred to in subsection (1.1) or (1.3) is sent by prepaid mail, it shall be deemed conclusively to have been received in the ordinary course of mail by the person or company to whom it was addressed. ;
The receipt of the latest prospectus, any amendment to the prospectus or the prescribed disclosure document referred to in subsection (1.1) by a dealer who is acting as agent of or who thereafter commences to act as agent of the purchaser with respect to the purchase of a security to which subsection (1) or (1.1) applies shall, for the purpose of this section, be receipt by the purchaser as of the date on which the agent received such latest prospectus, amendment to the prospectus or prescribed disclosure document, as the case may be.
The receipt of the notice referred to in subsection (2) by a dealer who acted as agent of the vendor with respect to the sale of the security referred to in subsection (1) shall, for the purpose of this section, be receipt by the vendor as of the date on which the agent received such notice.
For the purpose of this section, except subsection (1.3), a dealer shall not be considered to be acting as agent of the purchaser unless the dealer is acting solely as agent of the purchaser with respect to the purchase and sale in question and has not received and has no agreement to receive compensation from or on behalf of the vendor with respect to the purchase and sale. ;
The onus of proving that the time for giving notice under subsection (2) has expired is upon the dealer from whom the purchaser has agreed to purchase the security.
Part XVII Exemptions from the Prospectus requirement
In this Part,
The prospectus requirement does not apply to a distribution of any of the following debt securities:
Debt securities issued or guaranteed by the Government of Canada or the government of a province or territory of Canada.
Debt securities that are,
issued by a municipal corporation in Canada for elementary, secondary or vocational school purposes,
issued or guaranteed by a municipal corporation in Canada, or
secured by or payable out of rates or taxes levied under the law of a province or territory of Canada on property in the province or territory and collectible by or through the municipality in which the property is situated.
Debt securities that are issued by a corporation established under regulations made under subsection 248 (1) of the Education Act.
(1) The prospectus requirement does not apply to a distribution of a debt security that is issued or guaranteed by any of the following financial institutions:
A bank listed in Schedule I, II or III to the Bank Act (Canada).
An association to which the Cooperative Credit Associations Act (Canada) applies or a central cooperative credit society for which an order has been made under subsection 473 (1) of that Act.
A loan corporation, trust company, trust corporation, insurance company, treasury branch, credit union, financial services cooperative or credit union central or federation that is authorized by a statute of Canada or Ontario to carry on business in Canada or Ontario, as the case may be.
Such other financial institutions as may be prescribed by the regulations. ;
The exemption under paragraph 1, 2 or 3 of subsection (1) from the prospectus requirement does not apply to debt securities issued or guaranteed by a financial institution described in the paragraph that are subordinate in right of payment to deposits held by the issuer or guarantor of those debt securities.
The exemption under subsection (1) with respect to a financial institution described in paragraph 1, 2 or 3 of that subsection is subject to such conditions and restrictions as may be prescribed by a regulation made by the Lieutenant Governor in Council.
The exemption under subsection (1) with respect to a financial institution referred to in paragraph 4 of that subsection is subject to such conditions and restrictions as may be prescribed by the regulations.
Without limiting the generality of subsection (4), the regulations may prescribe reporting requirements that apply in connection with the exemption under subsection (1) with respect to a financial institution referred to in paragraph 4 of that subsection.
The prospectus requirement does not apply to a distribution of any of the following securities:
Securities issued by a corporation to which the Co-operative Corporations Act applies.
Membership shares and patronage shares, within the meaning of the Credit Unions and Caisses Populaires Act, 2020, of a credit union.
Securities issued to its members by a credit union to which the Credit Unions and Caisses Populaires Act, 2020 applies and for which an offering statement is sought under that Act.
Securities issued to its members or to the members of its member credit unions by a central to which the Credit Unions and Caisses Populaires Act, 2020 applies and for which an offering statement is sought under that Act. ;
(1) Subject to subsection (2), the prospectus requirement does not apply to a distribution of a security evidencing indebtedness that is secured by or under a security agreement, as defined in subsection 1 (1) of the Personal Property Security Act, or that is secured in a similar manner in accordance with comparable legislation of another province or territory of Canada that provides for the granting of security in personal property.
The exemption under subsection (1) from the prospectus requirement does not apply to a distribution to an individual.
[Repealed]
(1) For the purposes of this section,
“accredited investor” means,
a financial institution described in paragraph 1, 2 or 3 of subsection 73.1 (1),
the Business Development Bank of Canada,
a person or company registered under the securities legislation of a province or territory of Canada as an adviser or dealer, except as otherwise prescribed by the regulations,
the Government of Canada, the government of a province or territory of Canada, or any Crown corporation, agency or wholly owned entity of the Government of Canada or of the government of a province or territory of Canada,
a municipality, public board or commission in Canada and a metropolitan community, school board, the Comité de gestion de la taxe scolaire de l’Île de Montréal or an intermunicipal management board in Quebec,
any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government,
a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada) or a pension commission or similar regulatory authority of a province or territory of Canada,
a person or company that is recognized or designated by the Commission as an accredited investor,
such other persons or companies as may be prescribed by the regulations.
The prospectus requirement does not apply to a distribution of a security if the purchaser purchases the security as principal and is an accredited investor.
The regulations may prescribe circumstances in which a person or company is deemed to be purchasing a security as principal for the purposes of an exemption under this section.
The regulations may prescribe conditions and restrictions that apply to an exemption under this section.
Without limiting the generality of subsection (4), the regulations may prescribe reporting requirements that apply in connection with an exemption under this section.
For the purposes of the definition of “accredited investor” in subsection (1), the regulations may define “foreign jurisdiction” and “subsidiary”.
(1) For the purposes of this section,
“private issuer” has the meaning prescribed by the regulations.
The prospectus requirement does not apply to a distribution of a security of a private issuer to a person or company who purchases the security as principal and who satisfies the criteria prescribed by regulation.
The regulations may prescribe conditions and restrictions that apply to an exemption under this section.
(1) For the purposes of this section,
“government incentive security” means a security that enables the holder to receive a grant or other monetary or tax benefit pursuant to a provision of an Act or regulation of Canada, Ontario or another province or territory of Canada, and that is prescribed by the regulations as a government incentive security.
The prospectus requirement does not apply to a distribution of a government incentive security.
The regulations may prescribe conditions and restrictions that apply to an exemption under this section.
Without limiting the generality of subsection (3), the regulations may prescribe reporting requirements that apply in connection with an exemption under this section.
Without limiting the generality of subsection (1), the regulations may prescribe reporting requirements that apply in connection with an exemption authorized by that subsection.
(1) The regulations may provide that the first trade in a security previously distributed under an exemption from the prospectus requirement is deemed to be a distribution unless it is carried out in accordance with the regulations.
Without limiting the generality of subsection (1), the regulations shall prescribe the circumstances in which a distribution by a control person is exempted from the prospectus requirement.
(1) Upon the application of an interested person or company, the Commission may make the following orders if the Commission is satisfied that to do so would not be prejudicial to the public interest:
An order that any person or company is not subject to section 25.
An order that any trade, intended trade, security, person or company is not subject to section 53. ;
In an order under subsection (1), the Commission may impose such terms and conditions as are considered necessary. ;
Where doubt exists whether a distribution of any security has been concluded or is currently in progress, the Commission may determine the question and make an order accordingly. ;
A decision of the Commission under this section is final and there is no appeal therefrom.
PART XVIII CONTINUOUS DISCLOSURE
(1) Subject to subsection (3), where a material change occurs in the affairs of a reporting issuer, it shall forthwith issue and file a news release authorized by a senior officer disclosing the nature and substance of the change. ;
Subject to subsection (3), the reporting issuer shall file a report of such material change in accordance with the regulations as soon as practicable and in any event within ten days of the date on which the change occurs.
A reporting issuer may, instead of complying with subsection (1), promptly file with the Commission the report required under subsection (2), marked as confidential, and its written reasons for doing so if,
the reporting issuer reasonably believes that a disclosure required under subsections (1) and (2) would be unduly detrimental to its interests; or
the material change consists of a decision made by the senior management of the reporting issuer to implement a change and the senior management,
believes that confirmation by the board of directors of the decision to implement the change is probable, and
has no reason to believe that any person or company with knowledge of the material change has purchased or sold the reporting issuer’s securities or traded a related derivative.
Where a report has been filed with the Commission under subsection (3), the reporting issuer shall advise the Commission in writing where it believes the report should continue to remain confidential within ten days of the date of filing of the initial report and every ten days thereafter until the material change is generally disclosed in the manner referred to in subsection (1) or, if the material change consists of a decision of the type referred to in clause (3) (b), until that decision has been rejected by the board of directors of the issuer.
A reporting issuer that has filed a report under subsection (3) shall promptly disclose the material change in the manner referred to in subsection (1) if the reporting issuer becomes aware or has reasonable grounds to believe that a person or company having knowledge of the material change is purchasing or selling securities of the reporting issuer or trading a related derivative.
(1) No person or company in a special relationship with an issuer shall purchase or sell securities of the issuer with the knowledge of a material fact or material change with respect to the issuer that has not been generally disclosed. ;
No issuer and no person or company in a special relationship with an issuer shall inform, other than in the necessary course of business, another person or company of a material fact or material change with respect to the issuer before the material fact or material change has been generally disclosed. ;
No person or company that is considering or evaluating whether, or that proposes,
to make a take-over bid, as defined in Part XX, for the securities of an issuer;
to become a party to a reorganization, amalgamation, merger, arrangement or similar business combination with an issuer; or
to acquire a substantial portion of the property of an issuer,
shall inform another person or company of a material fact or material change with respect to the issuer before the material fact or material change has been generally disclosed except where the information is given in the necessary course of business relating to the take-over bid, business combination or acquisition. ; ;
No issuer, no person or company in a special relationship with an issuer, and no person or company that is considering or evaluating whether, or that proposes to take one or more of the actions described in clause (3) (a), (b) or (c) shall recommend or encourage, other than in the necessary course of business, another person or company to purchase or sell securities of the issuer with the knowledge of a material fact or material change with respect to the issuer that has not been generally disclosed.
For the purposes of this section,
“insider” includes a person or company that would be an insider of an issuer if the issuer were a reporting issuer; (“initié”)
“issuer” means,
a reporting issuer, or
any other issuer whose securities are publicly traded; (“émetteur”)
“person or company in a special relationship with an issuer” means,
a person or company that is an insider, affiliate or associate of,
the issuer,
a person or company that is considering or evaluating whether to make a take-over bid, as defined in Part XX, or that proposes to make a take-over bid, as defined in Part XX, for the securities of the issuer, or
a person or company that is considering or evaluating whether to become a party, or that proposes to become a party, to a reorganization, amalgamation, merger or arrangement or similar business combination with the issuer or to acquire a substantial portion of its property,
a person or company that is engaging in any business or professional activity, that is considering or evaluating whether to engage in any business or professional activity, or that proposes to engage in any business or professional activity if the business or professional activity is,
with or on behalf of the issuer, or
with or on behalf of a person or company described in subclause (a) (ii) or (iii),
a person who is a director, officer or employee of,
the issuer,
a subsidiary of the issuer,
a person or company that controls, directly or indirectly, the issuer, or
a person or company described in subclause (a) (ii) or (iii) or clause (b),
a person or company that learns of a material fact or material change with respect to the issuer from any other person or company described in this subsection, including a person or company described in this clause, and knows or ought reasonably to have known that the other person or company is a person or company in such a relationship; (“personne ou compagnie ayant des rapports particuliers avec un émetteur assujetti”) ; ; ;
For the purpose of subsections (1) and (3.1), a security of the issuer shall be deemed to include,
a put, call, option or other right or obligation to purchase or sell securities of the issuer;
a security, the market price of which varies materially with the market price of the securities of the issuer; or
a related derivative. ; ; ;
(1) Every reporting issuer that is not a mutual fund shall file within sixty days of the date to which it is made up an interim financial report,
where the reporting issuer has not completed its first financial year, for the periods commencing with the beginning of that year and ending nine, six and three months respectively before the date on which that year ends, but no interim financial report is required to be filed for any period that is less than three months in length;
where the reporting issuer has completed its first financial year, to the end of each of the three-month, six-month and nine-month periods of the current financial year that commenced immediately following the last financial year, including a comparative statement to the end of each of the corresponding periods in the last financial year,
made up and certified as required by the regulations and in accordance with generally accepted accounting principles. ;
Every mutual fund in Ontario shall file within sixty days of the date to which it is made up an interim financial report,
where the mutual fund in Ontario has not completed its first financial year, for the period commencing with the beginning of that year and ending six months before the date on which that year ends but, if the first financial year is less than six months in length, no interim financial report is required to be filed;
where the mutual fund in Ontario has completed its first financial year, for the six-month period of the current financial year that commenced immediately following the last financial year,
made up and certified as required by the regulations and in accordance with generally accepted accounting principles. ; ;
(1) Every reporting issuer that is not a mutual fund and every mutual fund in Ontario shall file annually within 140 days from the end of its last financial year comparative financial statements relating separately to,
the period that commenced on the date of incorporation or organization and ended as of the close of the first financial year or, if the reporting issuer or mutual fund has completed a financial year, the last financial year, as the case may be; and
the period covered by the financial year next preceding the last financial year, if any,
made up and certified as required by the regulations and in accordance with generally accepted accounting principles.
Every financial statement referred to in subsection (1) shall be accompanied by a report of the auditor of the reporting issuer or mutual fund prepared in accordance with the regulations.
The auditor of a reporting issuer or mutual fund shall make such examinations as will enable the auditor to make the report required by subsection (2).
For the purposes of this Part,
“auditor”, where used in relation to the reporting issuer or mutual fund, includes the auditor of the reporting issuer or mutual fund and any other independent public accountant. ;
Despite subsection (1), a reporting issuer or mutual fund in Ontario is not required to send a copy of the financial statement to a security holder who holds its evidence of indebtedness only.
If the laws of a reporting issuer’s jurisdiction of incorporation, organization or continuance impose requirements corresponding to the requirements in subsections (1) and (2), compliance with the requirements imposed by that jurisdiction shall be deemed to be compliance with the requirements in subsections (1) and (2).
Upon the application of a reporting issuer or other interested person or company or upon the motion of the Commission, the Commission may, where in the opinion of the Commission to do so would not be prejudicial to the public interest, make an order on such terms and conditions as the Commission may impose,
[Repealed]
exempting, in whole or in part, any reporting issuer from a requirement of this Part or the regulations relating to a requirement of this Part,
if such requirement conflicts with a requirement of the laws of the jurisdiction under which the reporting issuer is incorporated, organized or continued,
if the reporting issuer ordinarily distributes financial information to holders of its securities in a form, or at times, different from those required by this Part, or
if otherwise satisfied in the circumstances of the particular case that there is adequate justification for so doing. ; ;
(1) Where the management of a reporting issuer is required to send an information circular under clause 86 (1) (a), the reporting issuer shall forthwith file a copy of such information circular certified in accordance with the regulations.
In any case where subsection (1) is not applicable, the reporting issuer shall file annually within 140 days from the end of its last financial year a report prepared and certified in accordance with the regulations.
Where the laws of the jurisdiction in which the reporting issuer was incorporated, organized or continued require the reporting issuer to file substantially the same information in that jurisdiction as is required by this Part, the reporting issuer may comply with the filing requirements of this Part by filing copies of the news release, timely disclosure report, information circular or financial statements and auditor’s report, as the case may be, required by that jurisdiction provided such releases, reports, circulars or statements are manually signed or certified in accordance with the regulations. ;
The Commission may publish a list of reporting issuers who are in default of any requirement of this Act or the regulations.
[Repealed]
PART XIX PROXIES AND PROXY SOLICITATION
In this Part,
“information circular” means an information circular prepared in accordance with the regulations; (“circulaire d’information”)
“solicit” and “solicitation” include,
any request for a proxy whether or not accompanied by or included in a form of proxy,
any request to execute or not to execute a form of proxy or to revoke a proxy,
the sending or delivery of a form of proxy or other communication to a security holder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy,
the sending or delivery of a form of proxy to a security holder under section 85,
but do not include,
the sending or delivery of a form of proxy to a security holder in response to an unsolicited request made by the security holder or on the security holder’s behalf,
the performance by any person or company of ministerial acts or professional services on behalf of a person or company soliciting a proxy, or
such other activities as may be prescribed in the regulations. (“solliciter”, “sollicitation”) ; ;
Subject to section 88, if the management of a reporting issuer gives or intends to give to holders of its voting securities notice of a meeting, the management shall, concurrently with or prior to giving the notice to the security holders whose latest address as shown on the books of the reporting issuer is in Ontario, send to each such security holder who is entitled to notice of meeting, at the security holder’s latest address as shown on the books of the reporting issuer, a form of proxy for use at the meeting that complies with the regulations. ;
in the case of a solicitation by or on behalf of the management of a reporting issuer, an information circular, either as an appendix to or as a separate document accompanying the notice of the meeting, is sent to each such security holder of the reporting issuer whose proxy is solicited at the security holder’s latest address as shown on the books of the reporting issuer; or
in the case of any other solicitation, the person or company making the solicitation, concurrently with or prior thereto, delivers or sends an information circular to each such security holder whose proxy is solicited. ;
Subsection (1) does not apply to,
any solicitation, otherwise than by or on behalf of the management of a reporting issuer, where the total number of security holders whose proxies are solicited is not more than fifteen, two or more persons or companies who are the joint registered owners of one or more securities being counted as one security holder;
any solicitation, otherwise than by or on behalf of the management of a reporting issuer, in such other circumstances as may be prescribed in the regulations;
any solicitation by a person or company made under section 49; or
any solicitation by a person or company in respect of securities of which he, she or it is the beneficial owner. ;
The chair at a meeting has the right not to conduct a vote by way of ballot on any matter or group of matters in connection with which the form of proxy has provided a means whereby the person or company whose proxy is solicited may specify how such person or company wishes the securities registered in his, her or its name to be voted unless,
a ballot is demanded by any security holder present at the meeting in person or represented thereat by proxy;
proxies requiring that the securities represented thereby be voted against what would otherwise be the decision of the meeting in relation to such matters or group of matters total more than 5 per cent of all the voting rights attached to all the securities entitled to be voted and be represented at the meeting; or
the circumstances prescribed by the regulations exist. ;
(1) Where a reporting issuer is complying with the requirements of the laws of the jurisdiction under which it is incorporated, organized or continued and the requirements are substantially similar to the requirements of this Part, the requirements of this Part do not apply.
Subject to subsection (1), upon the application of any interested person or company, the Commission may,
if a requirement of this Part conflicts with a requirement of the laws of the jurisdiction under which the reporting issuer is incorporated, organized or continued; or
if otherwise satisfied in the circumstances of the particular case that there is adequate justification for so doing,
make an order on such terms and conditions as the Commission may impose, exempting, in whole or in part, a person or company from the requirements of this Part and of section 81. ;
PART XX TAKE-OVER BIDS AND ISSUER BIDS
Interpretation
In this Part,
“interested person” means,
an offeree issuer,
a security holder, director or officer of an offeree issuer,
an offeror,
the Director, and
“issuer bid” means a direct or indirect offer to acquire or redeem a security or a direct or indirect acquisition or redemption of a security that is,
made by the issuer of the security; and
within a prescribed class of offers, acquisitions or redemptions; (“offre de l’émetteur”)
“offeree issuer” means an issuer whose securities are the subject of a take-over bid, an issuer bid or an offer to acquire; (“pollicité”)
“take-over bid” means a direct or indirect offer to acquire a security that is,
made by a person or company other than the issuer of the security; and
within a prescribed class of offers to acquire. (“offre d’achat visant à la mainmise”) ;
Offeree Issuer and Offeror Obligations
A person or company must not make a take-over bid or an issuer bid, whether alone or acting jointly or in concert with one or more persons or companies, except in accordance with the regulations.
(1) If a take-over bid has been made, the board of directors of the offeree issuer shall,
determine whether to recommend acceptance or rejection of the take-over bid or determine not to make a recommendation; and
make the recommendation, or a statement that they are not making a recommendation, in accordance with the regulations.
