Canada: Capital Markets Bulletin - February 17-21, 2014

FROM THE REGULATORS

OSC Rule 11-501 Electronic Delivery of Documents to the Ontario Securities Commission

By: Alexis Bowie, Anita Kim, Jamie Litchen and Joel McElravy

Effective February 19, 2014, certain documents previously filed in paper format with the OSC must now be filed electronically through the OSC's web filing portal. These documents generally include forms, notices and other materials required under Ontario's securities rules that are not already covered by SEDAR, SEDI and NRD. Any filing fees applicable in connection with an electronic filing are now payable online. For the purposes of securities legislation, a document filed electronically is filed on the day the electronic transmission of that document is complete. 

Related amendments to the Securities Act (Ontario) General Regulation and to National Policies 11-202 Process for Prospectus Reviews in Multiple Jurisdictions, 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions and 11-205 Process for Designation of Credit Rating Agencies in Multiple Jurisdictions also come into effect on February 19, 2014.

Click here to view the full text of OSC Rule 11-501.

Proposed Legislation to Regulate Financial Advisors

By: Greg Hogan

A private members bill, Bill 157, from Ontario Liberal MPP Rick Bartolucci proposes a new regime to licence and regulate financial advisers in the province. The bill passed first reading on February 18, 2014. The regime would cover all those who provide "financial advice", being "advice on investment, financial risk management or financial risk mitigation matters that identifies a client's financial needs, risks or objectives and establishes strategies to address them". Many of the details of the regime are left to be fleshed out by regulations, but given this is a private members bill and not a government bill, it is unclear whether it will get any further than it has. This is especially true after the Ministry of Finance has only recently begun a consultation process to assess whether a new regulatory scheme for financial planners is warranted and what it might look like. Transcripts of the initial roundtables with stakeholders show an industry that recognizes a problem, but cannot agree on what the problem is or the extent of any solution - encompassing just those advisors that are unregulated at this time or creating something that covers the whole industry. Which way the government ultimately goes, if any, remains to be seen, which is why the proposal in Bill 157, an attempt to be all encompassing, may be premature at this time. It does seem that there is momentum to make changes that are more than minor in nature. We will monitor developments.

LEGAL BRIEFS AND COMMENTARY

Updates and commentary from Canada and around the world.

Investment Industry Pushes Back Against Regulation of "Negligence" and Breach of Industry Standards

By: Adria Leung Lim

The Financial Post recently published an article relating to Canadian regulators seeking to introduce a "negligence" standard for enforcement cases involving investment dealers. The Investment Industry Association of Canada (IIAC) has concerns that this new standard is too broad and far-reaching, especially since hearing panels of the Investment Industry Regulatory Organization of Canada (IIROC) will have the power to impose disciplinary action should the standard be breached. This would include suspensions and bans on dealers and individuals who breach industry standards.

It is IIAC's position that to base a professional discipline on a standard of simple negligence is problematic in that negligence does not require any intent to commit wrongdoing, and the manner in which negligence will be assessed is unknown. IIAC also objected to the imposition of a negligence standard in professional discipline cases for investment dealers when no other profession to its knowledge does the same. Cases involving breaches of industry standards should be dealt with by the courts, rather than by a self-regulatory agency such as IIROC.

IIAC is also pushing back on IIROC's plan to impose disciplinary action on conduct that "displays an unreasonable departure from standards that are expected to be observed", as it believes that industry members will not have advance knowledge of what is expected of them.

IIAC's letter addressed to IIROC and the Ontario Securities Commission with respect to the issues discussed above can be viewed here.

CBB KNOWLEDGE CENTRE

Tips and guidelines to assist our clients in understanding the law and becoming better drafters.

Disclosure Matters

Audit Committees – Annual Information Form and Management Information Circular Disclosure

By: Jennifer Hansen and Jennifer Poirier

Issuers (other than venture issuers) must provide in their Annual Information Form ("AIF") certain audit committee disclosure required by Form 52-110F1 (section 5.1, National Instrument 52-110 – Audit Committees ("NI 52-110")). This includes a copy of the audit committee charter, member's education and experience, any reliance on certain exemption contained in the instrument and fees paid to the auditor. However, in addition to this requirement, non-venture issuers must also include in their management information circular a cross reference to the sections in their annual information form that set out this information (section 5.2, NI 52-110). Venture issuers must disclose basically the same information under Form 52-110F2, but as they are not required to file an AIF, this disclosure would be: (a) in their management information circular for venture issuers that solicit proxies for the election of directors; or (b) in their annual information form or management discussion and analysis  (sections 6.1 and 6.2 of NI 52-110). "Venture issuer" generally means an issuer that does not have securities listed or quoted on the TSX, a U.S. marketplace, or most marketplaces outside of Canada and the U.S. (see section 1.1 of 52-110 for further details).

