Canada: What’s Ahead? At A Glance: Key Developments In Canadian Securities Regulation For The Investment Management Industry - Fall 2011

What's Ahead? At a Glance outlines the key securities regulatory developments that will affect the investment management industry in Canada. The Investment Management Group of Borden Ladner Gervais LLP (BLG) prepares these outlines periodically, reporting on the current status of each initiative, as well as the expected next steps. We intend for these outlines to allow you to keep track of regulatory initiatives, as well as understand what may be coming next. Our more detailed newsletters and commentary are highlighted and you can click on the links provided to access our highlighted newsletters.

If you would like to discuss any of the initiatives listed in this What's Ahead? including what they may mean for your business, please contact your usual lawyer in BLG's Investment Management Group, the authors of this What's Ahead? or any of the leaders noted at the end of this Bulletin.

WHAT'S HAPPENED

 

WHAT'S NEXT?

Canadian Securities Regulatory Authority

Government of Canada Moves to Protect Canadian Investors: Backgrounder, Fact Sheets and Proposed Canadian Securities Act Department of Finance Canada May 2010.

Transition Plan For the Canadian Securities Regulatory Authority Canadian Securities Transition Office July 2010.

Ø

Canadian Securities Transition Office (CSTO) commenced work in July 2009 with a mandate from the Government of Canada to lead and manage the transition from the current system of provincial/territorial regulation to a single, national securities regulator. The goal of the Government of Canada and the Canadian Securities Transition Office is to have the Canadian Securities Regulatory Authority operative by July 1, 2012.

The Government of Canada referred to the Supreme Court of Canada the question of whether the proposed Canadian Securities Act is within the constitutional jurisdiction of parliament. The Supreme Court of Canada heard submissions on this question in April 2011 and has reserved its decision. The S.C.C. decision is expected by first quarter 2012.

See Proposed Federal Securities Act Referred to the Supreme Court of Canada Securities & Capital Markets Alert May 28, 2010 Borden Ladner Gervais LLP.

International Financial Reporting Standards (IFRS) – for Investment Funds

Proposed amendments to National Instrument 81-106 Investment Fund Continuous Disclosure October 2009.

CSA Staff Notice 81-320 (revised) Update on International Financial Reporting Standards for Investment Funds March 2011.

Ø

IFRS amendments to NI 81-106 on hold due to the Canadian Accounting Standards Board decision to defer IFRS for investment funds until January 1, 2013. CSA also waiting until the consultation of the International Accounting Standards Board exposure draft on investment entities is completed. Comments on the IASB's Investment Entities Exposure Draft ED/2011/4 are due by January 5, 2012.

International Financial Reporting Standards (IFRS) – for Registrants

(Final) IFRS amendments to National Instrument 31-103 Registration Requirements and Exemptions and National Instrument 52-107 Acceptable Accounting Principles and Auditing Standards October 2010.

Ø

NI 52-107 and IFRS related amendments to NI 31-103 effective on January 1, 2011. All registrants are required to prepare and deliver to their applicable principal regulator annual audited (and in some cases, interim unaudited) financial statements that have been prepared using IFRS for financial years beginning on or after January 1, 2011. Non-Canadian-based registrants may use other accounting standards in certain cases. Statements must be prepared on a non-consolidated basis.

See Compliance with International Financial Reporting Standards (IFRS) for Canadian Registrants and Investment Funds Investment Management Bulletin November 2010 Borden Ladner Gervais LLP.

Registrant Regulation – General

CSA Staff Notice 31-317 (revised) Reporting Obligations Related to Terrorist Financing July 2010.

(Final) Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations and related instruments ("first-year" amendments) April 2011.

OSC Staff Notice 34-701 Publication of Decisions of the Director on Registration Matters under Part XI of the Securities Act (Ontario) ("Opportunities to be Heard") May 2011.

Proposed Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations and related instruments (re: cost disclosure and performance reporting) June 2011.

CSA Staff Notice 31-326 Outside Business Activities July 2011.