An individual director or officer of the offeree issuer may recommend acceptance or rejection of the take-over bid if the recommendation is made in accordance with the regulations.
-93.4 Repealed:
-94.1 Repealed:
-94.8 Repealed:
[Repealed]
-98.7 Repealed:
[Repealed]
[Repealed]
[Repealed]
-100.6 Repealed:
[Repealed]
-101.7 Repealed:
[Repealed]
-102.2 Repealed:
Applications and Exemptions
[Repealed]
(1) On application by an interested person, if the Tribunal considers that a person or company has not complied with, or is not complying with, a requirement under this Part or the regulations related to this Part, the Tribunal may make an order,
restraining the distribution of any document or any communication used or issued in connection with a take-over bid or an issuer bid;
requiring an amendment to or variation of any document or any communication used or issued in connection with a take-over bid or an issuer bid and requiring the distribution of amended, varied or corrected documents or communications;
directing any person or company to comply with a requirement under this Part or the regulations related to this Part;
restraining any person or company from contravening a requirement under this Part or the regulations related to this Part; and
directing the directors and officers of any person or company to cause the person or company to comply with or to cease contravening a requirement under this Part or the regulations related to this Part. ; ;
If, in a proceeding under subsection (1), the Director is not the applicant, the Director shall be given notice of the application and may appear at the proceeding as a party.
On application by an interested person and subject to such terms and conditions as the Tribunal may impose, if the Tribunal is satisfied that it would not be prejudicial to the public interest, the Tribunal may,
[Repealed]
vary any time period set out in this Part or the regulations related to this Part; and
exempt a person or company from any of the requirements of this Part or the regulations related to this Part. ; ;
(1) On application by an interested person, if the Superior Court of Justice is satisfied that a person or company has not complied with a requirement under this Part or the regulations related to this Part, the Superior Court of Justice may make such interim or final order as the Court thinks fit, including, without limitation, an order,
compensating any interested person who is a party to the application for damages suffered as a result of a contravention of a requirement of this Part or the regulations related to this Part;
rescinding a transaction with any interested person, including the issue of a security or an acquisition and sale of a security;
requiring any person or company to dispose of any securities acquired under or in connection with a take-over bid or an issuer bid;
prohibiting any person or company from exercising any or all of the voting rights attaching to any securities; or
requiring the trial of an issue.
If, in a proceeding under subsection (1), the Director is not the applicant, the Director shall be given notice of the application and may appear at the proceeding as a party.
[Repealed]
PART XXI INSIDER TRADING AND SELF-DEALING
(1) In this Part,
“mutual fund” means a mutual fund that is a reporting issuer; (“fonds mutuel”)
For the purpose of this Part,
any issuer in which an investment fund holds in excess of 10 per cent of the voting securities or in which the investment fund and related investment funds hold in excess of 20 per cent of the voting securities shall be deemed to be a related person or company of that investment fund or of each of those investment funds; and
the acquisition or disposition by an insider of a put, call or other transferable option with respect to a security shall be deemed to be a change in the beneficial ownership of the security to which such put, call or other transferable option relates.
(1) Within 10 days of becoming an insider or within such other time period as may be prescribed, a person or company who becomes an insider of a reporting issuer, other than a mutual fund, shall file a report disclosing, in the prescribed manner and form, any direct or indirect beneficial ownership of or control or direction over securities of the reporting issuer and any interest in, or right or obligation associated with, a related financial instrument and the insider shall make such other disclosure as may be required by the regulations.
Within 10 days, or within such other time period as may be prescribed, of any change in the direct or indirect beneficial ownership of, or control or direction over, securities of the reporting issuer or any interest in, or right or obligation associated with, a related financial instrument, an insider of a reporting issuer, other than a mutual fund, shall file a report disclosing, in the prescribed manner and form, such change and the insider shall make such other disclosure as may be required by the regulations.
[Repealed]
[Repealed]
“investment” means a purchase of any security of any class of securities of an issuer including bonds, debentures, notes, or other evidences of indebtedness thereof, and a loan to persons or companies but does not include an advance or loan, whether secured or unsecured, that is made by an investment fund, its management company or its distribution company that is merely ancillary to the main business of the investment fund, its management company or its distribution company. ;
a person or company or a group of persons or companies has a significant interest in an issuer, if,
in the case of a person or company, he, she or it, as the case may be, owns beneficially, either directly or indirectly, more than 10 per cent, or
in the case of a group of persons or companies, they own beneficially, either individually or together and either directly or indirectly, more than 50 per cent,
of the outstanding shares or units of the issuer;
a person or company or a group of persons or companies is a substantial security holder of an issuer if that person or company or group of persons or companies owns beneficially, either individually or together or directly or indirectly, voting securities to which are attached more than 20 per cent of the voting rights attached to all the voting securities of the issuer for the time being outstanding, but in computing the percentage of voting rights attached to voting securities owned by an underwriter, there shall be excluded any voting securities acquired by the underwriter as such in a distribution of such securities but the exclusion ceases to have effect on completion or cessation of the distribution by the underwriter;
where a person or company or group of persons or companies owns beneficially, directly or indirectly, or pursuant to this clause is deemed to own beneficially, voting securities of an issuer, that person or company or group of persons or companies shall be deemed to own beneficially a proportion of voting securities of any other issuer that are owned beneficially, directly or indirectly, by the first mentioned issuer, which proportion shall equal the proportion of the voting securities of the first mentioned issuer that are owned beneficially, directly or indirectly, or that pursuant to this clause are deemed to be owned beneficially, by that person or company or group of persons or companies.
(1) No investment fund shall knowingly make an investment by way of loan to,
any officer or director of the investment fund, its management company or distribution company or an associate of any of them;
any individual, where the individual or an associate of the individual is a substantial security holder of the investment fund, its management company or distribution company.
No investment fund shall knowingly make an investment,
in any person or company who is a substantial security holder of the investment fund, its management company or its distribution company;
in any person or company in which the investment fund, alone or together with one or more related investment funds, is a substantial security holder; or
in an issuer in which any of the following has a significant interest:
any officer or director of the investment fund, its management company or distribution company or an associate of any of them; or
any person or company who is a substantial security holder of the investment fund, its management company or its distribution company.
No mutual fund in Ontario or its management company or its distribution company shall knowingly hold an investment made after September 15, 1979 and before the day this section comes into force if the investment is an investment described in this section.
No investment fund or its management company or its distribution company shall knowingly hold an investment made on or after the day this section comes into force if the investment is an investment described in this section.
In this section,
“investment fund” means a mutual fund in Ontario or a non-redeemable investment fund that is a reporting issuer.
No investment fund or its management company or its distribution company shall knowingly enter into any contract or other arrangement that results in its being directly or indirectly liable or contingently liable in respect of any investment by way of loan to, or other investment in, a person or company to whom it is by section 111 prohibited from making a loan or in which it is prohibited from making any other investment, and for the purpose of section 111 any such contract or other arrangement shall be deemed to be a loan or an investment, as the case may be. ;
Upon an application of an interested person or company, the Commission may, where it is satisfied,
that a class of investment or a particular investment represents the business judgment of responsible persons uninfluenced by considerations other than the best interests of an investment fund; or
Despite clause 110 (2) (c), an investment fund is not prohibited from making an investment in an issuer only because a person or company or a group of persons or companies who own beneficially, directly or indirectly, or are deemed to own beneficially, voting securities of the investment fund or its management company or its distribution company are by reason thereof deemed to own beneficially voting securities of the issuer. ;
(1) No investment fund shall make any investment in consequence of which a related person or company of the investment fund will receive any fee or other compensation except fees paid pursuant to a contract which is disclosed in any preliminary prospectus or prospectus, or any amendment to either of them, that is filed by the investment fund and is accepted by the Director. ;
The Commission may, upon the application of an investment fund and where it is satisfied that it would not be prejudicial to the public interest to do so, order, subject to such terms and conditions as it may impose, that subsection (1) does not apply to the investment fund. ;
Every investment fund manager,
shall exercise the powers and discharge the duties of their office honestly, in good faith and in the best interests of the investment fund; and
shall exercise the degree of care, diligence and skill that a reasonably prudent person would exercise in the circumstances.
(1) Every management company shall, in respect of each investment fund to which it provides services or advice, file a report prepared in accordance with the regulations of any of the following within 30 days after the end of the month in which it occurs:
Every transaction of purchase or sale of securities between the investment fund and any related person or company.
Every loan received by the investment fund from, or made by the investment fund to, any of its related persons or companies.
Every purchase or sale effected by the investment fund through any related person or company with respect to which the related person or company received a fee either from the investment fund or from the other party to the transaction or from both.
Any transaction in which, by arrangement other than an arrangement relating to insider trading in portfolio securities, the investment fund is a joint participant with one or more of its related persons or companies.
The Commission may, on the application of the management company of an investment fund and where it is of the opinion that it would not be prejudicial to the public interest to do so, order, subject to such terms and conditions as it may impose, that subsection (1) does not apply to any transaction or class of transactions.
[Repealed]
No person or company that has access to information concerning the investment program of a mutual fund or the investment portfolio managed for a client by a registered adviser or registered dealer through discretionary authority provided by the client shall purchase or sell securities of an issuer for his, her or its own account if,
the portfolio securities of the mutual fund or the investment portfolio managed for the client by the registered adviser or registered dealer include securities of that issuer; and
the person or company has used the information for his, her or its direct benefit or advantage.
The Commission shall summarize in or as a part of a monthly periodical available to the public on payment of a reasonable fee the information contained in every report filed in compliance with this Part.
(1) Where the laws of the jurisdiction in which the reporting issuer is incorporated, organized or continued require substantially the same reports in that jurisdiction as are required by this Part, the filing requirements of this Part may be compiled with by filing the reports required by the laws of such jurisdiction manually signed or certified in accordance with the regulations.
Subject to subsection (1), the Commission may,
upon the application of an interested person or company,
if a requirement of this Part conflicts with a requirement of the laws of the jurisdiction under which the reporting issuer is incorporated, organized or continued, or
if otherwise satisfied in the circumstances of the particular case that there is adequate justification for so doing; or
of its own motion,
make an order on such terms and conditions as seem to the Commission just and expedient, exempting in whole or in part, a person or company from the requirements of this Part. ;
If the regulations so provide, a body established under subsection 121.4 (1) by an investment fund may approve a transaction that is prohibited under this Part and, in that case, the prohibition does not apply to the transaction.
part xxI.1 governance and other requirements
In this Part,
“prescribed” means prescribed in the regulations.
For the purposes of this Act, a reporting issuer shall comply with such requirements as may be prescribed with respect to the governance of reporting issuers, including requirements relating to,
the composition of its board of directors and qualifications for membership on the board, including matters respecting the independence of members;
the establishment of specified types of committees of the board of directors, the mandate, functioning and responsibilities of each committee, the composition of each committee and the qualifications for membership on the committee, including matters respecting the independence of members;
the establishment and enforcement of a code of business conduct and ethics applicable to its directors, officers and employees and applicable to persons or companies that are in a special relationship with the reporting issuer, including the minimum requirements for such a code; and
procedures to regulate conflicts of interest between the interests of the reporting issuer and those of a director or officer of the issuer.
(1) If required to do so by the regulations, an investment fund shall establish and maintain a body for the purposes of overseeing activities of the investment fund and the investment fund manager, reviewing or approving prescribed matters affecting the investment fund, including transactions referred to in section 121.1, and disclosing information to security holders of the fund, to the investment fund manager and to the Commission.
The body has such powers and duties as may be prescribed.
PART XXI.2 WHISTLE-BLOWING AND PROTECTION FROM REPRISALS
(1) This section applies if, for the purpose of making a whistle-blower submission, an individual provides information to the Commission in a form made available by the Commission for that purpose.
The Commission shall not disclose, in response to a request for access under the Freedom of Information and Protection of Privacy Act, the identity of the individual, or any information or record that may reasonably be expected to reveal the identity of the individual, as the source of information that has been provided to the Commission.
Subsection (2) applies with respect to information provided to the Commission before, on or after the day section 4 of Schedule 10 to the Building a Strong Ontario Together Act (Budget Measures), 2023 comes into force.
(1) In this section,
“specified individual”, in relation to a person or company, means,
an employee, officer or director of the person or company,
an individual who provides services to the person or company under a contract, other than an employment contract, between the individual and the person or company, or
an individual who is an incorporated employee of a personal services business within the meaning of subsection 125 (7) of the Income Tax Act (Canada) and who provides services to the person or company under a contract between the personal services business and the person or company.
No person or company, or other person or company acting on behalf of the person or company, shall take a reprisal against a specified individual because the specified individual has,
sought advice about providing information, expressed an intention to provide information or provided information to the person or company, the Commission, a recognized self-regulatory organization or a law enforcement agency, or a person or company acting under the authority of the Commission, of a recognized self-regulatory organization or of a law enforcement agency, about an act of the person or company, or of a person or company acting on behalf of the person or company, that has occurred, is ongoing or is about to occur, and that the specified individual reasonably believes is contrary to Ontario securities law or a by-law or other regulatory instrument of a recognized self-regulatory organization; or
in relation to information provided under clause (a), co-operated, testified or otherwise assisted, or expressed an intention to co-operate, testify or otherwise assist in,
a review, investigation, examination or inspection authorized by the Commission, by a recognized self-regulatory organization or by a law enforcement agency, or
a proceeding under this Act, a proceeding of a recognized self-regulatory organization or a judicial proceeding.
For the purposes of subsection (2), a reprisal includes, without limitation,
terminating or threatening to terminate the specified individual’s employment, contract, position or office;
demoting, disciplining or suspending, or threatening to demote, discipline or suspend, the specified individual from their employment, position or office;
imposing or threatening to impose a penalty, or withholding or threatening to withhold a benefit, related to the specified individual’s employment, contract, position or office;
intimidating or coercing a specified individual in relation to their employment, contract, position or office; or
otherwise detrimentally affecting the specified individual by any act or failure to act, regardless of whether the act or failure to act is related to the specified individual’s employment, contract, position or office, if any.
A provision in an agreement, including a confidentiality agreement, is void to the extent that it precludes or purports to preclude a specified individual from,
providing information described in clause (2) (a) to the Commission, a recognized self-regulatory organization or a law enforcement agency; or
in relation to information provided under clause (2) (a), co-operating, testifying or otherwise assisting, or expressing an intention to co-operate, testify or otherwise assist in,
a review, investigation, examination or inspection authorized by the Commission, by a recognized self-regulatory organization or by a law enforcement agency, or
a proceeding under this Act, a proceeding of a recognized self-regulatory organization or a judicial proceeding.
If a specified individual alleges that a person or company, or a person or company acting on behalf of the person or company, has taken a reprisal against them in contravention of subsection (2), the specified individual may, without limiting the steps they may otherwise take,
in the case where arbitration is provided for under a collective agreement, make a complaint to be dealt with by final and binding settlement by arbitration under the collective agreement; or
in any other case, either,
bring an action in the Superior Court of Justice, or
if arbitration is provided for under an agreement other than a collective agreement, make a complaint to be dealt with by final and binding settlement by arbitration under the agreement.
The arbitrator or court may order one or more of the following remedies:
Reinstatement of the specified individual to their employment, contract, position or office, with the same seniority status that the specified individual would have had if the reprisal had not been taken.
Payment to the specified individual of two times the amount of compensation the specified individual would have been paid in connection with their employment, contract, position or office between the date of the reprisal and the date of the order if the reprisal had not been taken, with interest.
Payment to the specified individual of compensation, in the amount the arbitrator or court considers just, having regard to the reprisal to which the complaint or proceeding relates and any loss attributable to it.
PART XXII ENFORCEMENT
(1) Every person or company that,
makes a statement in any material, evidence or information submitted to the Commission, a Director, any person acting under the authority of the Commission or the Chief Executive Officer of the Commission or any person appointed to make an investigation or examination under this Act that, in a material respect and at the time and in the light of the circumstances under which it is made, is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading;
makes a statement in any application, release, report, preliminary prospectus, prospectus, return, financial statement, information circular, take-over bid circular, issuer bid circular or other document required to be filed or furnished under Ontario securities law that, in a material respect and at the time and in the light of the circumstances under which it is made, is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading; or
contravenes Ontario securities law,
is guilty of an offence and on conviction is liable to a fine of not more than $10 million or to imprisonment for a term of not more than five years less a day, or to both. ; ; ;
Clauses (1) (a) and (b) do not apply to a statement made or given to the Commission in a submission in respect of a proposed rule or policy.
Without limiting the availability of other defences, no person or company is guilty of an offence under clause (1) (a) or (b) if the person or company did not know and in the exercise of reasonable diligence could not have known that the statement was misleading or untrue or that it omitted to state a fact that was required to be stated or that was necessary to make the statement not misleading in light of the circumstances in which it was made.
Without limiting the availability of other defences, no person or company is guilty of an offence for failing to comply with subsection 127.0.1 (6) or 127.0.2 (6) if the person or company did not know, and in the exercise of reasonable diligence could not have known, that the act or course of conduct in which the person or company engaged caused the person or company to fail to comply with a sanction, condition, restriction, requirement, order or agreement mentioned in those subsections.
Every director or officer of a company or of a person other than an individual who authorizes, permits or acquiesces in the commission of an offence under subsection (1) by the company or person, whether or not a charge has been laid or a finding of guilt has been made against the company or person in respect of the offence under subsection (1), is guilty of an offence and is liable on conviction to a fine of not more than $10 million or to imprisonment for a term of not more than five years less a day, or to both. ; ;
Despite subsection (1) and in addition to any imprisonment imposed under subsection (1), a person or company who is convicted of contravening subsection 76 (1), (2) or (3) is liable to a minimum fine equal to the profit made or the loss avoided by the person or company by reason of the contravention and a maximum fine equal to the greater of,
$10 million; and
the amount equal to triple the amount of the profit made or the loss avoided by the person or company by reason of the contravention. ; ; ;
If it is not possible to determine the profit made or loss avoided by the person or company by reason of the contravention, subsection (4) does not apply but subsection (1) continues to apply.
“loss avoided” means,
in respect of a security, other than anything deemed to be a security under subsection 76 (6), the amount by which the amount received for the security sold in contravention of subsection 76 (1) exceeds the average trading price of the security in the 20 trading days following general disclosure of the material fact or the material change, and
in respect of anything deemed to be a security under subsection 76 (6), such amount as may be prescribed by or determined in accordance with a regulation made by the Lieutenant Governor in Council; (“perte évitée”)
“profit made” means,
in respect of a security, other than anything deemed to be a security under subsection 76 (6), and except in respect of a short sale, the amount by which the average trading price of the security in the 20 trading days following general disclosure of the material fact or the material change exceeds the amount paid for the security purchased in contravention of subsection 76 (1),
in respect of a short sale, the amount by which the amount received for the security sold in contravention of subsection 76 (1) exceeds the average trading price of the security in the twenty trading days following general disclosure of the material fact or the material change,
in respect of anything deemed to be a security under subsection 76 (6), such amount as may be prescribed by or determined in accordance with a regulation made by the Lieutenant Governor in Council, or
No proceeding under this section shall be commenced except with the consent of the Commission.
The Commission or an agent for the Commission may by notice to the clerk of the court having jurisdiction in respect of an offence under this Act require that a provincial judge preside over the proceeding.
(1) If a person or company is convicted of an offence under this Act, the court may, in addition to any penalty, order the convicted person or company to make restitution or pay compensation in relation to the offence to an aggrieved person or company.
If a court makes an order for restitution or compensation, it shall cause a copy of the order or a notice of the content of the order to be given to the person or company to whom the restitution or compensation is ordered to be paid.
An order for restitution or compensation may be filed with a local registrar of the Superior Court of Justice and the responsibility for filing shall be on the person or company to whom the restitution or compensation is ordered to be paid.
An order for restitution or compensation filed under subsection (3) may be enforced as if it were an order of the court.
Section 129 of the Courts of Justice Act applies in respect of an order for restitution or compensation filed under subsection (3) and, for that purpose, the date of filing shall be deemed to be the date of the order.
