Canada: NI 31-103 Amendments: EMDs Banned From Prospectus Offerings

New custody rules for non-SRO registrants also introduced

Under a series of amendments to National Instrument 31-103 – Registration Requirements, Exemptions and Ongoing Registrant Obligations published on July 27, 2017, the CSA have banned exempt market dealers (EMDs) from participating in prospectus offerings in any capacity, including as underwriters and selling group members. The ban extends to securities underlying special warrants that are qualified by a prospectus and to the sale of prospectus-qualified investment funds.  For prospectus deals, EMDs will be restricted to participating in a concurrent private placement, if any, meaning EMD clients will receive securities subject to a four-month hold rather than freely tradable securities under the prospectus. This is not the first time the concept of a ban was raised; similar amendments were first proposed in December 2013 but later withdrawn.

The Amendments

The Amendments are organized into four tranches, specifically "Custody Amendments", "Exempt Market Dealer Amendments", "Client Relationship Model Phase 2 Amendments" and "Housekeeping Amendments".  According to the CSA, the Custody Amendments are intended to:

  • Strengthen the Canadian client asset protection regime by enhancing custody requirements applicable to registered firms that are not members of the Investment Industry Regulatory Organization of Canada (IIROC) or the Mutual Fund Dealers Association of Canada (MFDA) (collectively, Non-SRO Firms). IIROC member firms and MFDA member firms will comply with the custodial regimes of IIROC or the MFDA;
  • Impose detailed self-custody restrictions and qualified custodian requirements for client and non-prospectus qualified investment funds and address other potential intermediary risks when Non-SRO Firms are involved in the custody of client assets;
  • Enhance due diligence and disclosure practices regarding client custodial arrangements; and
  • Codify existing custodial best practices of Non-SRO Firms.

The remaining Amendments:

  • Clarify, as noted above, the activities that may be conducted by EMDs in respect of trades in prospectus-qualified securities;
  • Make permanent certain temporary relief granted by the CSA in May 2015 relating to the requirements for client reporting (the CRM2 Requirements) and also add guidance to 31-103CP regarding the CRM2 Requirements;
  • Incorporate other changes to NI 31-103 of a minor housekeeping nature; and
  • Set out specific guidance on client reporting requirements for firms that are only registered as EMDs.

The EMD trading ban stands in contrast to the recent trend toward an expanded exempt market through the introduction of a number of new prospectus exemptions as well as an exemption granted under the Amendments to allow advisers to trade in the securities of investment funds (including, as is the case today, those distributed under a prospectus) if the adviser or an affiliate of the adviser advises and manages the investment fund and certain conditions are met. The ban also seems out of synch with the MFDA's initiative to allow members to sell exchange-traded ETFs that qualify as mutual funds, subject to meeting proficiency requirements (MFDA Policy No. 8) that came into effect July 20, 2017. By creating greater access to ETFs, the MFDA seems to be fostering greater competition and consumer choice.

Custody Amendments

The Custody Amendments permit the use of multiple custodians to directly hold assets of a client or investment fund of a registered firm and allow for the use of a "foreign custodian" meeting the prescribed requirements of NI 31-103 where a reasonable person would conclude that using the "foreign custodian" is more beneficial to the client or investment fund than using a "Canadian custodian".  The CSA advise that the rules are not meant to replicate the custodial requirements in other areas of securities legislation, including the requirement under National Instrument 81-102 – Investment Funds that, except in very limited circumstances, portfolio assets of prospectus-qualified investment funds must be held with a single Canadian custodian and cannot be held with a foreign custodian directly. Prospectus-qualified investment funds may only use foreign sub-custodians under the custodianship of a single Canadian custodian.

The Custody Amendments and related guidance also:

  • Introduce more detailed client relationship disclosure information regarding the location and the manner in which client assets are held;
  • Clarify the regime applicable to assets other than client cash and securities;
  • Address the use of omnibus accounts by Non-SRO Firms; and
  • Provide for certain limited exceptions in the case of book entry securities recorded in the name of the client or investment fund; cash and securities held for non-individual "permitted clients" (subject to written acknowledgement); and mortgages and customer collateral subject to prescribed custodial regimes.

Significantly, the Custody Amendments do not provide for any rule-based exemption that would carve out non-Canadian clients of non-resident registered firms from the application of the Custody Amendments.  The CSA, however, note that they will consider granting exemptive relief on a case-by-case basis.

Future Custody Amendments

The CSA advise that future proposals to revise the Custody Amendments (including the terminology and the exemptions) may follow as a consequence of the CSA's ongoing policy work in respect of both the modernization of investment fund product regulation under NI 81-102 and derivatives regulation.

Remedial Amendments to International Dealer Exemption

The Amendments also fix a technical gap in the international dealer exemption to clarify that the exemption also applies to secondary trades in debt securities denominated in currencies other than the Canadian dollar or originally offered primarily in a foreign jurisdiction where no Canadian prospectus has been issued.

Next Steps

The Amendments, other than the Custody Amendments, are expected to come into force on December 4, 2017. The Custody Amendments will come into force six months later, on June 4, 2018.  Canadian-registered EMDs should review their existing distribution practices to ensure timely compliance with these new business restrictions by year-end.  Non-SRO Firms should also re-examine their existing custodial arrangements and begin the process of mapping out required changes to their custodial practices and related compliance procedures.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.