OSC Staff Notice 33-736 Annual Summary Report for Dealers, Advisers and Investment Fund Managers September 2011.

CSA Staff Notice 31-329 Omnibus/Blanket Orders exempting registrants from certain provisions of NI 31-103 September 2011.

CSA Focused Review Questions Relationship Disclosure Practices November 2011.

Ø

Various reports from the CSA and the OSC staff highlight compliance issues significant to registered firms. CSA staff surveying registered PMs and EMDs about compliance with relationship disclosure requirements. Additional guidance can be expected once survey results reviewed by CSA staff.

"First-year" amendments to NI 31-103 and related instruments came into force on July 11, 2011. Note in particular that certain transition periods were extended to later dates; for example, the requirements regarding dispute resolution were extended to September 28, 2012.

See The Continuing Evolution of the Canadian Registration Regime: First-Year Amendments to National Instrument 31-103 Finalized Investment Management Bulletin May 2011 Borden Ladner Gervais LLP.

See National Instrument 31-103 – At a Glance (Revised) Investment Management Bulletin May 2011 Borden Ladner Gervais LLP.

Comment period on the "cost disclosure and performance reporting" proposals published in June 2011 ended September 23, 2011. Comments, including comments from Borden Ladner Gervais LLP, being considered by the CSA and available on the OSC website.

See New Disclosure Rules Proposed for Registered Firms in Canada: Account- Level Charges and Performance Investment Management Bulletin September 2011 Borden Ladner Gervais LLP.

September 2011 omnibus/blanket orders include dealer registration relief for Canadian financial institutions trading in short-term debt. This latter relief expires September 28, 2014.

Registrant Regulation – IIROC Members

IIROC Notice Request for Comments (republication) 11-0005 Proposals to implement the core principles of the Client Relationship Model January 2011.

IIROC Notice Request for Comments 11-0061 Plain language rule re-write project February 2011.

IIROC Notice Request for Comments 11-0269 Proposed guidance on "Insider" Order Marking September 2011.

CSA Staff Notice 31-329 Omnibus/Blanket Orders exempting registrants from certain provisions of NI 31-103 September 2011.

(Final) Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations November 2011.

IIROC Rules Notice Guidance Note 11-0349 Guidelines for the review, supervision and retention of advertisements, sales literature and correspondence December 2011.

Ø

IIROC's proposal for Rule amendments to implement client relationship requirements in response to NI 31-103 is being considered by the CSA for final approval. IIROC members are exempt from relationship disclosure information (RDI) requirement in NI 31-103 until IIROC Rules concerning RDI are implemented (exemption expires December 31, 2013).

Other proposed amendments to IIROC Rules have also been published for comment to make IIROC Rules more consistent with NI 31-103.

IIROC has issued guidance and proposed guidance on various compliance issues significant to its members.

IIROC has undertaken a project to rewrite its Rules in plain language primarily to make the Rules more clear, concise and organized, although some substantive changes will also be made.

Amendments to NI 31-103 to provide for additional exemptions for IIROC members expected to come into force on February 28, 2012.

Registrant Regulation – MFDA Members

Consultation Paper on the Harmonization of Mutual Fund Distribution Regulations Autorité des marchés financiers October 2010.

Consultation Paper on the Use of Third Party Back-Office Service Providers MFDA Bulletin #0484-P June 2011.

CSA Staff Notice 31-329 Omnibus/Blanket Orders exempting registrants from certain provisions of NI 31-103 September 2011.

(Final) Amendments to National Instrument

31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations November 2011.

MFDA Bulletin #0505-P End of Transition Periods December 2011.

MFDA Bulletin #0507-P (Final) Amendments to MFDA Rule 5.3 (Client Reporting) and Form 1 December 2011.

MFDA Bulletin #0508-P MFDA Rule 5.3.5 (Performance Reporting): Suspension of June 2012 Implementation December 2011.

