Canada: Further Changes Proposed To "Notice-And-Access" For Proxy Solicitation

Copyright 2011, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Securities Regulation, July 2011


  • Notice-and-access system may be used for all meetings
  • Investment funds not permitted to use notice-and-access system
  • Timings specified for delivery to intermediaries, sending paper copies and deposit of legal proxies

The Canadian Securities Administrators (CSA) have republished for a second round of comments proposed changes to the proxy solicitation process. Amendments to National Instrument 54-101 Communication with Beneficial Owners of Securities of a Reporting Issuer (NI 54-101) to introduce a "notice-and-access" system for providing proxy materials to beneficial owners, among other changes, were initially published in April 2010. The initial proposal has been revised and republished for further comments, which indicates that the revisions are considered to be material changes, so the revised proposal warrants a careful review. This bulletin will focus on what we judge to be the significant changes. For a description of the full original proposal, see our April 2010 Blakes Bulletin: Amendments Proposed to Improve Proxy Solicitation for Beneficial Owners.

Reporting issuers other than investment funds can use notice-and-access for all meetings

The original proposal would not have permitted reporting issuers to use notice-and-access for "special meetings" as defined in NI 54-101. Under the revised proposal, it is proposed that notice-and-access be permitted for all meetings. However, investment funds will not be permitted to use notice-and-access.

Must provide advance notice of first use of notice-and-access

The original proposal would have permitted a reporting issuer to use notice-and-access without giving shareholders any prior notification. Under the revised proposal, it is proposed that a reporting issuer must provide advance notice that it intends to do so three to six months before the first meeting. The issuer must issue a news release and post information regarding notice-and-access on a website that is not SEDAR.

Under the revised proposal, it is no longer proposed that reporting issuers must issue a news release disclosing intention to use notice-and-access before every meeting. Instead, the reporting issuer will state its intention to use notice-and-access in the notification of meeting and record dates sent under NI 54-101.

Additional information required in notification of meeting and record dates

Under the revised proposal, the notification of meeting and record dates required under NI 54-101 and the information circular itself would both have to include disclosure regarding the reporting issuer's use of notice‑and-access, whether it is sending proxy-related materials directly to NOBOs, and whether it intends to pay for delivery of proxy-related materials directly to OBOs.

Provide explanatory material regarding notice-and-access in notice package

It is now proposed that issuers must include a plain-language explanation of notice-and-access in the notice package that is sent to shareholders and on the website where the proxy materials are posted.

Cannot include additional material in notice package

It is now proposed that issuers cannot include any additional material regarding the meeting in the notice package, other than an explanation of notice-and-access, unless a copy of the information circular is also included.

Shareholders may provide standing instructions to receive paper copy of information circular with notice package

Under the original proposal, the only specified method by which a shareholder could obtain a paper copy of the information circular was to request the paper copy from the issuer or its agent after the notice package had been sent out. Under the revised proposal, it is proposed that shareholders can provide standing instructions that a paper copy of the information circular be automatically included with the notice package. Obligations on reporting issuers and intermediaries will require compliance with these standing instructions.

Automatic inclusion of paper copies of information circular with notice package if annual financial statements and MD&A are requested

Under the revised proposal, it is proposed that, if an issuer receives from a shareholder annual instructions to send its annual report (annual financial statements and annual MD&A), such instructions will be deemed to also request a paper copy of the information circular if the reporting issuer uses notice-and-access.

The CSA did not also propose at this time the converse, i.e., that standing instructions to receive paper copies of the information circular should also constitute instructions to include the paper annual report as part of the notice package, but the CSA stated that they "would appreciate additional input from stakeholders before proposing such a change."


The CSA created a new defined term "stratification" for including a paper copy of the information circular in the notice package. The original proposal contemplated that a reporting issuer could choose to send just a notice package to some shareholders, and send a full package (which would contain the notice of meeting, voting document and information circular) to others. Under the revised proposal, it is proposed that if a reporting issuer uses notice-and-access, it must send the same basic notice package (containing the required notice, voting document, and the explanation of notice-and-access) to all shareholders. However, the notice package for those shareholders who have provided standing or annual instructions would also include the paper copy of the information circular.

Reporting issuers will be required to disclose whether they are using stratification, and what criteria they are applying to determine which shareholders will receive a paper copy of the information circular.

Exemption for SEC issuers only with a limited Canadian presence

The original proposal would have exempted reporting issuers who are SEC issuers from NI 54-101 if they use the notice-and-access process prescribed by the SEC. It is now proposed that this exemption will be available only to SEC issuers with a limited Canadian presence. "Limited" would mean residents of Canada don't own securities with more than 50% of the votes for the election of directors, a majority of executive officers or directors of the issuer are not residents of Canada, 50% or more of the consolidated assets of the issuer are located outside Canada, and the business of the issuer is not administered principally in Canada.

Specific times to provide materials to intermediaries

The notice package would have to be provided to intermediaries at least three business days before the 30th day before the meeting date (four business days if materials are sent other than by lettermail, courier or the equivalent).

Timing for fulfilling request for paper information circulars

If a request for a paper information circular is received prior to the date of the meeting, the circular must be sent within three business days. If the request is received on or after the date of the meeting, and within one year of the information circular being filed, the circular must be sent within 10 calendar days. No circular needs to be sent if a request is received more than one year after the date of the applicable meeting.

Timing for posting information circular and notice package on SEDAR

It is now proposed that the information circular and the notice package must be filed on SEDAR and posted on a non-SEDAR website on or before the day that the reporting issuer sends the notice package (instead of the same day as sending the notice package).

Deposit of legal proxy prior to proxy cut-off

The requirement for an intermediary (or, if applicable the reporting issuer) to comply with instructions from a beneficial owner to deposit a proxy appointing the beneficial owner as a legal proxy holder would only apply if the instructions from the beneficial owner are received at least one business day before the proxy deposit cut-off date.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
16 Oct 2018, Seminar, Toronto, Canada

Join Blakes lawyers for our 10th annual overview of recent legal and regulatory developments and practical strategies to navigate the changing regulation of Canada’s payments industry.

26 Oct 2018, Other, Vancouver, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

30 Oct 2018, Other, Toronto, Canada

Please join us for discussions on recent updates and legal developments in pension and employee benefits as well as employment law issues.

Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Blake, Cassels & Graydon LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions