Canada: Canadian Continuous Disclosure Obligations Revamped

Canadian securities regulators recently adopted National Instrument 51-102, Continuous Disclosure Obligations, which changes some of the continuous disclosure obligations of companies that are reporting issuers in Canada and makes the continuous disclosure obligations uniform in all Canadian provinces and territories. Compliance dates vary, but many important changes take effect for interim filings for the first quarter of 2004. Canadian cross-border issuers should also read our supplement no. 2004-9TS, Continuous Disclosure Obligations: Relief Granted to Canadian Cross-Border Issuers, dated February 18, 2004. The major changes to the continuous disclosure obligations of Canadian issuers are summarized below.

The new rule does not apply to investment funds, and most issuers of exchangeable shares and guaranteed securities are exempt from the rule if they meet certain conditions. Although the continuous disclosure obligations apply to non-Canadian issuers that are reporting issuers in Canada, many non-Canadian issuers are exempt from the requirements. Non-Canadian issuers should refer to our client memo no. 2004-10T, Exemptions From Canadian Continuous Disclosure Obligations For Non-Canadian Issuers, dated February 18, 2004, which discusses exemptions in National Instrument 71-102, Continuous Disclosure and Other Exemptions Relating to Foreign Issuers.

Venture issuers will be subject to less stringent requirements or be exempted from some requirements altogether. A "venture issuer" is a reporting issuer that has no securities listed on the TSX, a U.S. marketplace or any marketplace outside Canada and the United States.

Reporting issuers that are not venture issuers must file their annual audited financial statements, annual MD&A and AIF within 90 days of the end of their financial year, and their interim financial statements and interim MD&A within 45 days of the end of the interim period. These shorter deadlines harmonize Canadian filing deadlines with SEC filing deadlines for U.S. domestic and foreign private issuers (although large U.S. domestic issuers have even shorter deadlines). The filing deadlines for venture issuers are 120 days for annual audited financial statements and MD&A and 60 days for interim financial statements and MD&A. Venture issuers are not required to file an AIF. An issuer that files any of these documents in a foreign jurisdiction before these deadlines must concurrently file the documents in Canada.

These accelerated filing deadlines apply to filings for financial years, and interim periods within financial years, that begin on or after January 1, 2004. The filing deadlines lead to a somewhat unusual result in that the first interim filing made under the new rule may be due before the due date for annual filings for the previous year. For example, issuers with a calendar year-end must make their annual filings by May 19, 2004 (140 days after the end of the financial year), but the filing for the first quarter will be due on Friday, May 14, 2004 (the 44th day after the end of the quarter, as the 45th day falls on a Saturday and filings can only be made on weekdays).

The other Canadian jurisdictions now join Ontario in permitting issuers to issue an earnings news release, publicly file their financial statements and MD&A on SEDAR, and post them on their company websites without triggering a requirement to concurrently send the documents to security holders.

The rule that requires issuers to send meeting and other materials to non-registered security holders (National Instrument 54-101) has long permitted non-registered security holders to decline to receive the proxy materials for routine annual meetings. (Proxy materials are the notice of meeting, the proxy circular, and the annual financial statements and MD&A that are typically included in the issuer’s "glossy" annual report to shareholders.) But the rules for registered holders lagged behind these rules: registered shareholders could not decline to receive proxy materials for annual meetings, and issuers had to send them the materials whether the shareholders wanted them or not.¹

The new rule puts registered and non-registered shareholders on an equal footing—at least with respect to annual financial statements and the annual MD&A.² Issuers with large numbers of registered shareholders may have an opportunity to reduce the number of annual reports they send, should they wish to do this. Annual financial statements and MD&A for financial years beginning on or after January 1, 2004 (and interim financial statements and MD&A for interim periods in those financial years) need be sent only to those security holders (registered or non-registered) who request them. Annually, the issuer must send each registered and non-registered security holder, other than debt holders, a form for requesting copies of these documents.