Ø

Comment period on the AMF consultation paper ended November 30, 2010. AMF later announced that it is working towards a later deadline than September 28, 2011 to achieve harmonization.

See AMF Consultation on Harmonizing Regulation of Quebéc Mutual Fund Dealers Investment Management Bulletin October 2010 Borden Ladner Gervais LLP.

Comment period on MFDA consultation period concerning issues arising from the use of third party service providers ended on September 30, 2011.

MFDA members exempted from relationship disclosure information (RDI) requirement in NI 31-103 provided MFDA members comply with MFDA RDI rules as and when implemented. This exemption expires December 31, 2013. Mutual fund dealers in Québec must provide RDI to new clients immediately and to existing clients by December 31, 2013.

Amendments to NI 31-103 to provide for additional exemptions for MFDA members expected to come into force on February 28, 2012.

Amendments to MFDA Rule 2.2.1 ("Know-your-client"), Rule 2.2.4 (Updating Client Information) and Policy No. 2 (Minimum Standards for Account Supervision) became effective on December 3, 2011.

MFDA Rule amendments have been finalized to implement certain client relationship model requirements specifically, quarterly client reporting obligations for MFDA members. CSA approval required for certain amendments.

MFDA has suspended the implementation of MFDA Rule 5.3.5 on performance reporting pending harmonization with performance reporting standards under NI 31-103 once adopted.

Registrant Regulation – Exempt Market Dealers

CSA Staff Notice 33-315 Suitability Obligation and Know Your Product September 2009.

CSA Staff Notice 31-323 Guidance Relating to the Registration Obligations of Mortgage Investment Entities February 2011.

OSC Staff Notice 33-735 Sale of Exempt Securities to Non-Accredited Investors May 2011.

CSA Staff Notice 31-324 Exempt Market Dealers and Account Statement Requirements in NI 31-103 June 2011.

CSA Survey – Exempt Market Dealer Activities and Business Models November 2011.

 

Ø

Various reports from the CSA and the OSC staff intended to highlight compliance issues significant to firms registered as EMDs. The 2011 annual report of the OSC staff referred to above provides additional discussion about issues specific to EMDs. CSA staff surveying registered EMDs about their business models and activities. This survey is linked to CSA Staff Notice 31-324 and responses are due by December 19, 2011. Additional guidance can be expected once survey results reviewed by CSA staff.

See Securities Regulators Provide Guidance on Registration Obligations for Mortgage Investment Entities Investment Management Bulletin March 2011 Borden Ladner Gervais LLP.

Registrant Regulation – Portfolio Managers

10 Most Common Deficiencies Among Portfolio Managers OSC October 2008.

CSA Staff Notice 33-315 Suitability Obligation and Know Your Product September 2009.

CSA Staff Notice 31-325 Marketing Practices of Portfolio Managers July 2011.

 

Ø

CSA staff report on marketing practices of portfolio managers updates and replaces earlier 2007 report from the OSC staff on the same topic. The 2011 annual report of the OSC staff referred to above provides additional discussion about issues specific to PMs.

Registrant Regulation – Investment Fund Managers

OSC Staff Notice 11-760 Report on Mutual Fund Sales Practices under Part 5 of National Instrument 81-105 Mutual Fund Sales Practices April 2007.

OSC Staff Notice 11-763 A Focused Review of the Securities Valuation and Expense Allocation Practices of Fund Managers July 2008.

Proposed Amendments to NI 31-103 Registration Requirements and Exemptions – Registration of International and Certain Domestic Investment Fund Managers October 2010.

Notice 31-320 Additional Request for Comment by the OSC and the AMF Proposed Exemptions from Investment Fund Manager Registration Requirement for International and Certain Domestic Investment Fund Managers October 2010.

Ø

OSC staff notices outline common compliance issues for fund managers in connection with management and distribution of investment funds. The 2011 annual report of the OSC staff referred to above provides additional discussion about issues specific to IFMs.

See OSC Provides Guidance on Complying with Mutual Fund Sales Practices Rule Investment Management Advisory May 2007 Borden Ladner Gervais LLP.

