Originally published in Blakes Bulletin on
Securities Regulation, April 2008
Further to our bulletin of
October 2007, the Canadian Securities Administrators (CSA)
recently implemented proposed amendments to the proxy
solicitation and information circular provisions of National
Instrument 51-102 Continuous Disclosure Obligations
(NI 51-102) and its related companion policy. These amendments
will come into force, subject to ministerial approvals, on July
4, 2008 in all provinces.
The amendments add a new exemption from the information
circular requirements in NI 51-102 so that proxies can be
solicited, other than by or on behalf of management of a
reporting issuer, without preparing and sending an information
circular to shareholders if the solicitation is conveyed by
public broadcast, speech or publication.
Companion policy CP 51-102 has also been amended to provide
guidance on what constitutes a public solicitation. A public
solicitation will generally include a solicitation made by a
speech in a public forum, a press release, a statement provided
through a broadcast medium or by a telephone conference call, a
newspaper or magazine advertisement or over the Internet. The
CSA propose that a solicitation will generally be considered to
be public if it is disseminated in a manner calculated to
effectively reach the marketplace. A proxy solicitation to the
public will not include a solicitation made by phone, mail or
e-mail to only a select group of security holders of a
Finally, the existing exemption in section 9.5 of NI 51-102
has been broadened so that it applies to a person or company
that solicits proxies, not just reporting issuers. In
particular, a person or company that solicits proxies and
complies with substantially similar requirements of the laws
under which the relevant reporting issuer is incorporated,
organized or continued shall be exempt from the proxy
solicitation and information circular provisions of NI
The CSA have stated that the amendments are designed to
address the evolution of increased shareholder rights under the
corporate law. Current corporate legislation permits a
dissident shareholder to solicit proxies without preparing and
sending an information circular to shareholders if the
solicitation is conveyed by public broadcast, speech or
publication. The amendments ensure that securities legislation
generally corresponds with the corporate law.
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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