Once the request forms have been sent, the issuer need mail these documents only to (a) those beneficial owners who have returned their request form indicating that they wish to receive the materials, and (b) all registered owners who have not declined to receive the materials (because corporate statutes generally require the issuer to send the audited financial statements to all registered shareholders other than those who have declined, in writing, to receive them).

If the financial statements are requested, the related MD&A must also be sent at the same time, and both must be sent by the later of the financial statement filing deadline and 10 days after receipt of the request.

Issuers should contact their registrar and transfer agent to discuss this new procedure.

Documents are permitted to be sent to security holders electronically if consent is obtained. Therefore, issuers should ensure that the request form asks for email addresses and consent to electronic delivery of security holder materials to further reduce printing and mailing costs. The consent to electronic delivery that security holders give to their dealers and other intermediaries under NI54-101 cannot be relied on by issuers that wish to communicate directly with their security holders.

Although the TSX rules (and some corporate statutes, such as the Canada Business Corporations Act) require that issuers hold their annual meeting of shareholders within six months of the year-end (June 30 for issuers with a December 31 year-end), most issuers hold their annual meeting much earlier, often in April or May. Under the new financial statement filing deadline, the meeting needs to be held earlier than the six-month outside limit if the annual report (containing the annual financial statements and annual MD&A) is to be mailed in the same envelope as the proxy material for the annual meeting.

The reason for this is as follows. Issuers incorporated under Ontario’s Business Corporations Act can send their proxy material up to 50 days before the meeting. When added to the requirement that an issuer send the annual financial statements and MD&A within 90 days of the end of the financial year, the meeting would have to be held not later than the 140th day after the year-end (i.e., May 20, 2005 for a company with a December 31 year-end). Companies incorporated under the CBCA can send their proxy material up to 60 days before a meeting. Accordingly, the meeting would have to be held no later than the 150th day after the year-end (i.e., May 30, 2005 for a company with a December 31 year-end).

There continues to be no requirement for the auditor to review the interim financial statements. However, if the auditor was not engaged to review the interim financial statements, or was engaged to review them but was unable to complete the review, the interim financial statements must be accompanied by a notice indicating this fact. If the auditor performed a review and expressed a reservation in its interim review report, that report must accompany the interim financial statements.

This disclosure requirement is effective with respect to interim periods in financial years beginning on or after January 1, 2004.

The requirement that the audit committee review, and the board approve, the annual financial statements has been expanded to require the audit committee to review, and the board to approve, the interim financial statements and both the annual and the interim MD&A before they are filed. The board may delegate the approval function with respect to the interim financial statements and interim MD&A to the audit committee.

The new approval requirements are effective with respect to financial years, and interim periods within financial years, beginning on or after January 1, 2004. The requirement that the audit committee review the interim financial statements and interim and annual MD&A is contained in Multilateral Instrument 52-110, Audit Committees, and will apply on the earlier of (a) the date of the first annual meeting of shareholders after July 1, 2004, and (b) July 1, 2005.

The annual MD&A form has been revised to include additional information that will permit a more informed analysis of the issuer’s true financial picture. Enhanced disclosure will be required about (a) liquidity (including a tabular presentation of contractual obligations) and capital resources; (b) off-balance sheet arrangements; (c) related party transactions; (d) fourth-quarter events; (e) proposed asset or business acquisitions or dispositions; and (f) financial instruments. Issuers other than venture issuers must give more detailed disclosure of critical accounting estimates. Issuers will be required to discuss and analyze any changes in accounting policies, both those adopted during the year and those expected to be adopted in the future. Venture issuers that have had no significant revenue from operations in the previous two financial years will be required to disclose a breakdown of the material components of their expenditures.

Outstanding share data must now be disclosed in the MD&A, instead of the AIF. When the transitional periods in Multilateral Instrument 52-109, Certification of Disclosure in Issuers’ Annual and Interim Filings have expired, two additional items of disclosure will be required. The CEO’s and CFO’s conclusions regarding the effectiveness of the issuer’s disclosure controls and procedures must be disclosed, as must any material changes in internal control over financial reporting. Issuers have also been instructed to write the MD&A in plain language.