Comment period on the IFM-related amendments to NI 31-103 ended on January 13, 2011. Comments, including comments from Borden Ladner Gervais LLP, being considered by the CSA and available on the OSC website. Temporary exemptions regarding registration in jurisdictions other than the firm's principal jurisdiction (or at all, for international IFMs) extended to September 28, 2012.

See Canadian Securities Regulators Propose Registration for Non-Resident Investment Fund Managers Investment Management Bulletin November 2010 Borden Ladner Gervais LLP.

Point of Sale Disclosure for Mutual Funds

CSA Staff Notice 81-319 Status Report on the Implementation of Point of Sale Disclosure for Mutual Funds June 2010.

(Final) Amendments to National Instrument 81-101 Mutual Fund Prospectus Disclosure and related policy and forms and related instruments. October 2010.

CSA Staff Notice 81-321 Early Use of the Fund Facts to Satisfy Prospectus Delivery Requirements. February 2011.

Proposed Amendments to National Instrument 81-101 Mutual Fund Prospectus Disclosure and related policy and forms and related instruments. August 2011.

Ø

Amendments to National Instrument 81-101 requiring fund facts documents for mutual funds effective January 3, 2011. All funds were required to have fund facts documents for each series or class available and posted on SEDAR and websites by July 8, 2011.

Comment period on CSA proposals relating to delivery of fund facts documents post-trade ended November 10, 2011. Comments, including those of Borden Ladner Gervais LLP being considered by CSA and available on OSC website.

See Fund Facts Mandatory for Canadian Mutual Funds in 2011 Investment Management Bulletin October 2010 Borden Ladner Gervais LLP.

See Canadian Regulators Permit Delivery of Fund Facts in Lieu of Simplified Prospectus and Release Proposed "Stage 2" Point of Sale Amendments Investment Management Bulletin September 2011 Borden Ladner Gervais LLP.

Modernization of Investment Fund Rules

Proposed amendments to National Instrument 81-102 Mutual Funds and National Instrument 81-101 Mutual Fund Prospectus Disclosure and related policies. June 2010.

CSA Staff Notice 81-322 Status Report on the Implementation of Investment Fund Product Regulation Project and Request for Comment on Phase 2 Proposals. May 2011.

Ø

Comment period on proposed amendments to NI 81-102 and NI 81-101 which relate to "modernization" of the rules related to ETFs, money market funds, short selling and fund of funds, among other things, ended on September 24, 2010. Comment letters, including comment letter of Borden Ladner Gervais LLP, available on the OSC website. Final amendments expected to be published by year-end 2011.

See Canadian Regulators Propose Modernized Rules for Mutual Funds: ETFs, Money Market Funds, Short Selling, Fund of Funds Investment Management Bulletin July 2010 Borden Ladner Gervais LLP.

Comment period on proposals for Phase 2 of the investment fund modernization project ended July 25, 2011. Comment letters, including comment letter of Borden Ladner Gervais LLP, available on the OSC website. Development of a proposed rule to regulate closed-end funds expected to occur during 2012.

See Canadian Regulators Propose to Modernize Investment Fund Regulation Investment Management Bulletin June 2011 Borden Ladner Gervais LLP.

Investment Fund Governance

OSC Staff Notice 81-713 Focussed Disclosure Review National Instrument 81-107 Independent Review Committee for Investment Funds March 2011.

Ø

OSC Staff Notice describes the results of OSC staff's review of IRC and NI 81-107 related disclosure and makes suggestions for improvements.

See Additional Regulatory Guidance for Canadian Fund Managers and Independent Review Committees Investment Management Bulletin April 2011 Borden Ladner Gervais LLP.

Asset Backed Commercial Paper and Investment Funds

Securities Regulatory Proposals Stemming from the 2007/08 Credit Market Turmoil and its Effect on the ABCP Market in Canada October 2008.