PUBLIC COMPANY ACTIVITY

Information and intelligence about what public companies are doing in the market.

The Public Company Survey

A Review of Insider Trading Policies of TSX Listed Issuers

By: Greg Hogan and Afzal Hasan

Insider trading policies are commonly implemented by reporting issuers to prevent the occurrence (or allegation) of insider trading. In addition to prohibitions on trading by insiders with knowledge of material undisclosed information, these policies often also impose regularly scheduled restrictions on trades in the issuer's securities when such information is likely to exist, most typically during the period financial statements are being prepared. These recurring restricted periods are referred to as "blackout" periods. A policy imposing such restricted periods is recommended by securities regulators.

While the trading restrictions imposed by law require actual knowledge of material undisclosed information, most insider trading policies impose a higher standard of conduct, by, among other things, applying a blackout during a pre-determined period in which financial statements are expected to be in the process of being prepared and not yet disclosed, irrespective of whether or when an insider gains knowledge of material undisclosed information.

Securities regulators also recommend that issuers adopt an insider trading policy that provides for a senior officer to approve and monitor the trading activity of insiders, officers and senior employees.

Accordingly, the specific length and restrictions imposed during a blackout can vary. Insider trading policies may further deal with exercising options, which may be permitted if no sale is made, and approvals for trades by persons covered by the policy.

Recent research suggests that the stringency of insider trading restrictions for Canadian public issuers has a degree of correlation with specific issuer attributes, such as the issuer's market to book value ratio, return volatility, whether it is cross-listed in the U.S., and the existence of controlling shareholders.

We selected a random sample of 30 TSX-listed issuers and reviewed the timing of the initiation of a blackout period, the termination of the blackout period, the restrictions on option exercises during a blackout and requirements for approval of trades.

Initiation of blackout. Our survey suggests there are significant variations in the length of blackout periods. The longest blackout period in the sample commences 45 days prior to year end and 30 days prior to quarter end, while the shortest blackout period starts a mere 2 days prior to the release of financial statements. Most blackouts were tied to the period end, with a not insignificant minority (10 issuers) being tied to the release date. In addition, three of the issuers sampled do not impose a pre-determined blackout period, but instead provide for blackout periods being imposed on an ad hoc basis. The model policy published by the Canadian Investor Relations Institute (CIRI) suggests quarterly trading blackouts that commence on the first day following the end of a quarter.

Termination of blackout. These blackout periods surveyed generally end shortly after the release of financial statements, with most ending one (10 issuers) or two (9 issuers) trading days after release. Two, however, ended on the same day as the release, and several had periods that were in calendar days or hours, which may not be sufficient time for the results to be considered, to be fully disseminated to the public and assume that the results can be assessed as easily whether it is a trading/business day or not. The CIRI guidelines suggest that a blackout should end on the second business day following the release of the financial results.

Option exercises. The survey also indicates the exercise of options without a subsequent sale of the underlying share is sometimes permitted (12 issuers), and sometimes not (6 issuers), with the remainder being silent regarding option exercises. Option exercises without a subsequent sale do not pose any substantive policy concerns as the insider is required to pay a set amount for the shares, an amount that does not depend on the market price and would typically only occur when the exercise price is below the market price. In order to monetise the benefit of the option, the insider must still wait for the blackout period to be terminated (and may then also need approval – see below).

Trade approvals. Close to a majority (14 issuers) require pre-approval of all trades by insiders in the issuer's securities, regardless of when such trade is made. However, this left 6 issuers that only required notice and 10 that did not require any action by an insider prior to a trade.

Public Offerings [lead underwriters noted/agents noted]

Equity Offerings

  • On February 12, 2014, Atrium Mortgage Investment Corporation filed a preliminary short form prospectus to qualify the distribution of $30,000,000 aggregate principal amount of 6.25% convertible unsecured subordinated debentures in denominations of $1,000 and multiples thereof at a price of $1,000 per debenture. [TD Securities Inc., RBC Dominion Securities Inc. and CIBC World Markets Inc.]
  • On February 12, 2014, JFT Strategies Fund filed a preliminary short form prospectus to qualify the distribution of class A units and class F units for maximum gross proceeds of $50,000,000. Number of units to be determined. [CIBC World Markets Inc., National Bank Financial Inc, RBC Dominion Securities Inc. and TD Securities Inc.]
  • On February 13, 2014, Aquinox Pharmaceuticals, Inc. ("Aquinox") filed a preliminary long form non-offering prospectus to qualify the issuance of shares of common stock of Aquinox issuable upon (i) the exchange of common exchangeable shares of Aquinox Pharmaceuticals Inc. for an equivalent number of common shares and (ii) the conversion of shares of preferred stock of Aquinox for an equivalent number of common shares. Number of common shares to be determined.
  • On February 14, 2014, Cortex Business Solutions Inc. filed an amended and restated preliminary short form prospectus to qualify the distribution of 80,000,000 common shares for gross proceeds of $8,000,000. [Cormark Securities Inc.]
  • On February 14, 2014, Rogers Communications Inc. filed a preliminary short form base shelf prospectus to qualify the distribution of debt securities in an aggregate amount not to exceed $4,000,000,000.
  • On February 18, 2014, Gran Colombia Gold Corp. filed an amended and restated preliminary short form prospectus to qualify the distribution of units for minimum gross proceeds of $7,000,000 and maximum gross proceeds of $15,000,000. Number of units to be determined. [GMP Securities L.P.]
  • On February 18, 2014, Santacruz Silver Mining Ltd. filed a preliminary short form prospectus to qualify the distribution of 10,750,000 common shares for gross proceeds of $10,750,000. [Canaccord Genuity Corp.]