The transitional periods in the certification rule begin to expire on March 30, 2005. Please refer to our client memo no. 2004-4T, Canadian Investor Confidence Rules Finalized, dated January 21, 2004, for the detailed transitional provisions. This client memo is available on our website.

The interim MD&A must update the annual MD&A and include a discussion of the current quarter and year-to-date results, changes in results of operations that are not related to ongoing business operations and any seasonal aspects of the business that affect its financial condition, results of operation and cash flows. Again, when the transitional periods in the certification rule expire, issuers will be required to disclose in the interim MD&A any material changes in internal control over financial reporting.

The new form of MD&A must be used for the MD&A for financial years, and interim periods in those financial years, beginning on or after January 1, 2004.

The first MD&A prepared using the new form—which will be an interim MD&A—must contain all the information required to be disclosed in an annual MD&A, for the relevant period. Issuers have, however, been given the option of adopting the new form of annual MD&A early (i.e., for a financial year-end that began before 2004). If this option is chosen, the first interim MD&A using the new form can simply be an update of the annual MD&A. Therefore, an issuer with a December 31 year-end has the option of either (a) preparing the 2003 annual MD&A using the existing form, and preparing a longer-than-usual first quarter 2004 interim MD&A using the new form for annual MD&A, but only in respect of the interim period, or (b) preparing the 2003 annual MD&A using the new form, and preparing a typical first quarter 2004 interim MD&A using the new form but that merely updates the 2003 annual MD&A. Option (b) appears to be the prevalent choice among Canadian public companies.

A requirement has been added to update forward-looking information that was presented in a previous MD&A if intervening events make that previous disclosure misleading.

The new AIF requires disclosure of the following matters that are currently required in a prospectus: (a) production and services, specialized skill and knowledge, and economic dependence; (b) the capital structure and material attributes of each class of authorized security; (c) ratings from any ratings organizations; (d) trading prices and volumes; (e) sales of securities during the year; (f) escrowed securities; (g) promoters; (h) legal proceedings; (i) interest of management and others in material contracts; (j) material contracts not made in the ordinary course of business; and (k) experts responsible for opinions in the AIF and their interests in the issuer. The AIF must also be written in plain language.

Other enhanced disclosure requirements are to (a) describe any contracts (including ordinary course contracts) that the company depends on; (b) disclose the company’s social and environmental policies to the extent that they are fundamental to the operations; and (c) disclose whether any of the directors, executive officers or significant shareholders of the issuer were, in the last 10 years, directors or executive officers of any entity at the time an event took place for which the entity was sanctioned, or within one year of an entity becoming insolvent (this information will also have to be disclosed in the proxy circular). Furthermore, the AIF will also have to contain the audit committee disclosures mandated by the audit committee rule when the transitional period in that rule expires.

The new AIF must be used for financial years beginning on or after January 1, 2004. Disclosure about the audit committee will be required in any AIF filed on or after the earlier of (a) the date of the first annual meeting of shareholders after July 1, 2004, and (b) July 1, 2005.

The CEO and CFO of every reporting issuer must certify the filings (the financial statements, MD&A and, in the case of the annual filings, the AIF) for each annual or interim period beginning on or after January 1, 2004. During a transitional period, "bare" certificates dealing only with misrepresentations and fair presentation are required. For further information, please refer to our client memo no. 2004-4T, Canadian Investor Confidence Rules Finalized, dated January 21, 2004, which is available on our website.

The disclosure requirements relating to material change reports are identical to the current Ontario rules. However, there is a new form for the material change report, which must be used for reports filed on or after March 30, 2004.

A new "business acquisition report" must be filed within 75 days of the completion of a significant acquisition (unless a proxy circular concerning the acquisition has been filed or the issuer is listed on the TSX Venture Exchange and has provided similar information in a "filing statement"). The business acquisition report will include a description of the business acquired, one or two years’ historical financial statements of the business acquired and pro forma financial information. An acquisition is significant if (a) the assets or income from the continuing operations of the acquired business (or related businesses) exceed 20% of the issuer’s assets or income from continuing operations, or (b) the investment in and advances to the acquired business (or related businesses) exceed 20% of the assets of the issuer. For venture issuers, the 20% threshold is raised to 40% and the income test is not applied.