Ø

Comment period on consultation paper ended February 16, 2009. CSA considering comments provided on various questions posed in consultation paper, including those related to investments by mutual funds, and specifically money market funds, in ABCP. Proposed rule amendments to NI 81-102 published for comment in June 2010 resulted from this consultation paper.

Securitized Products

Proposed National Instrument 41-103 Supplementary Prospectus Disclosure Requirements for Securitized Products, Proposed National Instrument 51-106 Continuous Disclosure Requirements for Securitized Products and Proposed Amendments to National Instrument 45-106 Prospectus and Registration Exemptions. April 2011.

Ø

CSA propose a specific securitized products regime, including new restrictions on distribution in the exempt marketplace. Comment period ended August 31, 2011, comments being considered by the CSA and available on OSC website.

See New Securitized Products Rules Proposed Securities & Capital Markets Alert April 2011 Borden Ladner Gervais LLP.

Scholarship Plan Regulation

Proposed Amendments to National Instrument 41-101 General Prospectus Requirements, Form 41-101F2 and related amendments (second request for comments). November 2011.

Ø

Comment period on the revised proposed amendments to National Instrument 41-101 to implement new prospectus disclosure for scholarship plans ends January 24, 2012.

Hedge Funds and other Alternative Investment Products

OSC Staff Notice 33-733 Report on Focused Reviews of Investment Funds, September 2008 – September 2009.January 2010.

Ø

OSC Staff Notice reports on findings from focused reviews of money market funds, hedge funds and structured products (nonredeemable investment funds) conducted from September 2008 – September 2009.

See also the discussion in the OSC's 2011 Compliance and Registrant Regulation Branch report (referred to above) regarding the linkages between systemic risk and hedge funds.

See OSC Targets Hedge Funds – Again Investment Management Alert February 5, 2009 Borden Ladner Gervais LLP.

Compliance Issues for Publicly Offered Investment Funds

OSC Staff Notice 33-733 Report on Focused Reviews of Investment Funds, September 2008 – September 2009. January 2010.

OSC Staff Notice 81-710 Approvals for Change in Control of a Mutual Fund Manager and Change of a Mutual Fund Manager under National Instrument 81-102 Mutual Funds May 2010.

OSC Staff Notice 81-711 Closed-End Investment Fund Conversions to Open-End Mutual Funds October 2010.

OSC Staff Notice 81-715 Cross-Listings by Foreign Exchange Traded Funds August 2011.

OSC Staff Notice 81-716 Summary Report for Investment Fund Issuers November 2011.

Ø

Various reports from the OSC staff highlight compliance issues significant to publicly offered investment funds. Various editions of the OSC's Investment Funds Branch Practitioner are also available on the OSC website and point out compliance and other issues noted by OSC staff.

OSC Staff Notice 81-716 describes the OSC staff's work to review portfolio holdings of investment funds to ensure appropriate disclosure. This review is being carried out via an extensive continuous disclosure review that commenced in the fall 2011. Additional information regarding fund portfolios is being collected and guidance can be expected once the results of the review are considered.

Prospectus Disclosure for Investment Funds

OSC Staff Notice 81-714 Compliance with Form 41-101F2 – Information Required in an Investment Fund Prospectus March 2011.

Proposed Amendments to National Instrument 41-101 General Prospectus Requirements and related instruments, including National Instrument 81-101 Prospectus Disclosure for Mutual Funds July 2011.

Ø

Comment period on proposed amendments to NI 41-101 and NI 81-101 ended October 14, 2011. Comments being considered by CSA and available on OSC website.

See Amendments to the Prospectus Rules Proposed Securities & Capital Markets Bulletin July 2011 Borden Ladner Gervais LLP.

Continuous Disclosure for Investment Funds

OSC Staff Notice 33-733 Report on Focused Review of Investment Funds, September 2008 – September 2009 January 2010.

AMF Activity Report for the Continuous Disclosure Review Program – Companies – Investment Funds December 2011.