Upcoming Shareholder Meetings

  • On March 13, 2014, the shareholders of Witwatersrand Consolidated Gold Resources Limited ("Wits Gold") will be asked to vote to approve a scheme of arrangement under South African law pursuant to which Sibanye Gold Limited will acquire all of the shares of Wits Gold for consideration of ZAR11.55 (equivalent to CAD1.19 converted at a CAD:ZAR exchange rate of 9.6875 as at December 9, 2013) for each Wits Gold share as set out in the Scheme Implementation Agreement.
  • On March 20, 2014, the common of Yoho Resources Inc. ("Yoho") will be asked to vote to approve a plan of arrangement (the "Arrangement") pursuant to which each issued and outstanding common share of Yoho (the "Yoho Shares") as at the effective time of the Arrangement will be exchanged for one (1) new common share in the capital of Yoho and a pro rata entitlement to the aggregate 13,629,442 common shares (the "Storm Shares") of Storm Resources Ltd. ("Storm") currently held by the Yoho Resources Partnership. Based on an aggregate of 50,733,687 Yoho Shares issued and outstanding as at February 12, 2014 (on a non-diluted basis), under the Arrangement each common Shareholder of Yoho shall be entitled to receive approximately 0.26864 of a Storm Share for each Yoho Share held.

Disclosure Highlights - Risk Factors

Our focus on risk factors is intended to highlight the ways in which issuers are disclosing specific, material risks to their business rather than relying on market standards or boilerplate.

Clearwater Seafoods Incorporated, Prospectus (January 27, 2014)

By: Myroslav Chwaluk 

Clearwater ("the Corporation") carries on the business of, and the ownership, operation and lease of assets and property in connection with, the harvesting, processing, distribution and marketing of seafood.

Resource Supply Risk

The Corporation's business is dependent on the allocated quotas of the annual Total Allowable Catch ("TAC") for the species of seafood it harvests. The annual TAC is generally related to the health of the stock of the particular species as measured by a scientific survey of the resource. The population and biomass of shellfish stocks are subject to natural fluctuations, some of which are beyond the Corporation's control, and which may be exacerbated by factors such as water temperatures, food availability, the presence of predators, disease, disruption in the food chain, reproductive problems or other biological issues. The Corporation is unable to fully predict the timing and extent of fluctuations in the population and biomass of the shellfish stocks it harvests and processes, and the Corporation therefore may not be able to engage in effective measures to alleviate the adverse effects of these fluctuations. In addition, the population models utilized by scientists evaluating the fisheries in which the Corporation operates are constantly evolving. Certain changes in the population models could negatively impact future biomass estimates. Any material reduction in the population and biomass or TAC of the stocks from which the Corporation sources seafood would materially and adversely affect the Corporation's business. Any material increase in the population and biomass or TAC could dramatically reduce the market price of any of the Corporation's products. The governments of Canada and Argentina set the annual TAC for each species by reviewing scientific studies of the resource and then consulting with key stakeholders, including the Corporation and its competitors, to determine acceptable catch levels. The potentially differing interests of the Corporation's competitors may result in conflicting opinions on issues around resource management, including the establishment of TACs and other management measures potentially limiting the Corporation's ability to grow, to fully capitalize on its investments in harvesting capacity, or to achieve targeted yields from the resource, which may adversely affect the Corporation's financial condition and results of operations.

Resource supply risk is managed through adherence with government policies and regulations related to fishing in Canada and Argentina and the Corporation's investment in science and technology, which enables the Corporation to understand the species that it harvests. The Corporation has invested in projects with the scientific community, such as ocean floor mapping and the resource assessment surveys, to ensure access to the best available scientific information. Resource management plans, developed by Canada's Department of Fisheries and Oceans, are developed through an open and transparent process with strong input from industry participants.