A person or company is not entitled to participate in a proceeding in which an order may be made under this section solely on the basis that the person or company has a right of action against a defendant to the proceeding or that the person or company may be entitled to receive an amount under the order.
A civil remedy for an act or omission is not affected by reason only that an order for restitution or compensation under this section has been made in respect of that act or omission.
[Repealed]
An information in respect of any contravention of this Act may be for one or more offences, and no information, summons, warrant, conviction or other proceeding in any prosecution is objectionable or insufficient by reason of the fact that it relates to two or more offences.
(1) Where a provincial judge, magistrate or justice of another province or territory of Canada issues a warrant for the arrest of any person on a charge of contravening any provision of a statute of such province or territory similar to this Act, any provincial judge or justice of Ontario within whose jurisdiction that person is or is suspected to be, may, upon satisfactory proof of the handwriting of the provincial judge, magistrate or a justice who issued the warrant, make an endorsement thereon in the form prescribed by the regulations, and a warrant so endorsed is sufficient authority to the person bringing the warrant and to all other persons to whom it was originally directed and to all police officers to execute the warrant within that jurisdiction and to take the person arrested thereunder either out of or anywhere in Ontario and to rearrest such person anywhere in Ontario.
Any police officer of Ontario or of any other province or territory of Canada who is passing through Ontario and who has in custody a person arrested in another province or territory under a warrant endorsed under subsection (1) is entitled to hold, take and rearrest the accused anywhere in Ontario under such warrant without proof of the warrant or the endorsement thereof. ;
(1) If the Commission considers it expedient for the due administration of Ontario securities law or the regulation of the capital markets in Ontario or expedient to assist in the due administration of the securities laws or the regulation of the capital markets in another jurisdiction, the Commission may,
direct a person or company having on deposit or under its control or for safekeeping any funds, securities or property of any person or company to retain those funds, securities or property;
direct a person or company to refrain from withdrawing any funds, securities or property from another person or company who has them on deposit, under control or for safekeeping; or
direct a person or company to maintain funds, securities or property, and to refrain from disposing of, transferring, dissipating or otherwise dealing with or diminishing the value of those funds, securities or property.
A direction under subsection (1) applies until the Commission in writing revokes the direction or consents to release funds, securities or property from the direction, or until the Superior Court of Justice orders otherwise.
A direction under subsection (1) that names a bank or other financial institution shall apply only to the branches of the bank or other financial institution identified in the direction.
A direction under subsection (1) shall not apply to funds, securities or property in a recognized clearing agency or to securities in process of transfer by a transfer agent unless the direction so states.
The Commission may order that a direction under subsection (1) be certified to a land registrar or mining recorder and that it be registered or recorded against the lands or claims identified in the direction, and on registration or recording of the certificate it shall have the same effect as a certificate of pending litigation.
As soon as practicable, but not later than 10 days after a direction is issued under subsection (1), the Commission shall serve and file a notice of application in the Superior Court of Justice to continue the direction or for such other order as the court considers appropriate.
An order may be made under subsection (5) if the court is satisfied that the order would be reasonable and expedient in the circumstances, having due regard to the public interest and,
the due administration of Ontario securities law or the securities laws of another jurisdiction; or
the regulation of capital markets in Ontario or another jurisdiction.
A direction under subsection (1) may be made without notice but, in that event, copies of the direction shall be sent forthwith by such means as the Commission may determine to all persons and companies named in the direction.
A person or company directly affected by a direction may apply to the Commission for clarification or to have the direction varied or revoked.
(1) A person or company shall not, directly or indirectly, engage or participate in any act, practice or course of conduct relating to securities, derivatives or the underlying interest of a derivative that the person or company knows or reasonably ought to know,
results in or contributes to a misleading appearance of trading activity in, or an artificial price for, a security, derivative or underlying interest of a derivative; or
perpetrates a fraud on any person or company.
A person or company shall not, directly or indirectly, attempt to engage or participate in any act, practice or course of conduct that is contrary to subsection (1).
(1) A person or company shall not make a statement that the person or company knows or reasonably ought to know,
in a material respect and at the time and in the light of the circumstances under which it is made, is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading; and
would reasonably be expected to have a significant effect on the market price or value of a security, derivative or underlying interest of a derivative. ; ;
A breach of subsection (1) does not give rise to a statutory right of action for damages otherwise than under Part XXIII or XXIII.1.
(1) A person or company shall not, directly or indirectly, engage or participate in the provision of information to another person or company for the purpose of determining a benchmark if the person or company knows or reasonably ought to know that the information, at the time and in the circumstances in which it is provided, is false or misleading.
A person or company shall not, directly or indirectly, attempt to engage or participate in the conduct described in subsection (1).
(1) A person or company shall not, directly or indirectly, engage or participate in conduct relating to a benchmark that improperly influences the determination of the benchmark or produces or contributes to the production of a false or misleading determination of the benchmark.
A person or company shall not, directly or indirectly, attempt to engage or participate in the conduct described in subsection (1).
(1) The Tribunal may make one or more of the following orders if in its opinion it is in the public interest to make the order or orders:
An order that the registration or recognition granted to a person or company under Ontario securities law be suspended or restricted for such period as is specified in the order or be terminated, or that terms and conditions be imposed on the registration or recognition.
An order that trading in any securities by or of a person or company or that trading in any derivatives by a person or company cease permanently or for such period as is specified in the order.
2.1 An order that the acquisition of any securities by a particular person or company is prohibited permanently or for the period specified in the order.
An order that any exemptions contained in Ontario securities law do not apply to a person or company permanently or for such period as is specified in the order.
An order that a market participant submit to a review of his, her or its practices and procedures and institute such changes as may be ordered by the Tribunal.
If the Tribunal is satisfied that Ontario securities law has not been complied with, an order that a release, report, preliminary prospectus, prospectus, return, financial statement, information circular, take-over bid circular, issuer bid circular, offering memorandum, proxy solicitation or any other document described in the order,
be provided by a market participant to a person or company,
not be provided by a market participant to a person or company, or
be amended by a market participant to the extent that amendment is practicable.
An order that a person or company be reprimanded.
An order that a person resign one or more positions that the person holds as a director or officer of an issuer.
An order that a person is prohibited from becoming or acting as a director or officer of any issuer.
8.1 An order that a person resign one or more positions that the persons holds as a director or officer of a registrant.
8.2 An order that a person is prohibited from becoming or acting as a director or officer of a registrant.
8.3 An order that a person resign one or more positions that the person holds as a director or officer of an investment fund manager.
8.4 An order that a person is prohibited from becoming or acting as a director or officer of an investment fund manager.
8.5 An order that a person or company is prohibited from becoming or acting as a registrant, as an investment fund manager or as a promoter.
If a person or company has not complied with Ontario securities law, an order requiring the person or company to pay an administrative penalty of not more than $5 million for each failure to comply.
If a person or company has not complied with Ontario securities law, an order requiring the person or company to disgorge to the Commission any amounts obtained as a result of the non-compliance. ; ; ; ; ; ;
The Commission may make any order described in paragraph 1, 2 or 2.1 of subsection (1) if the Commission has the consent of the person or company to whom the order is directed, and in such circumstances no hearing is required, despite subsection (4). ;
An order under this section may be subject to such terms and conditions as may be imposed by the Tribunal or the Commission, as the case may be.
The Tribunal or the Commission may make an order under paragraph 2 of subsection (1) despite the delivery of a report to it under subsection 75 (3). ;
A person or company is not entitled to participate in a proceeding in which an order may be made under paragraph 9 or 10 of subsection (1) solely on the basis that the person or company may be entitled to receive any amount paid under the order.
No order shall be made under this section without a hearing, subject to section 4 of the Statutory Powers Procedure Act.
Despite subsection (4), if any of the following circumstances exist, the Tribunal may make an order described in paragraphs 1 to 8.5 of subsection (1) without giving the person or company that is subject to the order an opportunity to be heard:
The person or company has been found by a court in any jurisdiction to have contravened the laws of the jurisdiction respecting securities or derivatives.
The person or company has been convicted in any jurisdiction of an offence under laws respecting securities or derivatives.
The person or company has been convicted in any jurisdiction of an offence arising from a transaction, business or course of conduct related to securities or derivatives.
Despite subsection (4), if any of the following circumstances exist, the Tribunal may make an order described in paragraphs 1 to 8.5 of subsection (1) without giving the person or company that is subject to the order an opportunity to be heard:
The person or company is subject to an order made by a securities regulatory authority outside Canada, as defined in subsection (10), imposing sanctions, conditions, restrictions or requirements.
The person or company is subject to an order made by a securities regulatory authority of another province or territory in Canada, as defined in subsection (10), imposing sanctions, conditions, restrictions or requirements.
The person or company is subject to an order made by a recognized self-regulatory organization in Canada imposing sanctions, conditions, restrictions or requirements.
The person or company is subject to an order made by an exchange in Canada imposing sanctions, conditions, restrictions or requirements.
Despite subsection (4), if any of the following circumstances exist, the Tribunal may make an order described in paragraphs 1 to 8.5 of subsection (1) without giving the person or company who is subject to the order an opportunity to be heard:
The person or company has agreed with a securities regulatory authority outside Canada, as defined in subsection (10), to be subject to sanctions, conditions, restrictions or requirements.
The person or company has agreed with a securities regulatory authority of another province or territory in Canada, as defined in subsection (10), to be subject to sanctions, conditions, restrictions or requirements.
The person or company has agreed with a recognized self-regulatory organization in Canada to be subject to sanctions, conditions, restrictions or requirements.
The person or company has agreed with an exchange in Canada to be subject to sanctions, conditions, restrictions or requirements.
The Tribunal may make an order under subsections (4.0.1) to (4.0.3) even if the circumstances mentioned in those subsections arose before the day the Building a Strong Ontario Together Act (Budget Measures), 2023 received Royal Assent.
Despite subsection (4), the Commission may make an order under paragraph 2 or 2.1 of subsection (1) without giving the person or company that is subject to the order an opportunity to be heard if the person or company fails to file a record required to be filed under this Act.
An order made under subsection (4.1) must include a reference to the record that was not filed.
Subject to subsection (4.6), the Commission shall revoke an order made under subsection (4.1) as soon as practicable after the record referred to in the order is filed.
The Commission shall publish a notice of every order made under subsection (4.1) as soon as practicable after the order is made.
The Commission shall publish a notice of every order revoked under subsection (4.3) as soon as practicable after the order is revoked.
If an order made under subsection (4.1) has been in effect for more than 90 days and the Commission is of the opinion that it would be in the public interest to do so, the Commission may require that, before it revokes the order, in addition to filing the record referred to in the order, the person or company that is the subject of the order concurrently file or deliver such additional records or information about the person or company as the Commission requests.
Despite subsection (4), if in the opinion of the Tribunal the length of time required to conclude a hearing could be prejudicial to the public interest, the Tribunal may make a temporary order under paragraph 1, 2, 2.1 or 3 or subparagraph 5 ii of subsection (1).
Despite subsection (4), if in the opinion of the Commission the length of time required to conclude a hearing could be prejudicial to the public interest, the Commission may make a temporary order under paragraph 1, 2, 2.1 or 3 or subparagraph 5 ii of subsection (1).
A temporary order made under subsection (5) or (5.1) takes effect immediately and expires on the 15th day after its making unless extended by the Tribunal.
The Tribunal may extend a temporary order made under subsection (5) or (5.1) until the hearing is concluded if a hearing is commenced within the 15-day period.
The Tribunal shall give written notice of every temporary order made under subsection (5), together with a notice of hearing, to any person or company directly affected by the temporary order. ;
The Commission shall give written notice of every temporary order made under subsection (5.1), together with a notice of hearing, to any person or company directly affected by the temporary order.
“securities regulatory authority of another province or territory in Canada” means a securities commission or other person or body empowered by law to regulate securities or derivatives in, or to administer or enforce the securities or derivatives law of, another province or territory in Canada, or any other person or body prescribed by a regulation, but does not include a self-regulatory organization, exchange, clearing agency, trade repository, quotation and trade reporting system, auditor oversight body or credit rating organization; (“organisme de réglementation des valeurs mobilières d’une autre province ou d’un territoire du Canada”)
“securities regulatory authority outside Canada” means a securities commission, self-regulatory organization, exchange or other person or body empowered by law to regulate securities or derivatives in, or to administer or enforce the securities or derivatives laws of, a jurisdiction outside Canada. (“organisme étranger de réglementation des valeurs mobilières”)
(1) This section applies with respect to an order made by a securities regulatory authority of another province or territory in Canada, as defined in subsection 127 (10), if,
the order imposes sanctions, conditions, restrictions or requirements on a person or company; and
the order arose as a result of a finding or an admission of a contravention by the person or company of the laws of that province or territory respecting securities or derivatives, or a finding or an admission of conduct contrary to the public interest.
The order made by the securities regulatory authority of the other province or territory applies in Ontario, without notice to the person or company and without an opportunity to be heard, as if the order were made by the Tribunal with such modifications as the circumstances require, to the extent that the Tribunal or the Commission has the power to impose a similar sanction, condition, restriction or requirement.
The Commission shall, on its website, provide access to a publicly available source where orders that apply in Ontario under subsection (2) can be found.
The Chief Executive Officer of the Commission or a person or company directly affected by an order described in subsection (1) may apply to the Tribunal for clarification of the application of subsection (2) in respect of an order described in subsection (1).
After giving the Chief Executive Officer of the Commission and the person or company an opportunity to be heard on an application under subsection (4), the Tribunal may make an order concerning the application of subsection (2), and the Tribunal’s order is binding on the person or company and on the Commission.
A person or company is not liable, as a result of the operation of subsection (2), to pay to the Commission or to another person or company any amount that the person or company is liable to pay under the order made by the securities regulatory authority of the other province or territory.
If the order made by the securities regulatory authority of the other province or territory is amended or varied under the laws of that province or territory, the order as amended or varied applies in Ontario under subsection (2).
If the order made by the securities regulatory authority of the other province or territory is overturned, vacated, revoked or otherwise held to be of no effect pursuant to the laws of that province or territory, the order does not apply in Ontario under subsection (2).
(1) This section applies with respect to an agreement entered into between a person or company and a securities regulatory authority of another province or territory in Canada, as defined in subsection 127 (10), relating to,
a finding or an admission of a contravention by the person or company of the laws of that province or territory respecting securities or derivatives; or
a finding or an admission of conduct contrary to the public interest by the person or company.
If a person or company is subject to a sanction, condition, restriction or requirement pursuant to an agreement described in subsection (1), the agreement has the same effect in Ontario and the sanction, condition, restriction or requirement imposed under that agreement applies in Ontario, without notice to the person or company and without an opportunity to be heard, as if the agreement had been made with the Commission with such modifications as the circumstances require, to the extent that the Tribunal has the power to impose a similar sanction, condition, restriction or requirement.
The Commission shall, on its website, provide access to a publicly available source where the agreement that imposes the sanctions, conditions, restrictions or requirements that apply in Ontario under subsection (2) can be found.
The Chief Executive Officer of the Commission or a person or company who is subject to an agreement described in subsection (1) may apply to the Tribunal for clarification of the application of subsection (2) in respect of an agreement described in subsection (1).
After giving the Chief Executive Officer of the Commission and the person or company an opportunity to be heard on an application under subsection (4), the Tribunal may make an order concerning the application of subsection (2), and the Tribunal’s order is binding on the person or company and on the Commission.
A person or company is not liable, as a result of the operation of subsection (2), to pay to the Commission or to another person or company any amount that the person or company is liable to pay under the agreement.
If the agreement is amended or varied under the laws of the other province or territory, the sanctions, conditions, restrictions or requirements imposed under the agreement as amended or varied apply in Ontario under subsection (2).
If the agreement is set aside, revoked or otherwise held to be of no effect pursuant to the laws of the other province or territory, the sanctions, conditions, restrictions or requirements that were imposed under it do not apply in Ontario under subsection (2).
(1) If, in respect of a person or company whose affairs were the subject of an investigation, the Tribunal,
is satisfied that the person or company has not complied with, or is not complying with, Ontario securities law; or
considers that the person or company has not acted in the public interest,
the Tribunal may, after conducting a hearing, order the person or company to pay the costs of the investigation.
If, in respect of a person or company whose affairs were the subject of a hearing, the Tribunal, after conducting the hearing,
is satisfied that the person or company has not complied with, or is not complying with, Ontario securities law; or
considers that the person or company has not acted in the public interest,
the Tribunal may order the person or company to pay the costs of or related to the hearing that are incurred by or on behalf of the Commission.
Where a person or company is guilty of an offence under this Act or the regulations, the Tribunal may, after conducting a hearing, order the person or company to pay the costs of any investigation carried out in respect of that offence.
Costs of matters preliminary to the hearing.
Costs for time spent by the Commission or the staff of the Commission.
Any fee paid to a witness.
Costs of legal services provided to the Commission.
(1) The Commission may apply to the Superior Court of Justice for a declaration that a person or company has not complied with or is not complying with Ontario securities law. ;
The Commission is not required, before making an application under subsection (1), to hold a hearing to determine whether the person or company has not complied with or is not complying with Ontario securities law.
If the court makes a declaration under subsection (1), the court may, despite the imposition of any penalty under section 122 and despite any order made under section 127 by the Commission or the Tribunal, make any order that the court considers appropriate against the person or company, including, without limiting the generality of the foregoing, one or more of the following orders:
An order that the person or company comply with Ontario securities law.
An order requiring the person or company to submit to a review by the Commission of his, her or its practices and procedures and to institute such changes as may be directed by the Commission.
An order directing that a release, report, preliminary prospectus, prospectus, return, financial statement, information circular, takeover bid circular, issuer bid circular, offering memorandum, proxy solicitation or any other document described in the order,
be provided by the person or company to another person or company,
not be provided by the person or company to another person or company, or
be amended by the person or company to the extent that amendment is practicable.
An order rescinding any transaction entered into by the person or company relating to trading in securities including the issuance of securities.
An order requiring the issuance, cancellation, purchase, exchange or disposition of any securities by the person or company.
An order prohibiting the voting or exercise of any other right attaching to securities by the person or company.
An order prohibiting the person from acting as officer or director or prohibiting the person or company from acting as promoter of any market participant permanently or for such period as is specified in the order.
An order appointing officers and directors in place of or in addition to all or any of the officers and directors of the company then in office.
An order directing the person or company to purchase securities of a security holder.
An order directing the person or company to repay to a security holder any part of the money paid by the security holder for securities.
An order requiring the person or company to produce to the court or an interested person financial statements in the form required by Ontario securities law, or an accounting in such other form as the court may determine.
An order directing rectification of the registers or other records of the company.
An order requiring the person or company to compensate or make restitution to an aggrieved person or company.
An order requiring the person or company to pay general or punitive damages to any other person or company.
An order requiring the person or company to disgorge to the Commission any amounts obtained as a result of the non-compliance with Ontario securities law.
An order requiring the person or company to rectify any past non-compliance with Ontario securities law to the extent that rectification is practicable. ; ;
On an application under this section the court may make such interim orders as it considers appropriate.
(1) This section applies with respect to orders made under paragraph 10 of subsection 127 (1) and paragraph 15 of subsection 128 (3).
In the circumstances prescribed by the regulations, all or part of the disgorged amount received by the Commission shall be distributed in accordance with this section and the regulations to persons or companies who,
incurred direct financial losses as a result of the contravention giving rise to the payment; and
satisfy such conditions, restrictions and requirements as may be prescribed.
If the regulations require a distribution, persons or companies described in subsection (2) may apply for a payment from the disgorged amount and shall do so in accordance with any applicable court order or regulation.
On application by the Commission, the Superior Court of Justice may make an order appointing one or more persons or companies to administer and distribute all or any part of the disgorged amount if the court is satisfied that the appointment is appropriate for the due administration of Ontario securities law.
The Commission may be appointed under subsection (4).
The court order shall specify the administrator’s powers and duties and the process for distributing any disgorged amount and may include such terms as the court considers just and expedient in the circumstances.
