Specifically, OSC Staff state that, in their view, the
definition of the term "send" in the OBCA is inclusive
and does not prohibit the use of electronic delivery or electronic
documents, including the procedures contemplated by
notice-and-access, and that the OBCA does not impose an obligation
that a reporting issuer obtain consent to use electronic delivery
to send proxy-related materials. Accordingly, Staff conclude that
the OBCA does not prevent a reporting issuer from sending
proxy-related materials using notice-and-access and they do not
think it is necessary for OBCA issuers to obtain exemptive relief
in order to use it.
They also provide their views regarding compatibility with the
Electronic Commerce Act(Ontario).
Specifically, Staff state that notice-and-access is not
incompatible with the restriction in the ECA against requiring a
recipient to use or accept a document in electronic form without
his or her consent since, under notice-and-access, shareholders
have the option of requesting a paper copy at no charge. Staff also
clarify that notice-and-access is more than "merely posting on
a website" (which the ECA states does not constitute provision
of a document or information), since issuers must do more than
merely post their proxy-related materials, and must mail package to
shareholders in advance of a meeting which informs them of, among
other things, the website posting of the proxy-related
While this notice may help to clarify issues for OBCA issuers,
the situation for CBCA issuers is still unclear, as discussed in
our post from earlier this week. For more information, see OSC Staff Notice 54-702.
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