Business acquisition reports are required for all significant acquisitions made on or after March 30, 2004 unless the first legally binding agreement for the acquisition was entered into before March 30, 2004.

Proxy circulars sent on or after June 1, 2004 must contain new content and must be written in plain language.

The proxy circular must now include disclosure regarding (a) directors who were officers or directors of another issuer that has been sanctioned by the securities regulators or that became bankrupt or subject to insolvency proceedings; (b) equity compensation plans; (c) aggregate indebtedness of all current and former executive officers, directors and employees; (d) the auditor; (e) significant acquisitions; (f) the creation of restricted securities; and (g) how security holders may contact the issuer to obtain copies of the financial statements and MD&A.

Additional changes have also been made with respect to disclosure of indebtedness of individual directors, executive officers and senior officers. The threshold for routine indebtedness has been raised to $50,000 from $25,000, and any indebtedness forgiven during the year must now be disclosed.

The proxy circular must also contain a cross-reference to the sections of the AIF that contain the disclosures required by the audit committee rule.

The statement of executive compensation included in the proxy circular has also changed. The most significant change is in the definition of "named executive officer", with the chief financial officer now a named executive officer regardless of his or her level of compensation. Consequently, disclosure is required in relation to the CEO and CFO and the three most highly compensated executive officers (other than the CEO and CFO) earning more than $150,000 (this is an increase from the $100,000 amount in the old form).

The disclosure requirements that have existed under Ontario law for restricted shares have been adopted nationally. If an issuer has outstanding equity securities that carry a lesser vote per security than another class of securities, standardized language must be used to describe the securities. These securities must be referred to in disclosure documents as non-voting, subordinate voting or restricted voting securities. Any restrictions on the voting rights and the rights of restricted shares to participate in any takeover bid made for securities with superior voting rights must also be described.

In addition, all documents sent to the holders of one class of equity securities must also be sent to the holders of restricted shares.

For financial years beginning on or after January 1, 2004, reporting issuers are required to file other documents or reports with the securities regulators. These include the following:

• A report containing a brief description of each matter voted on by the security holders and the results of the vote. If the vote was conducted by ballot, the report must also include the number or percentage of votes cast for and against the resolution as well as the number or percentage of votes withheld. This report must be filed on SEDAR so it will be publicly available. Venture issuers are not required to file this report.

• All news releases disclosing information about the issuer’s historical or prospective results of operations or financial condition for a financial year or interim period (these news releases will then be certain to be documents to which civil liability will attach once amendments to the Ontario Securities Act that impose liability for continuous disclosure are proclaimed into force).

• Copies of all disclosure materials sent to security holders.

• A notice informing the regulators that the issuer has either become or ceased to be a venture issuer.

• Constating documents (e.g., articles and by-laws), shareholder or voting trust agreements (if the issuer has access to them), shareholders’ rights plans and any other contracts that materially affect the rights or obligations of security holders generally.

• Any contracts that are material to the issuer which were entered into during the year (or in a previous year if it is still in effect) unless they were entered into in the ordinary course of business. Contracts entered into before January 1, 2002 need not be filed.

Generally, Canadian early warning rules require that a news release be issued and that an early warning report be filed when a person acquires more than 10% of a reporting issuer’s securities. NI71-102, Continuous Disclosure and Other Exemptions Relating to Foreign Issuers exempts from these early warning requirements the acquisition of securities of many non-Canadian companies that are subject to the requirements of the SEC or 15 other designated foreign jurisdictions, if (a) the comparable requirements of the SEC or the designated foreign jurisdiction are complied with, and (b) copies of the reports that are filed with the SEC or foreign securities regulators are also filed in Canada.

This exemption will be available to Canadian issuers that acquire securities of these foreign issuers on or after March 30, 2004.

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NI51-102, Continuous Disclosure Obligations and copies of the new forms for MD&A, AIFs, material change reports, business acquisition reports, proxy circulars and the statement of executive compensation are available on the OSC’s website at

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