The court order may be varied or revoked by the court on application by the Commission or by the court-appointed administrator.
The court-appointed administrator may, in accordance with the court order, make a payment to an applicant from the disgorged amount administered under the court order.
The following administrative costs are eligible to be paid to a court-appointed administrator from the disgorged amount or, in accordance with the regulations, from money described in subclause 19 (2) (b) (iii) or clause 19 (2) (c) of the Securities Commission Act, 2021:
The reasonable costs incurred by the administrator, before their appointment, in connection with the disgorged amount.
The reasonable costs incurred by the administrator in connection with court orders made under this section.
If the regulations require a distribution and there is no court-appointed administrator for all or a part of a disgorged amount, the Commission shall administer and distribute the disgorged amount or the part, as the case may be, in accordance with the regulations.
The Commission may, in accordance with the regulations, make a payment to an applicant from the disgorged amount administered by the Commission under subsection (10).
In the circumstances described in subsection (10), the following administrative costs are eligible to be paid to the Commission from a disgorged amount or, in accordance with the regulations, from money described in subclause 19 (2) (b) (iii) or clause 19 (2) (c) of the Securities Commission Act, 2021:
The reasonable costs of obtaining external advice related to a distribution of the disgorged amount.
Any disgorged amount remaining after payments are made under subsections (8), (9), (11) and (12) belongs to the Commission and shall be dealt with in accordance with subsection 19 (2) of the Securities Commission Act, 2021.
If the regulations do not require a distribution, the disgorged amount belongs to the Commission and shall be dealt with in accordance with subsection 19 (2) of the Securities Commission Act, 2021.
(1) The Commission may apply to the Superior Court of Justice for an order appointing a receiver, receiver and manager, trustee or liquidator of all or any part of the property of any person or company. ;
No order shall be made under subsection (1) unless the court is satisfied that,
the appointment of a receiver, receiver and manager, trustee or liquidator of all or any part of the property of the person or company is in the best interests of the creditors of the person or company or of persons or companies any of whose property is in the possession or under the control of the person or company or the security holders of or subscribers to the person or company; or
it is appropriate for the due administration of Ontario securities law.
The court may make an order under subsection (1) on an application without notice, but the period of appointment shall not exceed fifteen days.
If an order is made without notice under subsection (3), the Commission may make a motion to the court within fifteen days after the date of the order to continue the order or for the issuance of such other order as the court considers appropriate.
A receiver, receiver and manager, trustee or liquidator of the property of a person or company appointed under this section shall be the receiver, receiver and manager, trustee or liquidator of all or any part of the property belonging to the person or company or held by the person or company on behalf of or in trust for any other person or company, and, if so directed by the court, the receiver, receiver and manager, trustee or liquidator has the authority to wind up or manage the business and affairs of the person or company and has all powers necessary or incidental to that authority.
If an order is made appointing a receiver, receiver and manager, trustee or liquidator of the property of a person or company under this section, the powers of the directors of the company that the receiver, receiver and manager, trustee or liquidator is authorized to exercise may not be exercised by the directors until the receiver, receiver and manager, trustee or liquidator is discharged by the court.
The fees charged and expenses incurred by a receiver, receiver and manager, trustee or liquidator appointed under this section in relation to the exercise of powers pursuant to the appointment shall be in the discretion of the court.
An order made under this section may be varied or discharged by the court on motion.
Except where otherwise provided in this Act, no proceeding under this Act shall be commenced later than six years from the date of the occurrence of the last event on which the proceeding is based.
For the purposes of this Act, if a company or a person other than an individual has not complied with Ontario securities law, a director or officer of the company or person who authorized, permitted or acquiesced in the non-compliance shall be deemed to also have not complied with Ontario securities law, whether or not any proceeding has been commenced against the company or person under Ontario securities law or any order has been made against the company or person under section 127.
PART XXIII CIVIL LIABILITY
(1) Where a prospectus, together with any amendment to the prospectus, contains a misrepresentation, a purchaser who purchases a security offered by the prospectus during the period of distribution or during distribution to the public has, without regard to whether the purchaser relied on the misrepresentation, a right of action for damages against,
the issuer or a selling security holder on whose behalf the distribution is made;
each underwriter of the securities who is required to sign the certificate required by section 59;
every director of the issuer at the time the prospectus or the amendment to the prospectus was filed;
every person or company whose consent to disclosure of information in the prospectus has been filed pursuant to a requirement of the regulations but only with respect to reports, opinions or statements that have been made by them; and
every person or company who signed the prospectus or the amendment to the prospectus other than the persons or companies included in clauses (a) to (d),
or, where the purchaser purchased the security from a person or company referred to in clause (a) or (b) or from another underwriter of the securities, the purchaser may elect to exercise a right of rescission against such person, company or underwriter, in which case the purchaser shall have no right of action for damages against such person, company or underwriter. ; ;
No person or company is liable under subsection (1) if he, she or it proves that the purchaser purchased the securities with knowledge of the misrepresentation.
No person or company, other than the issuer or selling security holder, is liable under subsection (1) if he, she or it proves,
that the prospectus or the amendment to the prospectus was filed without his, her or its knowledge or consent, and that, on becoming aware of its filing, he, she or it forthwith gave reasonable general notice that it was so filed;
that, after the issue of a receipt for the prospectus and before the purchase of the securities by the purchaser, on becoming aware of any misrepresentation in the prospectus or an amendment to the prospectus he, she or it withdrew the consent thereto and gave reasonable general notice of such withdrawal and the reason therefor;
that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the authority of an expert or purporting to be a copy of or an extract from a report, opinion or statement of an expert, he, she or it had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that such part of the prospectus or the amendment to the prospectus did not fairly represent the report, opinion or statement of the expert or was not a fair copy of or extract from the report, opinion or statement of the expert;
that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on his, her or its own authority as an expert or purporting to be a copy of or an extract from his, her or its own report, opinion or statement as an expert but that contains a misrepresentation attributable to failure to represent fairly his, her or its report, opinion or statement as an expert,
the person or company had, after reasonable investigation, reasonable grounds to believe and did believe that such part of the prospectus or the amendment to the prospectus fairly represented his, her or its report, opinion or statement, or
on becoming aware that such part of the prospectus or the amendment to the prospectus did not fairly represent his, her or its report, opinion or statement as an expert, he, she or it forthwith advised the Commission and gave reasonable general notice that such use had been made and that he, she or it would not be responsible for that part of the prospectus or the amendment to the prospectus; or
that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document, and he, she or it had reasonable grounds to believe and did believe that the statement was true.
No person or company, other than the issuer or selling security holder, is liable under subsection (1) with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on his, her or its own authority as an expert or purporting to be a copy of or an extract from his, her or its own report, opinion or statement as an expert unless he, she or it,
failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation; or
believed there had been a misrepresentation.
No person or company, other than the issuer or selling security holder, is liable under subsection (1) with respect to any part of the prospectus or the amendment to the prospectus not purporting to be made on the authority of an expert and not purporting to be a copy of or an extract from a report, opinion or statement of an expert unless he, she or it,
failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation; or
believed there had been a misrepresentation.
No underwriter is liable for more than the total public offering price represented by the portion of the distribution underwritten by the underwriter.
In an action for damages pursuant to subsection (1), the defendant is not liable for all or any portion of such damages that the defendant proves do not represent the depreciation in value of the security as a result of the misrepresentation relied upon.
All or any one or more of the persons or companies specified in subsection (1) are jointly and severally liable, and every person or company who becomes liable to make any payment under this section may recover a contribution from any person or company who, if sued separately, would have been liable to make the same payment provided that the court may deny the right to recover such contribution where, in all the circumstances of the case, it is satisfied that to permit recovery of such contribution would not be just and equitable.
In no case shall the amount recoverable under this section exceed the price at which the securities were offered to the public.
The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the purchaser may have at law.
(1) Where an offering memorandum contains a misrepresentation, a purchaser who purchases a security offered by the offering memorandum during the period of distribution has, without regard to whether the purchaser relied on the misrepresentation, the following rights:
The purchaser has a right of action for damages against the issuer and a selling security holder on whose behalf the distribution is made.
If the purchaser purchased the security from a person or company referred to in paragraph 1, the purchaser may elect to exercise a right of rescission against the person or company. If the purchaser exercises this right, the purchaser ceases to have a right of action for damages against the person or company.
No person or company is liable under subsection (1) if he, she or it proves that the purchaser purchased the securities with knowledge of the misrepresentation.
In an action for damages pursuant to subsection (1), the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the security as a result of the misrepresentation relied upon.
Subject to subsection (5), all or any one or more of the persons or companies specified in subsection (1) are jointly and severally liable, and every person or company who becomes liable to make any payment under this section may recover a contribution from any person or company who, if sued separately, would have been liable to make the same payment, unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.
Despite subsection (4), an issuer shall not be liable where it is not receiving any proceeds from the distribution of the securities being distributed and the misrepresentation was not based on information provided by the issuer, unless the misrepresentation,
was based on information that was previously publicly disclosed by the issuer;
was a misrepresentation at the time of its previous public disclosure; and
was not subsequently publicly corrected or superseded by the issuer prior to the completion of the distribution of the securities being distributed.
In no case shall the amount recoverable under this section exceed the price at which the securities were offered.
The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the purchaser may have at law.
This section applies only with respect to an offering memorandum which has been furnished to a prospective purchaser in connection with a distribution of a security under an exemption from section 53 of the Act that is specified in the regulations for the purposes of this section.
(1) Where a take-over bid circular sent to the security holders of an offeree issuer as required by the regulations related to Part XX, or any notice of change or variation in respect of the circular, contains a misrepresentation, a security holder may, without regard to whether the security holder relied on the misrepresentation, elect to exercise a right of action for rescission or damages against the offeror or a right of action for damages against,
every person who at the time the circular or notice, as the case may be, was signed was a director of the offeror;
every person or company whose consent in respect of the circular or notice, as the case may be, has been filed pursuant to a requirement of the regulations but only with respect to reports, opinions or statements that have been made by the person or company; and
each person who signed a certificate in the circular or notice, as the case may be, other than the persons included in clause (a). ; ;
Where a directors’ circular or a director’s or officer’s circular delivered to the security holders of an offeree issuer as required by the regulations related to Part XX, or any notice of change or variation in respect of the circular, contains a misrepresentation, a security holder has, without regard to whether the security holder relied on the misrepresentation, a right of action for damages against every director or officer who signed the circular or notice that contained the misrepresentation. ; ;
Subsection (1) applies with necessary modifications where an issuer bid circular or any notice of change or variation in respect thereof contains a misrepresentation.
that the take-over bid circular, issuer bid circular, directors’ circular or director’s or officer’s circular, as the case may be, was sent without his, her or its knowledge or consent and that, on becoming aware of it, he, she or it forthwith gave reasonable general notice that it was so sent;
that, after the sending of the take-over bid circular, issuer bid circular, directors’ circular or director’s or officer’s circular, as the case may be, on becoming aware of any misrepresentation in the take-over bid circular, issuer bid circular, directors’ circular or director’s or officer’s circular, he, she or it withdrew the consent thereto and gave reasonable general notice of the withdrawal and the reason therefor;
that, with respect to any part of the circular purporting to be made on the authority of an expert or purporting to be a copy of or an extract from a report, opinion or statement of an expert, he, she or it had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that such part of the circular did not fairly represent the report, opinion or statement of the expert or was not a fair copy of or extract from the report, opinion or statement of the expert;
that, with respect to any part of the circular purporting to be made on his, her or its own authority as an expert or purporting to be a copy of or an extract from his, her or its own report, opinion or statement as an expert, but that contains a misrepresentation attributable to failure to represent fairly his, her or its report, opinion or statement as an expert,
the person or company had, after reasonable investigation, reasonable grounds to believe and did believe that such part of the circular fairly represented his, her or its report, opinion or statement as an expert, or
on becoming aware that such part of the circular did not fairly represent his, her or its report, opinion or statement as an expert, he, she or it forthwith advised the Commission and gave reasonable general notice that such use had been made and that he, she or it would not be responsible for that part of the circular; or
that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document and he, she or it had reasonable grounds to believe and did believe that the statement was true. ;
No person or company, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular purporting to be made on his, her or its own authority as an expert or purporting to be a copy of or an extract from his, her or its own report, opinion or statement as an expert unless he, she or it,
failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation; or
believed there had been a misrepresentation.
No person or company, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular not purporting to be made on the authority of an expert and not purporting to be a copy of or an extract from a report, opinion or statement of an expert unless he, she or it,
failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation; or
believed there had been a misrepresentation.
All or any one or more of the persons or companies specified in subsection (1), (2) or (3) are jointly and severally liable, and every person or company who becomes liable to make any payment under this section may recover a contribution from any person or company who, if sued separately, would have been liable to make the same payment provided that the court may deny the right to recover such contribution where, in all the circumstances of the case, it is satisfied that to permit recovery of such contribution would not be just and equitable.
In an action for damages pursuant to subsection (1), (2) or (3) based on a misrepresentation affecting a security offered by the offeror company in exchange for securities of the offeree company, the defendant is not liable for all or any portion of such damages that the defendant proves do not represent the depreciation in value of the security as a result of the misrepresentation.
Where the offeror in an issuer bid made in the normal course through the facilities of a designated exchange in reliance on an exemption set out in the regulations related to Part XX is required by the by-laws, regulations or policies of the applicable designated exchange to file with it or deliver to security holders of the offeree issuer a disclosure document, the disclosure document shall be deemed, for the purposes of this section, to be an issuer bid circular delivered to the security holders as required by Part XX or the regulations related to Part XX.
The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the security holders of the offeree issuer may have at law.
The document containing the forward-looking information contained, proximate to that information,
reasonable cautionary language identifying the forward-looking information as such, and identifying material factors that could cause actual results to differ materially from a conclusion, forecast or projection in the forward-looking information, and
a statement of the material factors or assumptions that were applied in drawing a conclusion or making a forecast or projection set out in the forward-looking information.
The person or company had a reasonable basis for drawing the conclusions or making the forecasts and projections set out in the forward-looking information.
Subsection (1) does not relieve a person or company of liability respecting forward-looking information in a financial statement or forward-looking information in a document released in connection with an initial public offering.
Each of the following has a right of action for rescission or damages against the dealer or offeror who failed to comply with the applicable requirement:
A purchaser of a security to whom a prospectus was required to be sent or delivered but was not sent or delivered in compliance with subsection 71 (1).
A purchaser of an investment fund security to whom a prescribed disclosure document referred to in subsection 71 (1.1) was required to be sent or delivered but was not sent or delivered in compliance with the regulations.
2.1 A purchaser of a prescribed investment fund security trading on an exchange or an alternative trading system to whom a prescribed disclosure document referred to in subsection 71 (1.3) was required to be sent or delivered but was not sent or delivered in compliance with the regulations.
A security holder to whom a take-over bid and take-over bid circular or an issuer bid and an issuer bid circular, or any notice of change or variation to any such bid or circular, were required by the regulations related to Part XX to be sent or delivered but were not sent or delivered in compliance with that Part. ; ;
(1) Every person or company in a special relationship with an issuer who purchases or sells securities of the issuer with knowledge of a material fact or material change with respect to the issuer that has not been generally disclosed is liable to compensate the seller or purchaser of the securities, as the case may be, for damages as a result of the trade unless,
the person or company in the special relationship with the issuer proves that the person or company reasonably believed that the material fact or material change had been generally disclosed; or
the material fact or material change was known or ought reasonably to have been known to the seller or purchaser, as the case may be. ;
Every,
issuer;
person or company in a special relationship with an issuer;
person or company that is considering or evaluating whether to make a take-over bid, as defined in Part XX, or that proposes to make a take-over bid, as defined in Part XX, for the securities of the issuer; and
person or company that is considering or evaluating whether to become a party, or that proposes to become a party, to a reorganization, amalgamation, merger or arrangement or similar business combination with the issuer or to acquire a substantial portion of its property,
and who informs another person or company of a material fact or material change with respect to the issuer that has not been generally disclosed is liable to compensate for damages any person or company that thereafter sells securities of the issuer to or purchases securities of the issuer from the person or company that received the information unless,
the person or company who informed the other person or company proves that the informing person or company reasonably believed the material fact or material change had been generally disclosed;
the material fact or material change was known or ought reasonably to have been known to the seller or purchaser, as the case may be;
in the case of an action against an issuer or a person in a special relationship with the issuer, the information was given in the necessary course of business; or
in the case of an action against a person or company described in clause (c) or (c.1), the information was given in the necessary course of business relating to the take-over bid, business combination or acquisition. ; ;
A person or company is accountable to a mutual fund in Ontario for any benefit or advantage received or receivable as a result of a purchase or sale of securities of an issuer if,
the portfolio securities of the mutual fund include securities of that issuer; and
the person or company,
has access to information concerning the investment program of the mutual fund, and
uses that information for his, her or its direct benefit or advantage to purchase or sell securities of that issuer for his, her or its own account.
A person or company is accountable to a client of a registrant for any benefit or advantage received or receivable as a result of a purchase or sale of securities of an issuer if,
an investment portfolio is managed for the client by the registrant through discretionary authority provided by the client;
the portfolio securities of the investment portfolio include securities of that issuer;
the registrant is a registered adviser or registered dealer; and
the person or company has,
access to information concerning the investment portfolio, and
uses that information for his, her or its direct benefit or advantage to purchase or sell securities of that issuer.
Every person or company who is an insider, affiliate or associate of an issuer that,
sells or purchases the securities of the issuer with knowledge of a material fact or material change with respect to the issuer that has not been generally disclosed; or
communicates to another person, other than in the necessary course of business, knowledge of a material fact or material change with respect to the issuer that has not been generally disclosed,
is accountable to the issuer for any benefit or advantage received or receivable by the person or company as a result of the purchase, sale or communication, as the case may be, unless the person or company proves that the person or company reasonably believed that the material fact or material change had been generally disclosed. ;
Where more than one person or company in a special relationship with an issuer is liable under subsection (1) or (2) as to the same transaction or series of transactions, their liability is joint and several. ;
In assessing damages under subsection (1) or (2), the court shall consider,
if the plaintiff is a purchaser, the price paid by the plaintiff for the security less the average market price of the security in the twenty trading days following general disclosure of the material fact or material change; or
if the plaintiff is a vendor, the average market price of the security in the twenty trading days following general disclosure of the material fact or material change less the price received by the plaintiff for the security,
but the court may instead consider such other measures of damages as may be relevant in the circumstances.
