Topic: Other developments

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R. v. Marakah: A roadmap towards broader privacy protection in securities enforcement proceedings?

In R. v. Marakah[1], the Supreme Court of Canada (SCC) considered (1) whether Canadians can reasonably expect that text messages they send remain private, even after the messages have reached their destination, and (2) whether the state is free to access text messages from a recipient’s device without a warrant. Facts Marakah was convicted for … Continue reading

OSC orders trading platform systems upgrade

On November 13, 2017, Staff of the Ontario Securities Commission brought an application seeking a temporary order suspending the registration of Omega Securities Inc. (Omega) as well as trading in two alternative trading systems run by Omega called Omega ATS and Lynx ATS, pending the outcome of a hearing on the merits. Staff alleged that … Continue reading

Certainty or Flexibility? Changing the Approach to Director and Audit Committee Member Independence

The Canadian Securities Administrators (the CSA) is seeking comments on its consultation paper: CSA Consultation Paper 52-404 Approach to Director and Audit Committee Member Independence (the Consultation Paper). The Consultation Paper intends to facilitate a discussion on the appropriateness of the CSA’s approach to determining Director and Audit Committee Member Independence.[1] The deadline to submit … Continue reading

SEC takes action in respect of rogue Canadian ICO issuer

On December 1, 2017, the Securities and Exchange Commission (SEC) commenced a civil action in the U.S. District Court against PlexCorps (also known as PlexCoin and Sidepay.ca) and its principals, Dominic Lacroix and Sabrina Paradis-Royer, seeking civil remedies including injunctive relief, an order freezing all of the defendants’ assets and disgorgement.  The SEC alleges that … Continue reading

More Cyber Security Lessons from the Canadian Securities Administrators

Earlier this year, we reported on continuing efforts by the Canadian Securities Administrators (the CSA) to inform the market about cyber security best practices with the publication of Multilateral Staff Notice 51-347 which concerned the disclosure of cyber security, attacks, and risks. The CSA’s efforts continue with CSA Staff Notice 33-321 (the Staff Notice) as … Continue reading

CSA Clarifies Disclosure Requirements for Issuers with U.S.-Based Marijuana Activities

The regulatory environment for U.S.-based marijuana-related operations remains uncertain. At present, marijuana-related activities that are legal under U.S. state law remain illegal under U.S. federal law. Issuers in Canada connected to U.S. marijuana operations remain unsure of their disclosure obligations to Canadian investors and have sought clarification on what constitutes appropriate and timely disclosure. Recently, … Continue reading

Stay of Securities Prosecution For Delay: Application of the Jordan framework to Regulatory Offences Punishable by Imprisonment

In one of the first decisions in Canada applying the Supreme Court of Canada’s new Jordan framework for the measurement of unconstitutional Crown delay to prosecutions for breach of securities law, the Superior Court of Quebec has upheld a stay issued by the provincial Court of Quebec in Autorité des marchés financiers c. Desmarais. The … Continue reading

Mitigating Securities Litigation Risk From Software Problems

Public companies can face significant securities litigation risk over defective algorithms, data errors and software glitches. As securities class action filings continue to increase across the board, plaintiffs lawyers have attacked numerous companies over stock price declines that occur after software problems are revealed. Recent court decisions denying dismissal in securities class actions against Fitbit … Continue reading

Canadian Securities Regulators Announce Prohibition of Binary Options

Securities regulatory authorities for all Canadian jurisdictions, save for British Columbia, (the Participating Authorities) announced the implementation of Multilateral Instrument (the Instrument) and Companion Policy 91-102 on the Prohibition of Binary Options on September 28, 2017. Binary options are defined in the Instrument as a contract or instrument that provides for only a predetermined fixed … Continue reading

No Room for Double Talk: The Ontario Court of Appeal Addresses Restatements, the Reasonable Investigation Defence and the Test for Leave in Rahimi v. SouthGobi Resources Ltd.

The recent decision of the Ontario Court of Appeal in Rahimi v. SouthGobi Resources Ltd., 2017 ONCA 719 provides further guidance concerning the role of the judge on a motion for leave to commence a secondary market class action pursuant to s. 138.8(1) of the Securities Act (the Act) and the application of the defence … Continue reading

Regulatory and civil consequences of Initial Coin Offerings in Ontario

A great deal has been written recently about the possible regulatory uncertainty surrounding Initial Coin Offerings (ICOs) in Canada.  In an ICO, a newly issued cryptocurrency is sold to purchasers, who acquire a right of ownership symbolized by a “coin” or token, which may appreciate in value. Depending upon the characteristics of the ownership interest … Continue reading

Another Nail in the Coffin – Report of C.D. Howe Institute on the Capital Markets Regulatory Authority