The Corporation engages in these processes to promote best in class, robust, and sustainable management of the resource. The Marine Stewardship Council certification of all of the Corporation's core species demonstrates that the resources that the Corporation harvests meet the leading global standard for sustainable fisheries management practice. The Corporation further mitigates the risk associated with resource supply and competition through the diversification across species.

WHAT WE'RE READING

Capital Markets

By: Greg Hogan

Academic Paper: Proposal to Change the US Approach to Automatic Securities Trading Plans

Apropos of our survey on insider trading policies above, John P. Anderson of the Mississippi College School of Law has posted a paper called "Anticipating a Sea Change for Insider Trading Law: From Trading Plan Crisis to Rational Reform" proposing reforms to automatic securities trading plans under United States securities laws. These trading plans are prescribed affirmative defences under SEC Rule 10b5-1 to insider trading liability. They are the analogues to the automatic securities purchase plans and automatic securities disposition plans we see in Canada. All such plans permit trades to occur at times when the insider may be in possession of material non-public information or during blackout periods without insider trading liability (provided certain requirements are met for such plans, the most important of which are implementation at a time when the insider is not in possession of material non-public information and elimination of discretion). In the United States, recent studies have shown that insiders availing themselves of these plans tend to outperform the market, leading to charges that insiders have been taking advantage of loopholes in the law related to timing of disclosures and selective termination of plans. Anderson proposes that the law permit insiders "complete freedom to actively trade (or abstain from trading) based on their firm's material non-public information" provided the plan is approved and the fact that such trading will occur is made public. The argument is based on the element of fraud that must be present in United States illegal insider trading (by permitting and announcing, the fraud no longer exists) and a belief that there are economic and moral justifications to permitting such trading. On that basis, plan terminations are no longer an issue as they are not necessary. On the question of timing of information, these modified plans would reduce incentives to time disclosures. And any remaining abuse could be dealt with through existing liability and enforcement mechanisms.

These automatic plans are much more prevalent in the United States, with little or no discussion in Canada as to their abuse here. Reforms such as these will be interesting to watch if they gain any traction, but it is unlikely that we would see this here, which could move our similar but different regimes further apart. The Canadian illegal insider trading regime is not based on fraud or scienter, and do not need theories such as misappropriation. Here illegality is based simply on trading while in possession of material non-public information.

Diversions

By: Sean Williamson

Olympic Hockey

Following Canada's nail-biting victory over Latvia, the USA's defeat of the Czech Republic and Canada's thrilling victory over the USA in the women's gold medal game on Thursday, Friday's  men's semi-final will be a re-match of the gold medal game from Vancouver in 2010. As we all know, Team Canada took home the gold in a storybook finish with this year's captain, Sidney Crosby, scoring the overtime winner. So far in Sochi, Team USA is riding high and Canada has yet to really find its offensive groove, but the game should be a classic. You can cheer on Team Canada to the gold medal game on Friday, February 21 at 12:00 EST on CBC, or live stream it here. For all the details (if you're just tuning in now) and a prediction that the US will win, see this article in the Bleacher Report.

In the Bleak Midwinter

The cruel, endless winter of 2013-2014 took its toll once again this week, with a blast of snow early Tuesday morning in Toronto, but it appears to be slowly receding with the prospect of torrential rain scheduled for this weekend. If the bleak midwinter has got you to the point where no amount of caffeine could possibly perk you up, don't worry, because the good folks at BlogTO have compiled a list of coffee shops that will serve you something to take the edge off: alcohol. Click here for BlogTO's list of the 10 best coffee shops in Toronto that also serve adult beverages.  

WHAT WE'VE BEEN UP TO

Recent Transactions

We acted for Allana Potash Corp. in connection with its strategic alliance with Israel Chemical Ltd. ("ICL"), one of the world's largest fertilizer producers, according to which ICL will provide financial support and technical cooperation for the development of Allana's Danakhil potash project in Ethiopia. The strategic alliance also includes a key off-take agreement with respect to the Danakhil project.

We acted for RBC Dominion Securities Inc. and a syndicate of underwriters in connection with a bought deal offering of units by True Gold Mining Inc. The proceeds of the offering are intended to be used by the company in the development of its project in Burkina Faso, as well as for working capital purposes. Click here for further details.

We acted for Tembo Gold Corp. in connection with its private placement of units. The proceeds of the offering will be used to fund continuing exploration costs on its properties in Tanzania and for working capital purposes. Click here for further details.

We acted for the special committee of Canada Lithium Corp. in connection with its business combination with Sirocco Mining Inc. The business combination created a significant industrial minerals producer in both the iodine and lithium markets, now renamed RB Energy Inc. Click here for further details.

We acted for Black Iron Inc. in connection with its bought deal private placement of units. The proceeds of the offering are intended to be used for the company's ongoing development activities.

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.

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Authors
Gregory Hogan
Adria Leung Lim
Sean Williamson
 
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