For the purposes of this section,
“person or company in a special relationship with an issuer” has the same meaning as in subsection 76 (5); (“personne ou compagnie ayant des rapports particuliers avec un émetteur assujetti”)
“issuer” means,
a reporting issuer, or
any other issuer whose securities are publicly traded; (“émetteur”) ; ;
For the purposes of subsections (1) and (2), a security of the issuer shall be deemed to include,
a put, call, option or other right or obligation to purchase or sell securities of the issuer;
a security, the market price of which varies materially with the market price of the securities of the issuer; or
a related derivative. ; ;
the Commission or the person or company has reasonable grounds for believing that the reporting issuer has a cause of action under subsection 134 (4); and
either,
the reporting issuer has refused or failed to commence an action under section 134 within sixty days after receipt of a written request from the Commission or such person or company so to do, or
the reporting issuer has failed to prosecute diligently an action commenced by it under section 134,
make an order, upon such terms as to security for costs and otherwise as to the judge seems fit, requiring the Commission or authorizing such person or company or the Commission to commence or continue an action in the name of and on behalf of the reporting issuer to enforce the liability created by subsection 134 (4). ;
Upon the application by the Commission or any person or company who was at the time of a transaction referred to in subsection 134 (3) or is at the time of the application a security holder of the mutual fund, a judge of the Superior Court of Justice may, if satisfied that,
the Commission or the person or company has reasonable grounds for believing that the mutual fund has a cause of action under subsection 134 (3); and
the mutual fund has either,
refused or failed to commence an action under subsection 134 (3) within sixty days after receipt of a written request from the Commission or the person or company so to do, or
failed to prosecute diligently an action commenced by it under subsection 134 (3),
make an order, upon terms as to security for costs or otherwise as to the judge seems proper, requiring the Commission or authorizing the person or company or the Commission to commence and prosecute or to continue an action in the name of and on behalf of the mutual fund to enforce the liability created by subsection 134 (3). ;
Where an action under subsection 134 (3), (3.1) or (4) is,
commenced;
commenced and prosecuted; or
continued,
by a board of directors of a reporting issuer, the trial judge or, on motion to the Superior Court of Justice, a judge of the Court may order that the costs properly incurred by the board of directors in commencing, commencing and prosecuting or continuing the action, as the case may be, shall be paid by the reporting issuer, if the judge is satisfied that there were apparent grounds for believing the action was in the best interests of the reporting issuer and the security holders thereof. ; ;
Where an action under subsection 134 (3), (3.1) or (4) is,
commenced;
commenced and prosecuted; or
continued,
by a person or company who is a security holder of the reporting issuer, the trial judge or, on motion to the Superior Court of Justice, a judge of the Court may order that the costs properly incurred by such person or company in commencing, commencing and prosecuting or continuing the action, as the case may be, shall be paid by the reporting issuer, if the judge is satisfied that,
the reporting issuer failed to commence the action or had commenced it but had failed to prosecute it diligently; and
there are apparent grounds for believing that the continuance of the action is in the best interests of the reporting issuer and the security holders thereof. ; ;
Where an action under subsection 134 (3), (3.1) or (4) is,
commenced;
commenced and prosecuted; or
continued,
by the Commission, the trial judge or, on motion to the Superior Court of Justice, a judge of the Court shall order the reporting issuer to pay all costs properly incurred by the Commission in commencing, commencing and prosecuting or continuing the action, as the case may be. ; ;
In determining whether there are apparent grounds for believing that an action or its continuance is in the best interests of a reporting issuer and the security holders thereof, the judge shall consider the relationship between the potential benefit to be derived from the action by the reporting issuer and the security holders thereof and the cost involved in the prosecution of the action.
Notice of every application under subsection (1) or (2) shall be given to the Commission, the reporting issuer or the mutual fund, as the case may be, and each of them may appear and be heard thereon.
Every order made under subsection (1) or (2) requiring or authorizing the Commission to commence and prosecute or continue an action shall provide that the reporting issuer or mutual fund, as the case may be, shall co-operate fully with the Commission in the commencement and prosecution or continuation of the action, and shall make available to the Commission all books, records, documents and other material or information known to the reporting issuer or mutual fund or reasonably ascertainable by the reporting issuer or mutual fund relevant to such action.
An appeal lies to the Divisional Court from any order made under this section.
(1) If, contrary to Ontario securities law, a registered dealer fails to disclose to a person or company with whom it effects a purchase or sale of a security that it intended to act as principal in respect of the purchase or sale, the person or company may rescind the contract effecting the purchase or sale by mailing or delivering written notice of the rescission to the registered dealer within 60 days after the date of delivery of the security to or by the person or company, as the case may be.
If, contrary to Ontario securities law, a registered dealer fails to disclose to a person or company that it has acted as principal in respect of a purchase or sale of a security, the person or company may rescind the contract effecting the purchase or sale by mailing or delivering written notice of the rescission to the registered dealer within seven days after the date of the delivery to the person or company of the written confirmation of the contract.
For the purposes of subsection (2), a confirmation sent by ordinary letter mail is deemed to be delivered to the person or company to whom it was addressed in the ordinary course of mail.
Subsections (1) and (2) do not allow the rescission of a contract effecting the purchase of a security by a person or company if the person or company no longer owns the security.
In an action respecting a rescission to which subsection (1) or (2) applies, the onus of proving that a registered dealer disclosed that he, she or it acted or intended to act as principal is on the registered dealer.
No action respecting a rescission shall be commenced under this section after the expiration of a period of 90 days from the date of delivery of the notice under subsection (1) or (2).
(1) Every purchaser of a security of a mutual fund in Ontario may, where the amount of the purchase does not exceed the sum of $50,000, rescind the purchase by notice given to the registered dealer from whom the purchase was made within forty-eight hours after receipt of the confirmation for a lump sum purchase or within sixty days after receipt of the confirmation for the initial payment under a contractual plan but, subject to subsection (5), the amount the purchaser is entitled to recover on exercise of this right to rescind shall not exceed the net asset value of the securities purchased, at the time the right is exercised.
The right to rescind a purchase made under a contractual plan may be exercised only with respect to payments scheduled to be made within the time specified in subsection (1) for rescinding a purchase made under a contractual plan.
The notice mentioned in subsection (1) shall be in writing, and may be given by prepaid mail, telegram or other means.
A confirmation sent by prepaid mail shall be deemed conclusively to have been received in the ordinary course of mail by the person or company to whom it was addressed.
Every registered dealer from whom the purchase was made shall reimburse the purchaser who has exercised the right of rescission in accordance with this section for the amount of sales charges and fees relevant to the investment of the purchaser in the mutual fund in respect of the shares or units of which the notice of exercise of the right of rescission was given.
Unless otherwise provided in this Act, no action shall be commenced to enforce a right created by this Part more than,
in the case of an action for rescission, 180 days after the date of the transaction that gave rise to the cause of action; or
in the case of any action, other than an action for rescission, the earlier of,
180 days after the plaintiff first had knowledge of the facts giving rise to the cause of action, or
three years after the date of the transaction that gave rise to the cause of action.
PART XXIII.1 CIVIL LIABILITY FOR SECONDARY MARKET DISCLOSURE
Interpretation and Application
In this Part,
“compensation” means compensation received during the 12-month period immediately preceding the day on which the misrepresentation was made or on which the failure to make timely disclosure first occurred, together with the fair market value of all deferred compensation including, without limitation, options, pension benefits and stock appreciation rights, granted during the same period, valued as of the date that such compensation is awarded; (“rémunération”)
“core document” means,
a prospectus, a take-over bid circular, an issuer bid circular, a directors’ circular, a notice of change or variation in respect of a take-over bid circular, issuer bid circular or directors’ circular, a rights offering circular, management’s discussion and analysis, an annual information form, an information circular, annual financial statements and an interim financial report of the responsible issuer, where used in relation to,
a director of a responsible issuer who is not also an officer of the responsible issuer,
an influential person, other than an officer of the responsible issuer or an investment fund manager where the responsible issuer is an investment fund, or
a director or officer of an influential person who is not also an officer of the responsible issuer, other than an officer of an investment fund manager,
a prospectus, a take-over bid circular, an issuer bid circular, a directors’ circular, a notice of change or variation in respect of a take-over bid circular, issuer bid circular or directors’ circular, a rights offering circular, management’s discussion and analysis, an annual information form, an information circular, annual financial statements, an interim financial report and a material change report required by subsection 75 (2) or the regulations of the responsible issuer, where used in relation to,
a responsible issuer or an officer of the responsible issuer,
an investment fund manager, where the responsible issuer is an investment fund, or
an officer of an investment fund manager, where the responsible issuer is an investment fund, or
such other documents as may be prescribed by regulation for the purposes of this definition; (“document essentiel”)
“document” means any written communication, including a communication prepared and transmitted only in electronic form,
that is required to be filed with the Commission, or
that is not required to be filed with the Commission and,
that is filed with the Commission,
that is filed or required to be filed with a government or an agency of a government under applicable securities or corporate law or with any exchange or quotation and trade reporting system under its by-laws, rules or regulations, or
that is any other communication the content of which would reasonably be expected to affect the market price or value of a security of the responsible issuer; (“document”)
“expert” means a person or company whose profession gives authority to a statement made in a professional capacity by the person or company, including, without limitation, an accountant, actuary, appraiser, auditor, engineer, financial analyst, geologist or lawyer, but not including a designated credit rating organization; (“expert”)
“failure to make timely disclosure” means a failure to disclose a material change in the manner and at the time required under this Act or the regulations; (“non-respect des obligations d’information occasionnelle”)
“influential person” means, in respect of a responsible issuer,
a control person,
a promoter,
an insider who is not a director or officer of the responsible issuer, or
an investment fund manager, if the responsible issuer is an investment fund; (“personne influente”)
“issuer’s security” means a security of a responsible issuer and includes a security,
the market price or value of which, or payment obligations under which, are derived from or based on a security of the responsible issuer, and
which is created by a person or company on behalf of the responsible issuer or is guaranteed by the responsible issuer; (“valeur mobilière d’un émetteur”)
“liability limit” means,
in the case of a responsible issuer, the greater of,
5 per cent of its market capitalization (as such term is defined in the regulations), and
$1 million,
in the case of a director or officer of a responsible issuer, the greater of,
$25,000, and
50 per cent of the aggregate of the director’s or officer’s compensation from the responsible issuer and its affiliates,
in the case of an influential person who is not an individual, the greater of,
5 per cent of its market capitalization (as defined in the regulations), and
$1 million,
in the case of an influential person who is an individual, the greater of,
$25,000, and
50 per cent of the aggregate of the influential person’s compensation from the responsible issuer and its affiliates,
in the case of a director or officer of an influential person, the greater of,
$25,000, and
50 per cent of the aggregate of the director’s or officer’s compensation from the influential person and its affiliates,
in the case of an expert, the greater of,
$1 million, and
the revenue that the expert and the affiliates of the expert have earned from the responsible issuer and its affiliates during the 12 months preceding the misrepresentation, and
$25,000, and
50 per cent of the aggregate of the person’s compensation from the responsible issuer and its affiliates; (“limite de responsabilité”)
“management’s discussion and analysis” means the section of an annual information form, annual report or other document that contains management’s discussion and analysis of the financial condition and financial performance of a responsible issuer as required under Ontario securities law; (“rapport de gestion”)
“public oral statement” means an oral statement made in circumstances in which a reasonable person would believe that information contained in the statement will become generally disclosed; (“déclaration orale publique”)
“release” means, with respect to information or a document, to file with the Commission or any other securities regulatory authority in Canada or an exchange or to otherwise make available to the public; (“publication”, “publier”)
“responsible issuer” means,
a reporting issuer, or
any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded; (“émetteur responsable”)
“trading day” means a day during which the principal market (as defined in the regulations) for the security is open for trading. (“jour de Bourse”) ; ; ; ; ;
This Part does not apply to,
the purchase of a security offered by a prospectus during the period of distribution;
the acquisition or disposition of an issuer’s security in connection with or pursuant to a take-over bid or issuer bid, except as may be prescribed by regulation; or
such other transactions or class of transactions as may be prescribed by regulation. ;
Liability
(1) Where a responsible issuer or a person or company with actual, implied or apparent authority to act on behalf of a responsible issuer releases a document that contains a misrepresentation, a person or company who acquires or disposes of the issuer’s security during the period between the time when the document was released and the time when the misrepresentation contained in the document was publicly corrected has, without regard to whether the person or company relied on the misrepresentation, a right of action for damages against,
the responsible issuer;
each director of the responsible issuer at the time the document was released;
each officer of the responsible issuer who authorized, permitted or acquiesced in the release of the document;
each influential person, and each director and officer of an influential person, who knowingly influenced,
the responsible issuer or any person or company acting on behalf of the responsible issuer to release the document, or
a director or officer of the responsible issuer to authorize, permit or acquiesce in the release of the document; and
each expert where,
the misrepresentation is also contained in a report, statement or opinion made by the expert,
the document includes, summarizes or quotes from the report, statement or opinion of the expert, and
if the document was released by a person or company other than the expert, the expert consented in writing to the use of the report, statement or opinion in the document. ;
Where a person with actual, implied or apparent authority to speak on behalf of a responsible issuer makes a public oral statement that relates to the business or affairs of the responsible issuer and that contains a misrepresentation, a person or company who acquires or disposes of the issuer’s security during the period between the time when the public oral statement was made and the time when the misrepresentation contained in the public oral statement was publicly corrected has, without regard to whether the person or company relied on the misrepresentation, a right of action for damages against,
the responsible issuer;
the person who made the public oral statement;
each director and officer of the responsible issuer who authorized, permitted or acquiesced in the making of the public oral statement;
each influential person, and each director and officer of the influential person, who knowingly influenced,
the person who made the public oral statement to make the public oral statement, or
a director or officer of the responsible issuer to authorize, permit or acquiesce in the making of the public oral statement; and
each expert where,
the misrepresentation is also contained in a report, statement or opinion made by the expert,
the person making the public oral statement includes, summarizes or quotes from the report, statement or opinion of the expert, and
if the public oral statement was made by a person other than the expert, the expert consented in writing to the use of the report, statement or opinion in the public oral statement. ;
Where an influential person or a person or company with actual, implied or apparent authority to act or speak on behalf of the influential person releases a document or makes a public oral statement that relates to a responsible issuer and that contains a misrepresentation, a person or company who acquires or disposes of the issuer’s security during the period between the time when the document was released or the public oral statement was made and the time when the misrepresentation contained in the document or public oral statement was publicly corrected has, without regard to whether the person or company relied on the misrepresentation, a right of action for damages against,
the responsible issuer, if a director or officer of the responsible issuer, or where the responsible issuer is an investment fund, the investment fund manager, authorized, permitted or acquiesced in the release of the document or the making of the public oral statement;
the person who made the public oral statement;
each director and officer of the responsible issuer who authorized, permitted or acquiesced in the release of the document or the making of the public oral statement;
the influential person;
each director and officer of the influential person who authorized, permitted or acquiesced in the release of the document or the making of the public oral statement; and
each expert where,
the misrepresentation is also contained in a report, statement or opinion made by the expert,
the document or public oral statement includes, summarizes or quotes from the report, statement or opinion of the expert, and
if the document was released or the public oral statement was made by a person other than the expert, the expert consented in writing to the use of the report, statement or opinion in the document or public oral statement. ;
Where a responsible issuer fails to make a timely disclosure, a person or company who acquires or disposes of the issuer’s security between the time when the material change was required to be disclosed in the manner required under this Act or the regulations and the subsequent disclosure of the material change has, without regard to whether the person or company relied on the responsible issuer having complied with its disclosure requirements, a right of action for damages against,
the responsible issuer;
each director and officer of the responsible issuer who authorized, permitted or acquiesced in the failure to make timely disclosure; and
each influential person, and each director and officer of an influential person, who knowingly influenced,
the responsible issuer or any person or company acting on behalf of the responsible issuer in the failure to make timely disclosure, or
a director or officer of the responsible issuer to authorize, permit or acquiesce in the failure to make timely disclosure. ; ;
In an action under this section, a person who is a director or officer of an influential person is not liable in that capacity if the person is liable as a director or officer of the responsible issuer. ;
In an action under this section,
multiple misrepresentations having common subject matter or content may, in the discretion of the court, be treated as a single misrepresentation; and
multiple instances of failure to make timely disclosure of a material change or material changes concerning common subject matter may, in the discretion of the court, be treated as a single failure to make timely disclosure. ;
In an action under subsection (2) or (3), if the person who made the public oral statement had apparent authority, but not implied or actual authority, to speak on behalf of the issuer, no other person is liable with respect to any of the responsible issuer’s securities that were acquired or disposed of before that other person became, or should reasonably have become, aware of the misrepresentation.
knew, at the time that the document was released or public oral statement was made, that the document or public oral statement contained the misrepresentation;
at or before the time that the document was released or public oral statement was made, deliberately avoided acquiring knowledge that the document or public oral statement contained the misrepresentation; or
was, through action or failure to act, guilty of gross misconduct in connection with the release of the document or the making of the public oral statement that contained the misrepresentation. ;
A plaintiff is not required to prove any of the matters set out in subsection (1) in an action under section 138.3 in relation to an expert. ;
knew, at the time that the failure to make timely disclosure first occurred, of the change and that the change was a material change;
at the time or before the failure to make timely disclosure first occurred, deliberately avoided acquiring knowledge of the change or that the change was a material change; or
was, through action or failure to act, guilty of gross misconduct in connection with the failure to make timely disclosure. ;
a responsible issuer;
an officer of a responsible issuer;
an investment fund manager; or
an officer of an investment fund manager. ;
A person or company is not liable in an action under section 138.3 in relation to a misrepresentation or a failure to make timely disclosure if that person or company proves that the plaintiff acquired or disposed of the issuer’s security,
with knowledge that the document or public oral statement contained a misrepresentation; or
with knowledge of the material change. ;
A person or company is not liable in an action under section 138.3 in relation to,
a misrepresentation if that person or company proves that,
before the release of the document or the making of the public oral statement containing the misrepresentation, the person or company conducted or caused to be conducted a reasonable investigation, and
at the time of the release of the document or the making of the public oral statement, the person or company had no reasonable grounds to believe that the document or public oral statement contained the misrepresentation; or
a failure to make timely disclosure if that person or company proves that,
before the failure to make timely disclosure first occurred, the person or company conducted or caused to be conducted a reasonable investigation, and
the person or company had no reasonable grounds to believe that the failure to make timely disclosure would occur. ;
the nature of the responsible issuer;
the knowledge, experience and function of the person or company;
the office held, if the person was an officer;
the presence or absence of another relationship with the responsible issuer, if the person was a director;
the existence, if any, and the nature of any system designed to ensure that the responsible issuer meets its continuous disclosure obligations;
the reasonableness of reliance by the person or company on the responsible issuer’s disclosure compliance system and on the responsible issuer’s officers, employees and others whose duties would in the ordinary course have given them knowledge of the relevant facts;
the period within which disclosure was required to be made under the applicable law;
in respect of a report, statement or opinion of an expert, any professional standards applicable to the expert;
the extent to which the person or company knew, or should reasonably have known, the content and medium of dissemination of the document or public oral statement;
in the case of a misrepresentation, the role and responsibility of the person or company in the preparation and release of the document or the making of the public oral statement containing the misrepresentation or the ascertaining of the facts contained in that document or public oral statement; and
in the case of a failure to make timely disclosure, the role and responsibility of the person or company involved in a decision not to disclose the material change. ;
A person or company is not liable in an action under section 138.3 in respect of a failure to make timely disclosure if,
the person or company proves that the material change was disclosed by the responsible issuer in a report filed on a confidential basis with the Commission under subsection 75 (3) or the regulations;
the responsible issuer had a reasonable basis for making the disclosure on a confidential basis;
where the information contained in the report filed on a confidential basis remains material, disclosure of the material change was made public promptly when the basis for confidentiality ceased to exist;
the person or company or responsible issuer did not release a document or make a public oral statement that, due to the undisclosed material change, contained a misrepresentation; and
where the material change became publicly known in a manner other than the manner required under this Act or the regulations, the responsible issuer promptly disclosed the material change in the manner required under this Act or the regulations. ; ;
A person or company is not liable in an action under section 138.3 for a misrepresentation in forward-looking information if the person or company proves all of the following things:
The document or public oral statement containing the forward-looking information contained, proximate to that information,
reasonable cautionary language identifying the forward-looking information as such, and identifying material factors that could cause actual results to differ materially from a conclusion, forecast or projection in the forward-looking information, and
a statement of the material factors or assumptions that were applied in drawing a conclusion or making a forecast or projection set out in the forward-looking information.
The person or company had a reasonable basis for drawing the conclusions or making the forecasts and projections set out in the forward-looking information.
The person or company shall be deemed to have satisfied the requirements of paragraph 1 of subsection (9) with respect to a public oral statement containing forward‑looking information if the person who made the public oral statement,
made a cautionary statement that the oral statement contains forward‑looking information;
stated that,
the actual results could differ materially from a conclusion, forecast or projection in the forward-looking information, and
certain material factors or assumptions were applied in drawing a conclusion or making a forecast or projection as reflected in the forward-looking information; and
stated that additional information about,
the material factors that could cause actual results to differ materially from the conclusion, forecast or projection in the forward-looking information, and
the material factors or assumptions that were applied in drawing a conclusion or making a forecast or projection as reflected in the forward-looking information,
is contained in a readily-available document or in a portion of such a document and has identified that document or that portion of the document.