Ø

OSC and AMF staff reports outline common deficiencies with investment fund continuous disclosure and highlight staff's continued focus on continuous disclosure reviews.

OSC Staff Notice 81-716 (referred to above) describes the OSC staff's work to review portfolio holdings of investment funds to ensure appropriate disclosure. This review is being carried out via an extensive continuous disclosure review that commenced in the fall 2011. Additional information regarding fund portfolios is being collected and guidance can be expected once the results of the review are considered.

Use of Prospectus Exemptions – Exempt Market-Place

BCN 2011/26 Adoption of Form 45-106F6 British Columbia Report of Exempt Distribution October 2011.

CSA Staff Consultation Note 45-401 Review of Minimum Amount and Accredited Investor Exemptions Public Consultation CSA November 2011.

Ø

Comment period on Staff Consultation Note about the use of the minimum amount prospectus exemption and the accredited investor prospectus exemption contained in National Instrument 45-106 Prospectus and Registration Exemptions ends February 29, 2012.

See Canadian Regulators Commence a Review of Minimum Amount and Accredited Investor Prospectus Exemptions Securities & Capital Markets Bulletin November 2011 Borden Ladner Gervais LLP.

See British Columbia Adopts New BC-Only Report of Exempt Distribution Securities & Capital Markets Bulletin October 2011 Borden Ladner Gervais LLP.

Capital Accumulation Plans and Mutual Funds

Joint Forum of Financial Market Regulators Guidelines for Capital Accumulation Plans May 2004.

Amendments to National Instrument 45-106 Prospectus and Registration Exemptions and Adoption of Local Prospectus and Registration Exemptions for Certain Capital Accumulation Plans October 2005.

Ø

All Canadian regulators, other than the OSC and the Québec regulator, granted "blanket" prospectus and registration exemptions to allow mutual funds to be used as investment options for CAPs. Comment period on proposed amendments to NI 45-106 ended January 19, 2006. Comment letters, including comment letter of Borden Ladner Gervais LLP, being considered by CSA.

Insider Reporting and Early Warning Reports

National Instrument 55-104 Insider Reporting Requirements and Exemptions, Companion Policy and Related Consequential Amendments, including to National Instrument 62-103 The Early Warning System and Related Take Over Bid and Insider Reporting Issues. January 2010.

Ø

National Instrument 55-104 and related amendments came into force on April 30, 2010. The accelerated filing deadline (from 10 to 5 days) for insider reports became effective on November 1, 2010.

See Changes to Insider Reporting: 5 Day Filing, Deemed Beneficial Ownership and Reporting for Derivatives Securities & Capital Markets Bulletin January 2010 Borden Ladner Gervais LLP.

See New Conditions to the Insider Reporting Exemption for Eligible Institutional Investors Effective April 30, 2010 Investment Management Alert April 2010 Borden Ladner Gervais LLP.

Beneficial Owners and Meetings

OSC Staff Notice 54-701 Regulatory Developments Regarding Shareholder Democracy Issues January 2011.

Proposed amendments to National Instrument 54-101 Communication with Beneficial Owners of Securities of a Reporting Issuer and Companion Policy 54-101CP, National Instrument 51-102 Continuous Disclosure Obligations and its related forms and Companion Policy (second request for comments) June 2011.

Ø

Comment period on OSC Staff Notice 54-701 ended March 31, 2011. Comments available on OSC website.

The comment period on the revised proposed amendments to NI 54-101, which would introduce, among other things a "notice and access" regime for all meetings other than meetings for investment funds and enhanced disclosure regarding the beneficial owner voting process, ended August 16, 2011. CSA considering comments received which are available on the OSC website.

Electronic Delivery of Documents

(Final) Amendments to National Policy 11-201 Delivery of Documents by Electronic Means – now renamed Electronic Delivery of Documents November 2011

Ø

Revised National Policy 11-201 came into effect on November 18, 2011. The changes to NP 11-201 are not substantive, but primarily clarify and update the language used in the National Policy.