For nearly 90 years, many have called for the creation of a single national regulator that would oversee Canada’s capital markets.  Invariably, those attempts have been squelched by constitutional concerns as various provinces and territories have refused to cede jurisdiction to a national regulator.  Nonetheless, in recent years, a newly proposed regulatory body, the Capital … Continue reading

The OSC Explores the Elimination of Embedded Commissions

The Ontario Securities Commission (OSC) hosted a roundtable discussion on September 18, 2017 (the Roundtable Discussion) to help evaluate potential regulatory changes to discontinue embedded commissions in investment funds. The term “embedded commission” refers to the remuneration of dealers and their representatives for mutual fund sales through a commission paid by investment fund managers (for … Continue reading

FCAC and IIROC to join forces

On September 12, 2017, the Financial Consumer Agency of Canada (FCAC) and the Investment Industry Regulatory Organization of Canada (IIROC), two otherwise independent regulators, announced that they signed a memorandum of understanding (MOU) to coordinate regulatory oversight and strengthen consumer/investor protection. We have made inquiries and have learned that the MOU is not publicly available; … Continue reading

The Horror Show Continues: Application of the Limitation Period in s. 138.14 of the Ontario Securities Act in Kaynes v BP, PLC

In Kaynes v. BP, P.L.C. [2017] ONSC 5172, Justice Perell characterizes his decision about the operation of the limitation period set out in s. 138.14 of Part XXIII.1 of the Ontario Securities Act (the Act) as “the latest sequel or prequel in what has turned out to be the case law equivalent of a horror-movie … Continue reading

Third party litigation funding of class actions in Ontario: “A work in progress”

In the most recent Ontario decision on third-party litigation financing, Justice Perell provides further guidance concerning the circumstances in which such funding arrangements will receive court approval. In Houle v. St. Jude Medical Inc., 2017 ONSC 5129, Bentham IMF Capital Inc. (Bentham), an Australian-based litigation financing firm, entered into a financing agreement with Mr. and … Continue reading

Second Circuit overturns precedent regarding scope of tipper/tippee insider trading liability

In the recent divided opinion in United States v. Martoma,1 the Second Circuit overturned its 2014 opinion in United States v. Newman2 regarding the test for tipper and tippee liability in insider trading cases. The majority opinion reasoned that last year’s Supreme Court decision in Salman v. United States3 is inconsistent with Newman’s requirement that, … Continue reading

Canadian Securities Administrators to regulate Cryptocurrency Offerings and Crypto-Investment Funds

2017 has been an extraordinary year for cryptocurrencies.[1] The recent increase in the number of cryptocurrency offerings reflects a dramatic shift in investor-attitudes towards the crypto-economy. However, the increased popularity of initial coin offerings (ICO), initial token offerings (ITO) and cryptocurrency investment funds has triggered a wave of regulatory responses, from the USA to Singapore … Continue reading

Home Capital Group Inc. Settlement with the OSC: Lessons Learned

On August 9, 2017 the Ontario Securities Commission (OSC) approved a settlement agreement entered into by Home Capital Group Inc (HCG), a reporting issuer in the residential and commercial lending business, Gerald Soloway (Soloway), its former founder and CEO, Robert Morton (Morton), its former CFO and  Martin Reid (Reid), its former President. Both Morton and … Continue reading

OSC Approves Its 9th No Contest Settlement

On July 13, 2017, the Ontario Securities Commission (OSC) announced that it had approved yet another “no-contest” settlement resolving unproven allegations by OSC Staff that there were inadequacies in certain mutual fund dealers’ systems of controls and supervision which resulted in clients paying excess fees that were not detected or corrected in a timely manner, … Continue reading

#needsimprovement: CSA releases report on social media disclosure practices by Canadian public companies

The Canadian Securities Administrators (CSA), concerned by the increased prevalence of corporate disclosure through social media, have issued guidance for Canadian public companies. Their notice follows a review of the tweets, blogs, posts and videos of 111 public companies on various social media websites, as well as the companies’ own websites.  The three key areas … Continue reading

Only 61% of issuers address cyber security in their risk factor disclosure. Is your company one of them?

Earlier this year, the Canadian Securities Administrators (CSA) released the results of a review of the disclosure of 240 issuers in the S&P/TSX composite index on cyber security issues.  The review found that only 61% of issuers addressed cyber security in their risk factor disclosure, 20% of these issuers had identified a person or group … Continue reading

OSC: New Commissioner Appointments

On March 3, 2017, the Ontario Securities Commission announced the appointment of two new Commissioners: Robert P. Hutchison and Mark J. Sandler. Mr. Hutchison joins the Commission from Borden Ladner Gervais LLP, where he practised for over 40 years in the business law group.  Mr. Sandler was formerly a senior partner of Cooper, Sandler, Shime … Continue reading
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