For the purposes of clause (9.1) (c), a document filed with the Commission or otherwise generally disclosed shall be deemed to be readily available.
Subsection (9) does not relieve a person or company of liability respecting forward-looking information in a financial statement required to be filed under this Act or the regulations or forward-looking information in a document released in connection with an initial public offering. ;
A person or company, other than an expert, is not liable in an action under section 138.3 with respect to any part of a document or public oral statement that includes, summarizes or quotes from a report, statement or opinion made by the expert in respect of which the responsible issuer obtained the written consent of the expert to the use of the report, statement or opinion, if the consent had not been withdrawn in writing before the document was released or the public oral statement was made, if the person or company proves that,
the person or company did not know and had no reasonable grounds to believe that there had been a misrepresentation in the part of the document or public oral statement made on the authority of the expert; and
the part of the document or oral public statement fairly represented the report, statement or opinion made by the expert. ;
An expert is not liable in an action under section 138.3 with respect to any part of a document or public oral statement that includes, summarizes or quotes from a report, statement or opinion made by the expert, if the expert proves that the written consent previously provided was withdrawn in writing before the document was released or the public oral statement was made. ;
A person or company is not liable in an action under section 138.3 in respect of a misrepresentation in a document, other than a document required to be filed with the Commission, if the person or company proves that, at the time of release of the document, the person or company did not know and had no reasonable grounds to believe that the document would be released. ;
A person or company is not liable in an action under section 138.3 for a misrepresentation in a document or a public oral statement, if the person or company proves that,
the misrepresentation was also contained in a document filed by or on behalf of another person or company, other than the responsible issuer, with the Commission or any other securities regulatory authority in Canada or an exchange and was not corrected in another document filed by or on behalf of that other person or company with the Commission or that other securities regulatory authority in Canada or exchange before the release of the document or the public oral statement made by or on behalf of the responsible issuer;
the document or public oral statement contained a reference identifying the document that was the source of the misrepresentation; and
when the document was released or the public oral statement was made, the person or company did not know and had no reasonable grounds to believe that the document or public oral statement contained a misrepresentation. ; ;
A person or company, other than the responsible issuer, is not liable in an action under section 138.3 if the misrepresentation or failure to make timely disclosure was made without the knowledge or consent of the person or company and, if, after the person or company became aware of the misrepresentation before it was corrected, or the failure to make timely disclosure before it was disclosed in the manner required under this Act or the regulations,
the person or company promptly notified the board of directors of the responsible issuer or other persons acting in a similar capacity of the misrepresentation or the failure to make timely disclosure; and
if no correction of the misrepresentation or no subsequent disclosure of the material change in the manner required under this Act or the regulations was made by the responsible issuer within two business days after the notification under clause (a), the person or company, unless prohibited by law or by professional confidentiality rules, promptly and in writing notified the Commission of the misrepresentation or failure to make timely disclosure. ; ;
Damages
(1) Damages shall be assessed in favour of a person or company that acquired an issuer’s securities after the release of a document or the making of a public oral statement containing a misrepresentation or after a failure to make timely disclosure as follows:
In respect of any of the securities of the responsible issuer that the person or company subsequently disposed of on or before the 10th trading day after the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, assessed damages shall equal the difference between the average price paid for those securities (including any commissions paid in respect thereof) and the price received upon the disposition of those securities (without deducting any commissions paid in respect of the disposition), calculated taking into account the result of hedging or other risk limitation transactions.
In respect of any of the securities of the responsible issuer that the person or company subsequently disposed of after the 10th trading day after the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, assessed damages shall equal the lesser of,
an amount equal to the difference between the average price paid for those securities (including any commissions paid in respect thereof) and the price received upon the disposition of those securities (without deducting any commissions paid in respect of the disposition), calculated taking into account the result of hedging or other risk limitation transactions, and
an amount equal to the number of securities that the person disposed of, multiplied by the difference between the average price per security paid for those securities (including any commissions paid in respect thereof determined on a per security basis) and,
if the issuer’s securities trade on a published market, the trading price of the issuer’s securities on the principal market (as those terms are defined in the regulations) for the 10 trading days following the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, or
if there is no published market, the amount that the court considers just.
In respect of any of the securities of the responsible issuer that the person or company has not disposed of, assessed damages shall equal the number of securities acquired, multiplied by the difference between the average price per security paid for those securities (including any commissions paid in respect thereof determined on a per security basis) and,
if the issuer’s securities trade on a published market, the trading price of the issuer’ securities on the principal market (as those terms are defined in the regulations) for the 10 trading days following the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, or
if there is no published market, the amount that the court considers just. ; ;
Damages shall be assessed in favour of a person or company that disposed of securities after a document was released or a public oral statement made containing a misrepresentation or after a failure to make timely disclosure as follows:
In respect of any of the securities of the responsible issuer that the person or company subsequently acquired on or before the 10th trading day after the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, assessed damages shall equal the difference between the average price received upon the disposition of those securities (deducting any commissions paid in respect of the disposition) and the price paid for those securities (without including any commissions paid in respect thereof), calculated taking into account the result of hedging or other risk limitation transactions.
In respect of any of the securities of the responsible issuer that the person or company subsequently acquired after the 10th trading day after the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, assessed damages shall equal the lesser of,
an amount equal to the difference between the average price received upon the disposition of those securities (deducting any commissions paid in respect of the disposition) and the price paid for those securities (without including any commissions paid in respect thereof), calculated taking into account the result of hedging or other risk limitation transactions, and
an amount equal to the number of securities that the person disposed of, multiplied by the difference between the average price per security received upon the disposition of those securities (deducting any commissions paid in respect of the disposition determined on a per security basis) and,
if the issuer’s securities trade on a published market, the trading price of the issuer’s securities on the principal market (as those terms are defined in the regulations) for the 10 trading days following the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, or
if there is no published market, the amount that the court considers just.
In respect of any of the securities of the responsible issuer that the person or company has not acquired, assessed damages shall equal the number of securities that the person or company disposed of, multiplied by the difference between the average price per security received upon the disposition of those securities (deducting any commissions paid in respect of the disposition determined on a per security basis) and,
if the issuer’s securities trade on a published market, the trading price of the issuer’s securities on the principal market (as such terms are defined in the regulations) for the 10 trading days following the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, or
if there is no published market, then the amount that the court considers just. ; ; ;
Despite subsections (1) and (2), assessed damages shall not include any amount that the defendant proves is attributable to a change in the market price of securities that is unrelated to the misrepresentation or the failure to make timely disclosure.
(1) In an action under section 138.3, the court shall determine, in respect of each defendant found liable in the action, the defendant’s responsibility for the damages assessed in favour of all plaintiffs in the action, and each such defendant shall be liable, subject to the limits set out in subsection 138.7 (1), to the plaintiffs for only that portion of the aggregate amount of damages assessed in favour of the plaintiffs that corresponds to that defendant’s responsibility for the damages. ;
Despite subsection (1), where, in an action under section 138.3 in respect of a misrepresentation or a failure to make timely disclosure, a court determines that a particular defendant, other than the responsible issuer, authorized, permitted or acquiesced in the making of the misrepresentation or the failure to make timely disclosure while knowing it to be a misrepresentation or a failure to make timely disclosure, the whole amount of the damages assessed in the action may be recovered from that defendant. ;
Each defendant in respect of whom the court has made a determination under subsection (2) is jointly and severally liable with each other defendant in respect of whom the court has made a determination under subsection (2).
Any defendant against whom recovery is obtained under subsection (2) is entitled to claim contribution from any other defendant who is found liable in the action.
the aggregate damages assessed against the person or company in the action; and
the liability limit for the person or company less the aggregate of all damages assessed after appeals, if any, against the person or company in all other actions brought under section 138.3, and under comparable legislation in other provinces or territories in Canada in respect of that misrepresentation or failure to make timely disclosure, and less any amount paid in settlement of any such actions. ;
Subsection (1) does not apply to a person or company, other than the responsible issuer, if the plaintiff proves that the person or company authorized, permitted or acquiesced in the making of the misrepresentation or the failure to make timely disclosure while knowing that it was a misrepresentation or a failure to make timely disclosure, or influenced the making of the misrepresentation or the failure to make timely disclosure while knowing that it was a misrepresentation or a failure to make timely disclosure.
Procedural Matters
(1) No action may be commenced under section 138.3 without leave of the court granted upon motion with notice to each defendant. The court shall grant leave only where it is satisfied that,
the action is being brought in good faith; and
there is a reasonable possibility that the action will be resolved at trial in favour of the plaintiff. ;
Upon an application under this section, the plaintiff and each defendant shall serve and file one or more affidavits setting forth the material facts upon which each intends to rely.
The maker of such an affidavit may be examined on it in accordance with the rules of court.
A copy of the application for leave to proceed and any affidavits and factums filed with the court shall be sent to the Commission when filed.
The plaintiff shall provide the Commission with notice in writing of the date on which the application for leave is scheduled to proceed, at the same time such notice is given to each defendant.
If any party appeals the decision of the court with respect to whether leave to commence an action under section 138.3 is granted,
each party to the appeal shall provide a copy of its factum to the Commission when it is filed; and
the appellant shall provide the Commission with notice in writing of the date on which the appeal is scheduled to be heard, at the same time such notice is given to each respondent. ;
(1) A person or company that has been granted leave to commence an action under section 138.3 shall,
promptly issue a news release disclosing that leave has been granted to commence an action under section 138.3;
send a written notice to the Commission within seven days, together with a copy of the news release;
send a copy of the statement of claim or other originating document to the Commission when filed; and
provide the Commission with notice in writing of the date on which the trial of the action is scheduled to proceed, at the same time such notice is given to each defendant. ; ;
If any party to an action under section 138.3 appeals the decision of the court,
each party shall provide a copy of its factum to the Commission when it is filed; and
the appellant shall provide the Commission with notice in writing of the date on which the appeal is scheduled to be heard, at the same time such notice is given to each respondent.
An action under section 138.3 shall not be discontinued, abandoned or settled without the approval of the court given on such terms as the court thinks fit including, without limitation, terms as to costs, and in determining whether to approve the settlement of the action, the court shall consider, among other things, whether there are any other actions outstanding under section 138.3 or under comparable legislation in other provinces or territories in Canada in respect of the same misrepresentation or failure to make timely disclosure.
Despite the Courts of Justice Act and the Class Proceedings Act, 1992, the prevailing party in an action under section 138.3 is entitled to costs determined by a court in accordance with applicable rules of civil procedure. ;
The right of action for damages and the defences to an action under section 138.3 are in addition to, and without derogation from, any other rights or defences the plaintiff or defendant may have in an action brought otherwise than under this Part.
(1) No action shall be commenced under section 138.3,
in the case of misrepresentation in a document, later than the earlier of,
three years after the date on which the document containing the misrepresentation was first released, and
six months after the issuance of a news release disclosing that leave has been granted to commence an action under section 138.3 or under comparable legislation in the other provinces or territories in Canada in respect of the same misrepresentation;
in the case of a misrepresentation in a public oral statement, later than the earlier of,
three years after the date on which the public oral statement containing the misrepresentation was made, and
six months after the issuance of a news release disclosing that leave has been granted to commence an action under section 138.3 or under comparable legislation in another province or territory of Canada in respect of the same misrepresentation; and
in the case of a failure to make timely disclosure, later than the earlier of,
three years after the date on which the requisite disclosure was required to be made, and
six months after the issuance of a news release disclosing that leave has been granted to commence an action under section 138.3 or under comparable legislation in another province or territory of Canada in respect of the same failure to make timely disclosure. ;
A limitation period established by subsection (1) in respect of an action is suspended on the date a notice of motion for leave under section 138.8 is filed with the court and resumes running on the date,
the court grants leave or dismisses the motion and,
all appeals have been exhausted, or
the time for an appeal has expired without an appeal being filed; or
the motion is abandoned or discontinued.
PART XXIV GENERAL PROVISIONS
A statement as to,
the registration or non-registration of any person or company;
the filing or non-filing of any document or material required or permitted to be filed;
any other matter pertaining to such registration, non-registration, filing or non-filing, or to any such person, company, document or material; or
the date the facts upon which any proceedings are to be based first came to the knowledge of the Commission,
purporting to be certified by the Commission or a member thereof or by the Director is, without proof of the office or signature of the person certifying, admissible in evidence, so far as relevant, for all purposes in any action, proceeding or prosecution.
[Repealed]
(1) Where Ontario securities law requires that material be filed, the filing shall be effected by depositing the material, or causing it to be deposited, with the Commission and all material so filed shall, subject to subsection (2), be made available by the Commission for public inspection during the normal business hours of the Commission. ;
Despite subsection (1), the Commission may hold material or any class of material required to be filed by Ontario securities law in confidence so long as the Commission is of the opinion that the material so held discloses intimate financial, personal or other information and that the desirability of avoiding disclosure thereof in the interests of any person or company affected outweighs the desirability of adhering to the principle that material filed with the Commission be available to the public for inspection. ;
No person or company has any rights or remedies and no proceedings lie or shall be brought against any person or company for,
any act or omission of the last-mentioned person or company done or omitted in compliance with Ontario securities law; or
any disclosure of information by the last-mentioned person or company to the Commission, to a recognized self-regulatory organization, to a law enforcement agency or to any person or company acting under the authority of the Commission, of the recognized self-regulatory organization or of the law enforcement agency, if the person or company reasonably believed that the information was true and they,
reasonably believed that the information was related to an offence or to a contravention of Ontario securities law, or
provided the information as part of a review, investigation, examination or inspection by the Commission or the recognized self-regulatory organization or as part of a review, investigation, examination or inspection in respect of Ontario securities law by the law enforcement agency.
the Crown in right of Canada;
the Crown in right of Ontario; and
the Crown in right of any other province of Canada or the Government of a territory of Canada,
and agents and servants thereof. ; ;
the Crown in right of Canada;
the Crown in right of Ontario;
the Crown in right of any other province of Canada or the Government of a territory of Canada; or
The definition of “market participant” in subsection 1 (1) does not include,
the Crown in right of Canada;
the Crown in right of Ontario;
the Crown in right of any other province of Canada or the Government of a territory of Canada; or
Rules made under paragraph 11, paragraph 19.3 and subparagraphs 35 i, iii, iv, v and vii of subsection 143 (1) do not apply to derivatives traded by,
the Crown in right of Ontario or the Ontario Financing Authority when acting as agent for the Crown in right of Ontario;
the Crown in right of Canada;
the Crown in right of any other province of Canada or the Government of a territory of Canada; or
an agent or servant of the Crown in right of Ontario prescribed by the Lieutenant Governor in Council. ; ;
An agent or servant of the Crown in right of Ontario prescribed under clause 142 (3) (d) shall comply with such conditions and restrictions relating to the exception as may be prescribed by the Lieutenant Governor in Council. ;
(1) Subject to subsection (1.1), the Commission may make rules in respect of the following matters:
Prescribing requirements in respect of applications for registration and the renewal, amendment, expiration or surrender of registration and in respect of suspension, revocation or reinstatement of registration.
1.1 Requiring registered dealers, registered advisers or registered investment fund managers to designate an ultimate designated person and prescribing classes of individuals or the qualifications required of individuals who are eligible to be designated as ultimate designated persons.
1.2 Prescribing additional functions required to be performed by an ultimate designated person in respect of the registrant by whom he or she is designated, including requiring the ultimate designated person,
to supervise the activities of the registrant that are directed towards ensuring compliance with Ontario securities law by the registrant and individuals acting on the registrant’s behalf,
to otherwise promote compliance by the registrant and by individuals acting on the registrant’s behalf with Ontario securities law.
1.3 Requiring registered dealers, registered advisers or registered investment fund managers to designate a chief compliance officer and prescribing classes of individuals or the qualifications required of individuals who are eligible to be designated as chief compliance officers.
1.4 Prescribing additional functions required to be performed by a chief compliance officer in respect of the registrant by whom he or she is designated, including requiring the chief compliance officer,
to establish and maintain policies and procedures for assessing compliance with Ontario securities law by the registrant and individuals acting on the registrant’s behalf,
to monitor and assess compliance by the registrant and by individuals acting on the registrant’s behalf with Ontario securities law,
to report to the registrant’s ultimate designated person or to its board of directors or partners with respect to compliance matters,
to submit an annual report to the board of directors of the registrant or to the registrant’s partners setting out the chief compliance officer’s assessment of the level of compliance by the registrant and the individuals acting on its behalf with Ontario securities law.
1.5 Prescribing circumstances in which a suspended registration is or may be reinstated.
1.6 Prescribing activities in which a person or company whose registration is suspended or restricted may engage or activities in which he, she or it is prohibited from engaging.
Prescribing categories or subcategories of registration, classifying registrants into categories or sub-categories, prescribing the criteria a person or company must satisfy to qualify for registration in a particular category or sub-category of registration, prescribing requirements for registrants or prescribing terms and conditions on registration, reinstatement of registration, amendment of registration or registration in a particular category or sub-category of registration, including,
standards of practice and business conduct of registrants in dealing with their customers and clients and prospective customers and clients,
requirements that are advisable for the prevention or regulation of conflicts of interest,
requirements in respect of membership in a self-regulatory organization, and
requirements that persons and companies registered under this Act be bonded or insured on terms acceptable to the Director.
Extending any requirements prescribed under paragraph 2 to unregistered directors, partners, representatives and officers of registrants.
Prescribing requirements in respect of the residence in Ontario or Canada of registrants.
Governing the provision of notice to the Director of,
a proposed change in beneficial ownership of, or direct or indirect control or direction over, securities of a person or company registered under this Act,
a proposed change in beneficial ownership of, or direct or indirect control or direction over, securities of a person or company of which a person or company registered under this Act is a subsidiary, or
a proposed change in ownership of a substantial portion of the assets of a person or company registered under this Act.
5.1 Authorizing the Director to make an order that a proposed change described in subparagraph 5 i or iii must not be effected until the change has been approved by the Director.
Prescribing requirements for persons and companies in respect of calling at or telephoning to residences for the purposes of trading in securities.
Prescribing requirements in respect of the disclosure or furnishing of information to the public or the Commission by persons and companies registered under this Act, by their directors, partners or officers or by persons or companies that beneficially own, directly or indirectly, or exercise direct or indirect control or direction over at least 10 per cent of the voting securities of persons and companies registered under this Act or providing for exemptions from or varying the requirements under this Act in respect of the disclosure or furnishing of information to the public or the Commission by any of them.
Prescribing any matter referred to in Part XII (Exemptions from Registration Requirements) as required by the regulations or prescribed by or in the regulations, other than the matters referred to in subsection 35.1 (2).
8.1 Respecting the exemption of any person or company from any requirement under this Act or the regulations that is comparable to a requirement established by a self-regulatory organization and prescribing conditions that must be satisfied for the exemption to apply.
8.2 Exempting registered dealers from the requirement under subsection 36 (1) to send a customer a written confirmation of a transaction.
[Repealed]
Prescribing requirements in respect of the books, records and other documents required by subsection 19 (1) to be kept by market participants, including the form in which and the period for which the books, records and other documents are to be kept.
10.1 Prescribing a class of instruments, certificates, agreements, documents or other things that are not securities for the purposes of the Act.
Regulating the listing or trading of publicly traded securities or the trading of derivatives, including rules,
relating to clearing and settling trades,
requiring the reporting of trades and quotations, and
prescribing classes of derivatives in respect of which trades must be cleared or settled through a clearing agency.
Regulating recognized exchanges, recognized self-regulatory organizations, recognized quotation and trade reporting systems, alternative trading systems, recognized clearing agencies, designated trade repositories or designated information processors, including,
prescribing requirements in respect of the review or approval by the Commission of any by-law, rule, regulation, policy, procedure, interpretation or practice,
prescribing restrictions on the ownership, control and direction of a recognized exchange, clearing agency or alternative trading system.
Regulating trading in or advising about securities or derivatives to prevent trading or advising that is fraudulent, manipulative, deceptive or unfairly detrimental to investors.
Regulating trading or advising in penny stocks, including prescribing requirements in respect of additional disclosure and suitability for investment.