Best Execution and Other Trading Rules

CSA/IIROC Joint Staff Notice 23-308 Update on Forum to Discuss CSA/IIROC Joint Consultation Paper 23-404 "Dark Pools, Dark Orders and Other Developments in Market Structure in Canada" and Next Steps. May 2010.

OSC Staff Notice 21-704 Market Regulation Branch Annual Report 2010 October 2010.

Joint CSA/IIROC Position Paper 23-405 Dark Liquidity in the Canadian Market November 2010.

Proposed Amendments to National Instrument 21-101 Marketplace Operation and National Instrument 23-101 Trading Rules March 2011.

Proposed National Instrument 23-103 Electronic Trading and Direct Electronic Access to Marketplaces April 2011.

Joint CSA/IIROC Staff Notice 23-311 Regulatory Approach to Dark Liquidity in the Canadian Market July 2011.

Ø

Comment period on proposed amendments to NI 21-101 and 23-101 ended June 16, 2011 and comment period on proposed NI 23-103 ended July 8, 2011. Comments being considered by the CSA and available on OSC website.

IIROC and the CSA have proposed amendments to universal market integrity rules (UMIR) and other trading rules concerning "dark liquidity" on Canadian equity marketplaces.

Trade-Matching

Revisions to CSA Staff Notice 24-305 Frequently Asked Questions About National Instrument 24-101 – Institutional Trade Matching and Settlement and Related Companion Policy May 2011.

Ø

CSA have provided guidance on compliance with NI 24-101 and regulatory expectations regarding same.

Regulation of Derivatives

Final Report Ontario Commodity Futures Act Advisory Committee January 2007.

Regulatory Analysis of Contracts for Differences (CFDs) Investment Dealers Association of Canada June 2007.

Bill 77 Derivatives Act (Québec) June 2008.The Derivatives Regulation Autorité des marchés financiers December 2008.

Policy Statements respecting Accredited Counter-parties, Hybrid Products and Self-Certification Autorité des marchés financiers January 2009.

OSC Staff Notice 91-702 Offerings of Contracts for Differences and Foreign Exchange Contracts to Investors in Ontario October 2009.

CSA Consultation Paper 91-401 Over-the-Counter Derivatives Regulation in Canada CSA Derivatives Committee November 2010.

CSA Consultation Paper 91-402 Derivatives: Trade Repositories June 2011.

CSA Consultation Paper 91-403 Derivatives: Surveillance and Enforcement November 2011.

Ø

Derivatives Act (Québec) and related regulations and policies came into force as of February 1, 2009.

See Québec Derivatives Act in Force as of February 1, 2009 Key Considerations for Industry Participants Investment Management Alert February 2, 2009 Borden Ladner Gervais LLP.

Comment periods on CSA Derivatives Committee's first and second consultation papers ended January 14, 2011 and September 12, 2011, respectively. Comment period on CSA's third consultation paper ends January 25, 2012. Comments available on OSC website. The three consultation papers released to date are three of eight consultation papers to be published by the CSA on the Canadian derivatives regime. Other consultation papers expected to be published in 2011/2012.

See Over-the-Counter (OTC) Derivatives market in Canada: On the Road to Reform and Regulation Financial Services Client Update November 2010 Borden Ladner Gervais LLP.

See OSC Issuers Staff Notice 91-702 Offerings of Contracts for Difference and Foreign Exchange Contracts to Investors in Ontario Securities & Capital Market Alert October 2009 Borden Ladner Gervais LLP.

See Continued Harmonization Regarding the Distribution of CFDs and FOREX: BC Securities Commission Grants Order to CMC Markets Securities & Capital Markets Alert June 2010 Borden Ladner Gervais LLP.

See Alberta Securities Commission Proposes Changes to Regulation of Over-the-Counter Derivatives Investment Management Bulletin May 2011 Borden Ladner Gervais LLP.

This Fall 2011 edition of What's Ahead? is current as of December 8, 2011.

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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.

Disclaimer

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.

General

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.

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