Prescribing categories or subcategories of issuers for purposes of the prospectus requirements under this Act, the regulations and the rules and classifying issuers into categories or subcategories.
15.1 Prescribing circumstances in which a receipt for a preliminary prospectus or a prospectus is deemed to be issued by the Director under subsection 53 (3).
Regulating in respect of, or varying this Act to facilitate, expedite or regulate in respect of, the distribution of securities, or the issuing of receipts, including by establishing,
requirements in respect of distributions of securities by means of a prospectus incorporating other documents by reference,
requirements in respect of distributions of securities by means of a simplified or summary prospectus or other form of disclosure document,
requirements in respect of distributions of securities on a continuous or delayed basis,
requirements in respect of pricing of distributions of securities after the issuance of a receipt for the prospectus filed in relation thereto,
procedures for the issuing of receipts for prospectuses after expedited or selective review thereof,
provisions for the incorporation by reference of certain documents in a prospectus and the effect, including from a liability and evidentiary perspective, of modifying or superseding statements,
requirements for the form of a prospectus certificate, including providing for alternative forms in circumstances other than those referred to in subsection 63 (2) of this Act,
provisions for eligibility requirements to obtain a receipt for, or distribute under, a particular form of prospectus and the loss of that eligibility, and
provisions for varying withdrawal rights.
16.1 Prescribing requirements for the certification of prospectuses by persons and companies in relation to the following:
if the issuer is a trust, requiring individuals who perform functions for the issuer similar to those performed by a chief executive officer or chief financial officer of an issuer to certify the prospectus,
if the issuer is a trust and its business or a material part of its business is conducted through a person or company other than the issuer, requiring a director and the chief executive officer and the chief financial officer of the person or company, or individuals who perform functions for the person or company similar to those performed by a chief executive officer or chief financial officer, to certify the prospectus,
if the issuer is a limited partnership, requiring the general partner of the issuer and individuals who perform functions for the issuer similar to those performed by a chief executive officer or a chief financial officer of an issuer to certify the prospectus, and
if the issuer is not organized as a company, trust or limited partnership, requiring persons or companies that perform functions similar to those performed by persons or companies described in subparagraph i, ii or iii or section 58 to certify the prospectus.
Prescribing requirements for the escrow of securities in connection with distributions.
Designating activities, including the use of documents or advertising, in which registrants or issuers are permitted to engage or are prohibited from engaging in connection with distributions.
Prescribing which distributions and trading in relation to the distributions are distributions and trading outside Ontario.
19.1 Prescribing one or more classes of contracts or instruments that are not derivatives for the purpose of prescribed provisions of Ontario securities law and prescribing those provisions.
19.2 Prescribing one or more classes of derivatives that are designated derivatives for the purposes of prescribed provisions of Ontario securities law and prescribing those provisions.
19.3 Prescribing registration requirements in respect of persons or companies trading in derivatives.
19.4 Prescribing derivatives or classes of derivatives that are deemed to be securities for the purposes of prescribed provisions of this Act, the regulations and the rules and prescribing those provisions.
19.5 Prescribing circumstances in which a material interest in a derivative’s underlying interest is not a financial or other interest for the purposes of section 34.
19.6 Prescribing one or more classes of derivatives for the purpose of clause 38 (4) (b).
19.7 Prescribing one or more conditions for the purposes of subclause 64.1 (5) (b) (ii).
Prescribing any matter referred to in Part XVII (Exemptions from Prospectus Requirements) as required by the regulations or prescribed by or in the regulations, other than the matters referred to in subsection 73.1 (3).
Prescribing the circumstances in which the Director must refuse to issue a receipt for a prospectus and prohibiting the Director from issuing a receipt in those circumstances.
Prescribing requirements in respect of the preparation and dissemination and other use, by reporting issuers, of documents providing for continuous disclosure that are in addition to the requirements under this Act, including requirements in respect of,
an annual report,
an annual information form, and
supplemental analysis of financial statements.
22.1 Respecting the preparation, form and content requirements applicable to the public dissemination of forward-looking information by reporting issuers where the dissemination is not part of a required filing.
Exempting reporting issuers from any requirement of Part XVIII (Continuous Disclosure),
if the requirement conflicts with a requirement of the laws of the jurisdiction under which the reporting issuers are incorporated, organized or continued,
if the reporting issuers ordinarily distribute financial information to holders of their securities in a form, or at times, different from those required by Part XVIII, or
under circumstances that the Commission considers justify the exemption.
Requiring issuers or other persons and companies to comply, in whole or in part, with Part XVIII (Continuous Disclosure), or rules made under paragraph 22.
Prescribing requirements in respect of financial accounting, reporting and auditing for purposes of this Act, the regulations and the rules, including,
defining accounting principles and auditing standards acceptable to the Commission,
financial reporting requirements for the preparation and dissemination of future-oriented financial information and pro forma financial statements,
standards of independence and other qualifications for auditors,
requirements respecting a change in auditors by a reporting issuer or a registrant,
requirements respecting a change in the financial year of an issuer or in an issuer’s status as a reporting issuer under this Act, and
defining auditing standards for attesting to and reporting on a reporting issuer’s internal controls.
Prescribing requirements for the validity and solicitation of proxies, prescribing activities for the purposes of clause (g) of the definition of “solicit” and “solicitation” in section 84 and prescribing circumstances for the purposes of clause 86 (2) (a.1).
26.1 Prescribing, for meetings of the security holders of a reporting issuer,
requirements for voting by proxy or otherwise,
circumstances in which a vote of security holders must be done by way of ballot,
requirements relating to communication with registered, legal and beneficial owners of securities, including requirements relating to depositories, registrants or other persons that hold securities on behalf of beneficial owners, and
requirements relating to entities involved in, or activities and practices relating to, the solicitation, collection, submission, tabulation and validation of proxy votes and voting instructions.
Providing for the application of Part XVIII (Continuous Disclosure) and Part XIX (Proxies and Proxy Solicitation) in respect of registered holders or beneficial owners of voting securities or equity securities of reporting issuers or other persons or companies on behalf of whom the securities are held, including requirements for reporting issuers, recognized clearing agencies, registered holders, registrants and other persons or companies who hold securities on behalf of persons or companies but who are not the registered holders.
Regulating take-over bids, issuer bids, insider bids, going-private transactions, business combinations and related party transactions, including,
providing for the matters that, under Part XX, may be specified by regulation or required by the regulations or that, under Part XX, must or may be determined or done in accordance with the regulations,
establishing different classes of take-over bids and issuer bids and prescribing requirements in respect of each such class,
restricting the ability of a person or company to acquire or sell a security before, during or after an offer to acquire, acquisition, redemption, related party transaction, business combination or similar transaction,
prescribing the disclosure, certification, delivery or dissemination of any circular, notice, report or other document required to be filed or delivered to a person or company,
prescribing requirements relating to the conduct or management of the affairs of an issuer, and its directors and officers, before, during or after an offer to acquire, acquisition, redemption, related party transaction, business combination or similar transaction,
prescribing requirements, prohibitions, restrictions and thresholds in respect of early warning,
prescribing requirements respecting defensive tactics in connection with take-over bids,
prescribing requirements to be met by a person or company that acquires an interest or right in or to, or a right or obligation associated with, a related financial instrument,
varying any or all of the time periods in the regulations related to Part XX,
prescribing exemptions from the requirements of Part XX or the regulations related to it, and
removing or varying exemptions from the requirements of Part XX or the regulations related to it.
Prescribing time periods under section 107 of the Act or varying or providing for exemptions from any requirement of Part XXI (Insider Trading and Self-Dealing).
30.1 Regulating the disclosure or furnishing of information to the public or the Commission by insiders, including,
prescribing filing requirements for the reporting by insiders of their respective direct or indirect beneficial ownership of, or control or direction over, securities of a reporting issuer or changes in ownership, control or direction,
prescribing requirements respecting the reporting by insiders of any interest in or right or obligation associated with a related financial instrument or changes in such interests, rights or obligations,
prescribing requirements respecting the reporting by insiders of any agreement, arrangement or understanding that alters, directly or indirectly, an insider’s economic interest in a security or an insider’s economic exposure to a reporting issuer or changes in such agreements, arrangements or understandings.
30.2 Prescribing requirements in respect of a reporting issuer to facilitate compliance by insiders of the reporting issuer with this Act and with the rules made under paragraph 30.1.
30.3 Requiring that reports under paragraph 30.1 shall also provide information for the period of up to six months before a person or company became an insider.
Regulating investment funds and the distribution and trading of the securities of investment funds, including,
varying Part XV or Part XVIII by prescribing additional disclosure requirements in respect of investment funds and requiring or permitting the use of particular forms or types of additional offering or other documents in connection with the funds,
prescribing permitted investment policy and investment practices for investment funds and prohibiting or restricting certain investments or investment practices for investment funds,
ii.1 prescribing requirements for investment funds in respect of derivatives,
prescribing requirements governing the custodianship of assets of investment funds,
prescribing minimum initial capital requirements for investment funds making a distribution and prohibiting or restricting the reimbursement of costs in connection with the organization of a fund,
prescribing matters affecting investment funds that require the approval of security holders of the fund, the Commission or the Director, including, in the case of security holders, the level of approval,
prescribing requirements in respect of the calculation of the net asset value of investment funds,
prescribing requirements in respect of the content and use of sales literature, sales communications or advertising relating to investment funds or the securities of investment funds,
designating mutual funds as private mutual funds and prescribing requirements for private mutual funds,
respecting sales charges imposed by a distribution company or contractual plan service company under a contractual plan on purchasers of shares or units of an investment fund, and commissions or sales incentives to be paid to registrants in connection with the securities of an investment fund,
prescribing the circumstances in which a plan holder under a contractual plan has the right to withdraw from the contractual plan,
prescribing procedures applicable to investment funds, registrants and any other person or company in respect of sales and redemptions of investment fund securities and payments for sales and redemptions,
prescribing requirements in respect of, or in relation to, promoters, advisers or persons and companies who administer or participate in the administration of the affairs of investment funds.
Respecting fees payable by an issuer to an adviser as consideration for investment advice, alone or together with administrative or management services provided to a mutual fund or non-redeemable investment fund.
Prescribing requirements relating to the qualification of a registrant to act as an adviser to an investment fund.
Regulating commodity pools, including,
varying Part XV (Prospectuses — Distribution) or XVIII (Continuous Disclosure) to prescribe additional disclosure requirements in respect of commodity pools and requiring or permitting the use of particular forms or types of additional offering or other documents in connection with commodity pools,
prescribing requirements in respect of, or in relation to, promoters, advisers, persons and companies who administer or participate in the administration of the affairs of commodity pools,
prescribing standards in relation to the suitability of investors in commodity pools,
prohibiting or restricting the payment of fees, commissions or compensation by commodity pools or holders of securities of commodity pools and restricting the reimbursement of costs in connection with the organization of commodity pools,
prescribing requirements with respect to the voting rights of security holders, and
prescribing requirements in respect of the redemption of securities of a commodity pool.
Prescribing requirements relating to derivatives, including,
requirements for disclosure documents relating to designated derivatives,
record keeping and reporting requirements,
requirements in respect of persons or companies trading in derivatives, including requirements in respect of margin, collateral, capital, clearing and settlement,
requirements that one or more classes of derivatives be traded on a recognized exchange or an alternative trading system,
requirements relating to position limits for derivatives transactions,
requirements that one or more classes of derivatives not be traded in Ontario,
transparency requirements relating to the public dissemination of, or public access to, transaction level data,
transparency requirements other than those referred to in subparagraph vii.
Varying this Act with respect to foreign issuers to facilitate distributions, compliance with requirements applicable or relating to reporting issuers and the making of take-over bids, issuer bids, insider bids, going-private transactions, business combinations and related party transactions where the foreign issuers are subject to requirements of the laws of other jurisdictions that the Commission considers are adequate in light of the purposes and principles of this Act.
Regulating labour sponsored investment fund corporations registered under Part III (Labour Sponsored Investment Fund Corporations) of the Community Small Business Investment Funds Act, 1992, and the distribution and trading of the securities of the corporations and varying this Act in respect of the corporations and,
prescribing proficiency requirements that apply in respect of registrants trading in securities of the corporations,
requiring or prohibiting the use of particular forms or types of offering documents for or in respect of the securities of the corporations,
prescribing disclosure requirements for or in respect of the securities of the corporations,
exempting the corporations from specified requirements or restrictions that ordinarily apply to or in respect of mutual funds, and
prescribing insider reporting requirements for or in respect of the corporations.
Prescribing requirements in respect of reverse take-overs including requirements for disclosure that are substantially equivalent to that provided by a prospectus.
Requiring or respecting the media, format, preparation, form, content, execution, certification, dissemination and other use, filing and review of all documents required under or governed by this Act, the regulations or the rules, all applications to the Commission under the Business Corporations Act and all documents determined by the regulations or the rules to be ancillary to the documents, including,
applications for registration and other purposes,
preliminary prospectuses and prospectuses,
interim financial reports and financial statements,
proxies and information circulars, and
take-over bid circulars, issuer bid circulars and directors’ circulars.
39.1 Governing the approval of any document described in paragraph 39.
Respecting the designation or recognition of any person, company or jurisdiction if advisable for purposes of this Act, including,
recognizing exchanges, self-regulatory organizations and clearing agencies,
designating, for purposes of subsection 88 (1), the jurisdictions whose requirements are substantially similar to the requirements of Part XIX,
designating a person or company for the purpose of the definition of “market participant”,
designating classes of persons or companies not to be insiders for the purpose of the definition of “insider”,
designating classes of persons or companies for the purpose of clause (f) of the definition of “insider” in subsection 1 (1), if the persons or companies would reasonably be expected to have, in the ordinary course, access to material information about the business, operations, assets or revenue of the issuer, to be insiders, and
designating trade repositories and information processors.
Respecting the conduct of the Commission and its employees in relation to duties and responsibilities and discretionary powers under this Act, including,
the conduct of investigations and examinations carried out under Part VI (Investigations and Examinations), and
the conduct of hearings.
Establishing conditions for any exemption that the Commission is authorized to give by subsection 46 (4) or 190 (6) or section 113 of the Business Corporations Act and, despite those provisions, dispensing with applications for exemption when the conditions are met.
Prescribing the fees payable to the Commission, including those for filing, for applications for registration or exemptions, for trades in securities, in respect of audits made by the Commission, and in connection with the administration of Ontario securities law.
Varying this Act to permit or require the use of an electronic or computer-based system for the filing, delivery or deposit of,
documents or information required under or governed by this Act, the regulations or rules, and
documents determined by the regulations or rules to be ancillary to documents required under or governed by this Act, the regulations or rules.
Establishing requirements for and procedures in respect of the use of an electronic or computer-based system for the filing, delivery or deposit of documents or information.
Providing for electronic signatures for the signing of documents and prescribing the circumstances in which persons or companies shall be deemed to have signed or certified documents on an electronic or computer-based system for any purpose of this Act, the regulations or the rules.
Regulating scholarship plans and the distribution and trading of the securities of scholarship plans.
Specifying the conditions under which any particular type of trade that would not otherwise be a distribution shall be a distribution.
Permitting or requiring, or varying this Act to permit or require, methods of filing, delivery, distribution or making available, to or by the Commission, issuers, registrants, security holders or others, of documents, information, notices, books, records, things, reports, orders, authorizations or other communications required under or governed by Ontario securities law.
Providing for exemptions from or varying the requirements set out in Part XIII.
[Repealed]
Providing for exemptions from or varying the requirements under this Act in respect of amendments to prospectuses or preliminary prospectuses, or prescribing circumstances under which an amendment to a preliminary prospectus or prospectus must be filed.
52.1 Permitting a distribution or additional distribution under subsection 57 (2.2) to proceed without a receipt for an amendment.
Prescribing the disclosure document that is required in respect of the purchase and sale of an investment fund security for the purpose of subsection 71 (1.1), requiring dealers to provide the disclosure document to purchasers and prescribing the time and manner for sending or delivering the disclosure document.
54.1 Prescribing investment fund securities trading on an exchange or an alternative trading system for the purpose of subsection 71 (1.2), prescribing the disclosure document that is required in respect of prescribed investment fund securities under subsection 71 (1.3), prescribing the time and manner for sending or delivering the disclosure document, and prescribing the circumstances in which a purchase is not binding on a purchaser for the purpose of subsection 71 (2.1).
54.2 Respecting the administration and distribution of disgorged amounts under section 128.1.
54.3 Respecting the use of money described in subclause 19 (2) (b) (iii) or clause 19 (2) (c) of the Securities Commission Act, 2021 to pay administrative costs in relation to the distribution of disgorged amounts under section 128.1 of this Act.
Specifying exemptions and circumstances that shall be subject to section 130.1.
55.1 Prescribing documents for the purposes of the definition of “core document” in subsection 138.1 (1).
55.2 Providing for the application of Part XXIII.1 to the acquisition of an issuer’s security pursuant to a distribution that is exempt from section 53 or 62 and to the acquisition or disposition of an issuer’s security in connection with or pursuant to a take-over bid or issuer bid.
55.2.1 Prescribing transactions or classes of transactions for the purposes of clause 138.2 (d).
55.3 Prescribing the meaning of “market capitalization”, “trading price” and “principal market” and such other terms as are used in Part XXIII.1 and are not otherwise defined in this Act.
Prescribing, providing for exemptions from or varying any or all of the time periods in this Act or the regulations.
56.1 Prescribing requirements with respect to the governance of reporting issuers for the purposes of section 121.3.
Requiring reporting issuers to appoint audit committees and prescribing requirements relating to the functioning and responsibilities of audit committees, including requirements in respect of,
the standard of review to be applied by audit committees in their review of documents filed under Ontario securities law,
the certification or other evidence of review by audit committees,
the scope and content of an audit committee’s review, and
the composition of audit committees and the qualifications of audit committee members, including independence requirements.
Requiring reporting issuers to devise and maintain a system of internal controls related to the effectiveness and efficiency of their operations, including financial reporting and asset control, sufficient to provide reasonable assurances that,
transactions are executed in accordance with management’s general or specific authorization,
transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles or any other criteria applicable to those statements,
transactions are recorded as necessary to maintain accountability for assets,
access to assets is permitted only in accordance with management’s general or specific authorization, and
the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Requiring reporting issuers to devise and maintain disclosure controls and procedures sufficient to provide reasonable assurances that,
information required to be disclosed under Ontario securities law is recorded, processed, summarized and reported, within the time periods specified under Ontario securities law, and
information required to be disclosed under Ontario securities law is accumulated and communicated to the reporting issuer’s management, including its chief executive and financial officers, as appropriate, to allow timely decisions regarding required disclosure.
Requiring chief executive officers and chief financial officers of reporting issuers, or persons performing similar functions, to provide a certification that addresses the reporting issuer’s internal controls, including a certification that addresses,
the establishment and maintenance of the internal controls,
the design of the internal controls, and
the evaluation of the effectiveness of the internal controls.
Requiring chief executive officers and chief financial officers of reporting issuers, or persons performing similar functions, to provide a certification that addresses the reporting issuer’s disclosure controls and procedures, including a certification that addresses,
the establishment and maintenance of the disclosure controls and procedures,
the design of the disclosure controls and procedures, and
the evaluation of the effectiveness of the disclosure controls and procedures.
Requiring investment funds to establish and maintain a body for the purposes described in subsection 121.4 (1), prescribing its powers and duties and prescribing requirements relating to,
the mandate and functioning of the body,
the composition of the body and qualifications for membership on the body, including matters respecting the independence of members, and the process for selecting the members,
the standard of care that applies to members of the body when exercising their powers, performing their duties and carrying out their responsibilities,
the disclosure of information to security holders of the investment fund, to the investment fund manager and to the Commission, and
matters affecting the investment fund that require review by the body or the approval of the body.
Prescribing requirements in respect of credit rating organizations, including requirements relating to,
the disclosure or furnishing of information to the Commission by a credit rating organization,
the establishment, publication and enforcement of a code of conduct applicable to directors, officers and employees of credit rating organizations, including minimum requirements to be included in the code,
prohibitions against and procedures regarding conflicts of interest between a credit rating organization and the person or company whose securities it is rating,
the maintenance of books and records necessary for the conduct of a credit rating organization’s business and the issuance and maintenance of credit ratings,
the appointment by credit rating organizations of one or more compliance officers and any minimum standards that must be met or qualifications a compliance officer must have.
Prescribing a category or categories of designated benchmarks for the purposes of subsection 24.1 (7).
Prescribing classes of service providers or security holders for the purposes of subsection 24.3 (3).
Prescribing requirements relating to,
the designation of a benchmark or benchmark administrator under section 24.1,
the making of orders under section 24.2,
the disclosure or furnishing of information to the Commission, the public or any person or company by a benchmark administrator, a benchmark contributor or a benchmark user, including requirements for disclosure statements by a benchmark administrator in relation to a benchmark,
the quality, integrity and sufficiency of the data and the methodology used by a benchmark administrator to determine a benchmark, including requirements for a benchmark administrator to monitor benchmark contributors and data provided by benchmark contributors,
the establishment, publication and enforcement by a benchmark administrator of codes of conduct applicable to benchmark administrators or benchmark contributors and their respective directors, officers and employees, and any of their service providers or security holders that are in a class prescribed under paragraph 65, and the minimum requirements to be included in such a code of conduct,
contractual arrangements related to a benchmark to be entered into by a benchmark administrator or a benchmark contributor and the minimum requirements to be included in the contractual arrangements,
the use by a benchmark administrator and a benchmark contributor of service providers,
prohibitions against and procedures regarding conflicts of interest involving a benchmark and benchmark administrators, benchmark contributors and their respective directors, officers and employees, and any of their service providers or security holders that are in a class prescribed under paragraph 65, including,
procedures to be followed to avoid conflicts of interest,
procedures to be followed if conflicts of interest arise,
requirements for separation of roles, functions and activities, and
restrictions on ownership of a benchmark or benchmark administrator,
prohibitions against the use of a benchmark that is not a designated benchmark by a benchmark user,
disclosure and other requirements respecting the use of a benchmark by a benchmark administrator, benchmark contributor or benchmark user,
requiring information in relation to a benchmark to be provided for use by the benchmark administrator,
the maintenance of books and records necessary for the conduct of a benchmark administrator’s business and the establishment and maintenance of a benchmark,
the maintenance of books and records by a benchmark contributor relating to a benchmark,
the appointment by benchmark administrators and benchmark contributors of one or more compliance officers and any minimum standards that must be met or qualifications a compliance officer must have,
the prohibition or restriction of any matter or conduct involving a benchmark by benchmark administrators, benchmark contributors and their respective directors, officers and employees, and any of their service providers or security holders that are in a class prescribed under paragraph 65,
the design, determination and dissemination of a benchmark,
plans of a benchmark user where a benchmark changes or ceases to be provided and how these plans will be reflected in the contractual arrangements of the benchmark user,
the governance, compliance, accountability, oversight, audit, internal controls, policies and procedures of a benchmark administrator or benchmark contributor in respect of a benchmark,
the governance, compliance, accountability, oversight, audit, internal controls, policies and procedures of a benchmark administrator, benchmark contributor or benchmark user in respect of the use of a benchmark.
Regulating submissions of information for the purposes of determining a benchmark.
Requiring benchmark administrators or benchmark contributors to,
establish plans in the event that a benchmark changes or ceases to be provided or is subject to data failures or business continuity issues, and
reflect the plans referred to in subparagraph i in the contractual arrangements of the benchmark administrator or benchmark contributor relating to the benchmark.
Governing or restricting the payment of fees or other compensation to a benchmark administrator or benchmark contributor.
Prescribing persons and bodies for the purposes of the definition of “securities regulatory authority of another province or territory in Canada” in subsection 127 (10). ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ; ;
The Commission shall not make rules respecting matters relating to the Tribunal’s adjudicative functions.
The regulations may authorize or require that a document that is to be delivered, forwarded, distributed or sent to a person or company under Part XV or XVI or under section 79 be made available to the person or company in another way instead. ;
A document that is made available in accordance with subsection (1.2) is deemed to have been received on the day and at the time, if any, determined under the regulations. ;
The Lieutenant Governor in Council may make regulations in respect of,
(0.a) any matter referred to in this Act as being prescribed by or determined in accordance with regulations made by the Lieutenant Governor in Council;
any matter in respect of which the Commission may make rules, with necessary modifications;
[Repealed]
any matter advisable for carrying out the purposes of this Act. ; ; ; ; ;
Subject to the approval of the Minister, the Commission, concurrently with making a rule, may make a regulation that amends or revokes any provision of a regulation made by the Lieutenant Governor in Council under this Act or by the Commission under this subsection that in the opinion of the Commission is necessary or advisable to effectively implement the rule.
A regulation made under subsection (3) is not effective before the rule referred to in that subsection comes into force.
A regulation or rule may incorporate by reference, and require compliance with, one or more provisions of an Act or regulation and all or part of any standard, procedure or guideline.
Regulations or rules in respect of registrants, issuers, other persons or companies, securities, trades, or other matters or things, may be made in respect of any class or category of registrants, issuers, other persons or companies, securities, trades or other matters or things.
A regulation or a rule may be general or particular in its application, may be limited as to time or place or both and may exclude any place from the application of the regulation or rule.
Without limiting the authority of the Commission under section 147, a regulation or rule may authorize the Commission or the Director to grant an exemption to it. ;
An exemption or a removal of an exemption,
may be granted or made in whole or in part; and
may be granted or made subject to conditions or restrictions.
Part III (Regulations) of the Legislation Act, 2006 does not apply to the rules. ;
A regulation made under subsection (3) is subject to Part III (Regulations) of the Legislation Act, 2006. ;
If there is a conflict or an inconsistency between a regulation made by the Lieutenant Governor in Council under this Act and a rule, the regulation prevails but in all other respects a rule has the same force and effect as a regulation.
[Repealed]
(1) The Commission shall publish in its Bulletin notice of every rule that it proposes to make under section 143.
The notice must include the following:
The proposed rule.
A statement of the substance and purpose of the proposed rule.
A summary of the proposed rule.
A reference to the authority under which the rule is proposed or a statement that the Commission is seeking legislative amendments to provide the requisite rule-making authority.
A discussion of all alternatives to the proposed rule that were considered by the Commission and the reasons for not proposing the adoption of the alternatives considered.
A reference to any significant unpublished study, report or other written materials on which the Commission relies in proposing the rule.
A qualitative and quantitative analysis of the anticipated costs and benefits of the proposed rule.
A reference to every regulation or provision in a regulation to be amended or revoked under subsection 143 (3). ; ; ;
The Commission does not have to make reference to written material that, in the opinion of the Commission, should be held in confidence because it discloses intimate financial, personal or other information and the desirability of avoiding disclosure of the substance of it or its existence in the interests of any person or company affected outweighs the desirability of making it or knowledge of its existence available to the public.
Upon publication of a notice under subsection (1), the Commission shall invite, and shall give a reasonable opportunity to, interested persons and companies to make written representations with respect to the proposed rule within a period of at least 60 days after the publication. ;
Publication of a notice is not required if,
all persons and companies who would be subject to the proposed rule are named, the information set out in subsection (2) is sent to each of them and they and any other person or company whose interests are likely to be substantially affected by the proposed rule are given an opportunity to make written representations with respect to it;
the proposed rule grants an exemption or removes a restriction and is not likely to have a substantial effect on the interests of persons or companies other than those who benefit under it;
the rule is a rule made under clause 143.11 (3) (b) extending a class order exemption;
what is proposed is only an amendment that does not materially change an existing rule; or
the Commission,
believes that there is an urgent need for the proposed rule and that, without it, there is a substantial risk of material harm to investors or to the integrity of the capital markets, and
has the approval of the Minister to make the rule without publication of notice.
[Repealed]
When a rule to which clause (5) (d) applies comes into force, the Commission shall publish in its Bulletin a statement setting out the substance and purpose of the rule and the nature of the urgency and the risk.
If, following publication of the notice and consideration of the submissions, the Commission proposes material changes to the proposed rule, the Commission shall publish in its Bulletin notice of the proposed changes.
The notice must include the following:
The proposed rule with the changes incorporated.
A concise statement of the purpose of the changes.
The reasons for the changes.
Upon publication of a notice of changes, the Commission shall invite, and shall give a reasonable opportunity to, interested persons and companies to make written representations with respect to the changes within such period as the Commission considers appropriate.
In cases where a notice and comment process is required, the Commission may make the rule only at the end of the notice and comment process and after considering all representations made as a result of that process.
Section 140 applies to all written representations made under this section as if they were material required to be filed.
In this section and in section 143.3,
“rule” includes an amendment to and a revocation of a rule.
(1) The Commission must deliver to the Minister a copy of every rule made by it together with the following:
A copy of the notices published under section 143.2, unless publication of notice was not required, and copies of all documents referred to in the notices.
A summary of the representations made and other documents submitted in respect of the rule as proposed.
All other material information that was considered by the Commission in connection with the making of the rule.
The Commission shall publish in its Bulletin every rule made by it as soon after the rule is made as practicable together with the following:
The date on which a rule and the material required under subsection (1) were delivered to the Minister.
The date the rule is to come into force if an action is not taken by the Minister under subsection (3).
A statement of the substance and purpose of the rule.
A summary of the written comments received during the comment periods if notice and comment were required.
A statement of the Commission setting out its response to the significant issues and concerns brought to the attention of the Commission during the comment periods.
Within 60 days after a rule is delivered to the Minister, the Minister may,
approve the rule;
reject the rule; or
return it to the Commission for further consideration.
(1) A rule that is approved by the Minister comes into force 15 days after it is approved unless there is a later day specified in the rule in which case it comes into force on that later day.
If the Minister does not approve a rule, reject it or return it to the Commission for further consideration and a coming into force day,
that is at least 75 days after the rule is delivered to the Minister is specified in the rule, the rule comes into force on the specified day;
is not specified in the rule, the rule comes into force on the 75th day after the rule is delivered to the Minister; or
that is within 75 days after the rule is delivered to the Minister is specified in the rule, the rule comes into force on the 75th day after the rule is delivered to the Minister.
A rule that is returned to the Commission for further consideration cannot come into force until it is returned by the Commission to the Minister at which time this section applies as if the rule were delivered for the first time.
A rule that is rejected by the Minister does not come into force.
A rule to which clause 143.2 (5) (d) (urgency provision) applies that is approved by the Minister comes into force on the day it is published in the Commission’s Bulletin.
Every rule to which clause 143.2 (5) (d) applies is revoked on the 275th day after it comes into force.
The Commission shall publish every rule that comes into force in The Ontario Gazette and in its Bulletin.
Every person or company affected by a rule shall be deemed to have notice of it when it is published in the Commission’s Bulletin.
(1) If the Minister returns a rule to the Commission for further consideration, the Minister may specify what is to be considered, the conditions that apply and the process to be followed.
Subject to any instruction that the Commission receives under subsection (1), the Commission shall consider any rule returned to it in the manner and following the process that it feels is appropriate.
The Commission shall publish in its Bulletin notice of,
any action taken by the Minister under subsection 143.3 (3) in respect of every rule that the Commission has delivered to the Minister; and
any matters specified by the Minister under subsection 143.5 (1) to be considered.
(1) The Minister may in writing require the Commission,
to study and make recommendations in respect of any matter of a general nature under or affecting this Act, the regulations or the rules; and
to consider making a rule in respect of a matter specified by the Minister.
The Commission shall publish in its Bulletin notice of every requirement from the Minister made under subsection (1).
The notice must include the following:
A statement of the substance of the requirement.
A reference to every unpublished study, report or other written materials provided to the Commission by the Minister other than materials that the Minister has asked the Commission to treat as confidential.
(1) In this Act,
“policy” means a written statement of the Commission of,
principles, standards, criteria or factors that relate to a decision or exercise of a discretion by the Commission or the Director under this Act, the regulations or the rules,
the manner in which a provision of this Act, the regulations or the rules is interpreted or applied by the Commission or the Director,
the practices generally followed by the Commission or the Director in the performance of duties and responsibilities under this Act, and
something that is not of a legislative nature.
The Commission shall publish in its Bulletin notice of the proposed adoption of a policy.
The notice must include the following:
The proposed policy.
A statement of the purpose of the proposed policy.
A summary of the proposed policy.
A reference to any significant unpublished study, report, decision or other written materials on which the Commission relies in proposing the policy.
A reference to any provision of this Act, a regulation or a rule to which the proposed policy relates.
The Commission does not have to make reference to written material that, in the opinion of the Commission, should be held in confidence because it discloses intimate financial, personal or other information and the desirability of avoiding disclosure of the substance of it or its existence in the interests of any person or company affected outweighs the desirability of making it or knowledge of its existence available to the public.
Upon publication of the notice, the Commission shall invite, and shall give a reasonable opportunity to, interested persons and companies to make written representations with respect to the proposed policy within a period of at least 60 days after the publication.
Publication of a notice is not required if the proposed policy would make no material substantive change to an existing policy.
If, following publication of the notice, the Commission proposes material changes to the proposed policy, the Commission shall publish in its Bulletin,
the proposed policy with the changes incorporated;
a concise statement of the purpose for the changes; and
the reasons for the changes.
Upon publication of a notice of change, the Commission shall invite, and shall give a reasonable opportunity to, interested persons and companies to make written representations with respect to the change within such period as the Commission considers appropriate.
The Commission shall publish in its Bulletin every policy adopted by it as soon after the policy is adopted as practicable together with the following:
The date the policy comes into effect.
A statement of the substance and purpose of the policy.
A summary of the written comments received during the comment periods.
A statement of the Commission setting out its response to the significant issues and concerns brought to the attention of the Commission during the comment periods and the reasons for any changes made to the proposed policy following its publication.
Section 140 applies to all written representations made under this section as if they were material required to be filed.
The Commission shall not adopt a policy that, by reason of its prohibitive or mandatory character, is of a legislative nature.
In this section,
“policy” includes a change to and a rescission of a policy.
[Repealed]
[Repealed]
(1) The Commission shall not make any orders or rulings of general application.
Despite subsection (1), if the Commission considers that it would not be prejudicial to the public interest to do so, the Commission may, on application by an interested person or company or on its own initiative, make an order exempting a class of persons or companies, trades, intended trades, securities or derivatives from any requirement of Ontario securities law on such terms or conditions as may be set out in the order.
If an order is made under subsection (2),
the order has no effect as of 18 months after the day on which it comes into force unless extended under clause (b); and
On or before the day on which an order described in subsection (2) is effective, the Commission shall publish a notice in its Bulletin that includes a description of the order, the reasons for it and the day on which it ceases to have effect.
Part III (Regulations) of the Legislation Act, 2006 does not apply to an order made under subsection (2).
[Repealed]
[Repealed]
The Commission shall be deemed to have complied with a requirement under Ontario securities law to publish or otherwise make available a notice, rule or other information if the Commission provides the notice, rule or information in electronic form through an electronic medium or posts it on its website.
(1) The Commission may make an order revoking or varying a decision of the Commission, on the application of the Chief Executive Officer of the Commission or a person or company affected by the decision, if in the Commission’s opinion the order would not be prejudicial to the public interest. ;
The order may be made on such terms and conditions as the Commission may impose.
(1) The Tribunal may make an order revoking or varying a decision of the Tribunal, on the application of the Chief Executive Officer of the Commission or a person or company affected by the decision, if in the Tribunal’s opinion the order would not be prejudicial to the public interest.
The order may be made on such terms and conditions as the Tribunal may impose.
Every registration made and receipt for a prospectus issued under The Securities Act, being chapter 426 of the Revised Statutes of Ontario, 1970 and in effect immediately before the 15th day of September, 1979, continues in the same manner as if made or issued under this Act.
(1) Despite subsection 33 (4) of the Evidence Act, the Commission may by order compel a bank or officer of a bank, in an investigation, financial examination or hearing under Ontario securities law to which the bank is not a party, to produce any book or record the contents of which can be proved under section 33 of the Evidence Act or to appear as a witness to prove the matters, transactions and accounts contained in the book or record.
In subsection (1),
“bank” and “officer of a bank” have the same meanings as in subsection 33 (4) of the Evidence Act.
Except where exemption applications are otherwise provided for in Ontario securities law, the Commission may, on the application of an interested person or company and if in the Commission’s opinion it would not be prejudicial to the public interest, make an order on such terms and conditions as it may impose exempting the person or company from any requirement of Ontario securities law.
[Repealed]
Nothing shall preclude a court from ordering costs payable to the Commission and in the event that costs are awarded to the Commission, a counsel fee may be awarded despite the fact that the Commission was represented by Commission staff.
Nothing in this Act shall be construed as limiting the Commission’s or the Tribunal’s ability to make a decision under more than one provision of Ontario securities law in respect of the same conduct or matter. ;
(1) On filing with the Superior Court of Justice, a decision made by the Commission, by the Tribunal, by the Chief Executive Officer of the Commission or by another Director in accordance with a delegation under subsection 3 (1), or by the Canadian Investment Regulatory Organization after it conducts a hearing shall be deemed to be an order of the Superior Court of Justice and is enforceable as an order of that court. ; ; ; ;
A decision of a Director may not be filed with the court under subsection (1) until the time permitted for an application to review the Director’s decision pursuant to subsection 8 (2) has expired or, if the decision has been appealed, the Tribunal has confirmed it. ;
A decision made by the Canadian Investment Regulatory Organization may not be filed with the court under subsection (1) until the time for an application to review the decision pursuant to subsection 8 (2) has expired. ;
(1) The Commission may apply to the Superior Court of Justice for an order,
appointing a person to take the evidence of a witness outside of Ontario for use in a proceeding before the Tribunal; and
providing for the issuance of a letter of request directed to the judicial authorities of the jurisdiction in which the witness is to be found, requesting the issuance of such process as is necessary to compel the person to attend before the person appointed under clause (a) to give testimony on oath or otherwise and to produce documents and things relevant to the subject matter of the proceeding. ; ;
The practice and procedure in connection with an appointment under this section, the taking of evidence and the certifying and return of the appointment shall, as far as possible, be the same as those that govern similar matters in civil proceedings in the Superior Court of Justice. ;
The making of an order under subsection (1) does not determine whether evidence obtained pursuant to the order is admissible in the proceeding before the Tribunal. ;
If it is made to appear to the Superior Court of Justice that a court or tribunal of competent jurisdiction outside of Ontario has, on behalf of a securities commission or other body empowered by statute to administer or regulate trading in securities or derivatives, duly authorized, by commission, order or other process, the obtaining of the testimony of a witness outside the jurisdiction of the securities commission or other body and within Ontario for use at a proceeding before the securities commission or other body, the Superior Court of Justice may order the examination of the witness before the person appointed in the manner and form directed by the commission, order or other process, and may, by the same or by subsequent order, command the attendance of the witness for the purpose of being examined, or the production of a writing or other document or thing mentioned in the order, and may give all such directions as to the time and place of the examination and all other matters connected with the examination as seem proper. ; ;
Despite the Freedom of Information and Protection of Privacy Act, the Commission may provide information to and receive information from the following entities, both in Canada and elsewhere, and the information received by the Commission is exempt from disclosure under that Act if the Commission determines that the information should be maintained in confidence:
Other securities, derivatives or financial regulatory authorities.
Exchanges.
2.1 Trade repositories.
2.1.1 Information processors.
2.2 Clearing agencies.
2.3 Alternative trading systems.
Self-regulatory bodies or organizations.
Law enforcement agencies.
Governmental or regulatory authorities not mentioned in paragraphs 1 to 4.
Any person or entity, other than an employee of the Commission, who provides services to the Commission. ; ;
The disclosure of information to the Commission or a trade repository that is made in good faith by a person or company in compliance or attempted compliance with Ontario securities law,
does not constitute a breach of any contractual provision to which the person or company or any other person or company is subject; and
does not constitute any other basis of liability against the person or company or any other person or company.
Schedule/Annexe Repealed: .