What's Ahead? At a Glance outlines the key securities regulatory developments that will affect the investment management industry in Canada. The Investment Management Group of Borden Ladner Gervais LLP (BLG) prepares these outlines periodically, reporting on the current status of each initiative, as well as the expected next steps. We intend for these outlines to allow you to keep track of regulatory initiatives, as well as understand what may be coming next. Our more detailed newsletters and commentary are highlighted and you can click on the links provided to access our highlighted newsletters.
If you would like to discuss any of the initiatives listed in this What's Ahead? including what they may mean for your business, please contact your usual lawyer in BLG's Investment Management Group, the authors of this What's Ahead? or any of the leaders noted at the end of this Bulletin.
WHAT'S HAPPENED |
WHAT'S NEXT? |
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Canadian Securities Regulatory Authority |
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Government of Canada Moves to Protect Canadian Investors: Backgrounder, Fact Sheets and Proposed Canadian Securities Act Department of Finance Canada May 2010. Transition Plan For the Canadian Securities Regulatory Authority Canadian Securities Transition Office July 2010. |
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Canadian Securities Transition Office (CSTO) commenced work in July 2009 with a mandate from the Government of Canada to lead and manage the transition from the current system of provincial/territorial regulation to a single, national securities regulator. The goal of the Government of Canada and the Canadian Securities Transition Office is to have the Canadian Securities Regulatory Authority operative by July 1, 2012. The Government of Canada referred to the Supreme Court of Canada the question of whether the proposed Canadian Securities Act is within the constitutional jurisdiction of parliament. The Supreme Court of Canada heard submissions on this question in April 2011 and has reserved its decision. The S.C.C. decision is expected by first quarter 2012. |
International Financial Reporting Standards (IFRS) – for Investment Funds |
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Proposed amendments to National Instrument 81-106 Investment Fund Continuous Disclosure October 2009. CSA Staff Notice 81-320 (revised) Update on International Financial Reporting Standards for Investment Funds March 2011. |
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IFRS amendments to NI 81-106 on hold due to the Canadian Accounting Standards Board decision to defer IFRS for investment funds until January 1, 2013. CSA also waiting until the consultation of the International Accounting Standards Board exposure draft on investment entities is completed. Comments on the IASB's Investment Entities Exposure Draft ED/2011/4 are due by January 5, 2012. |
International Financial Reporting Standards (IFRS) – for Registrants |
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(Final) IFRS amendments to National Instrument 31-103 Registration Requirements and Exemptions and National Instrument 52-107 Acceptable Accounting Principles and Auditing Standards October 2010. |
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NI 52-107 and IFRS related amendments to NI 31-103 effective on January 1, 2011. All registrants are required to prepare and deliver to their applicable principal regulator annual audited (and in some cases, interim unaudited) financial statements that have been prepared using IFRS for financial years beginning on or after January 1, 2011. Non-Canadian-based registrants may use other accounting standards in certain cases. Statements must be prepared on a non-consolidated basis. |
Registrant Regulation – General |
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CSA Staff Notice 31-317 (revised) Reporting Obligations Related to Terrorist Financing July 2010. (Final) Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations and related instruments ("first-year" amendments) April 2011. OSC Staff Notice 34-701 Publication of Decisions of the Director on Registration Matters under Part XI of the Securities Act (Ontario) ("Opportunities to be Heard") May 2011. Proposed Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations and related instruments (re: cost disclosure and performance reporting) June 2011. CSA Staff Notice 31-326 Outside Business Activities July 2011. OSC Staff Notice 33-736 Annual Summary Report for Dealers, Advisers and Investment Fund Managers September 2011. CSA Staff Notice 31-329 Omnibus/Blanket Orders exempting registrants from certain provisions of NI 31-103 September 2011. CSA Focused Review Questions Relationship Disclosure Practices November 2011. |
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Various reports from the CSA and the OSC staff highlight compliance issues significant to registered firms. CSA staff surveying registered PMs and EMDs about compliance with relationship disclosure requirements. Additional guidance can be expected once survey results reviewed by CSA staff. "First-year" amendments to NI 31-103 and related instruments came into force on July 11, 2011. Note in particular that certain transition periods were extended to later dates; for example, the requirements regarding dispute resolution were extended to September 28, 2012. Comment period on the "cost disclosure and performance reporting" proposals published in June 2011 ended September 23, 2011. Comments, including comments from Borden Ladner Gervais LLP, being considered by the CSA and available on the OSC website. September 2011 omnibus/blanket orders include dealer registration relief for Canadian financial institutions trading in short-term debt. This latter relief expires September 28, 2014. |
Registrant Regulation – IIROC Members |
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IIROC Notice Request for Comments (republication) 11-0005 Proposals to implement the core principles of the Client Relationship Model January 2011. IIROC Notice Request for Comments 11-0061 Plain language rule re-write project February 2011. IIROC Notice Request for Comments 11-0269 Proposed guidance on "Insider" Order Marking September 2011. CSA Staff Notice 31-329 Omnibus/Blanket Orders exempting registrants from certain provisions of NI 31-103 September 2011. (Final) Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations November 2011. IIROC Rules Notice Guidance Note 11-0349 Guidelines for the review, supervision and retention of advertisements, sales literature and correspondence December 2011. |
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IIROC's proposal for Rule amendments to implement client relationship requirements in response to NI 31-103 is being considered by the CSA for final approval. IIROC members are exempt from relationship disclosure information (RDI) requirement in NI 31-103 until IIROC Rules concerning RDI are implemented (exemption expires December 31, 2013). Other proposed amendments to IIROC Rules have also been published for comment to make IIROC Rules more consistent with NI 31-103. IIROC has issued guidance and proposed guidance on various compliance issues significant to its members. IIROC has undertaken a project to rewrite its Rules in plain language primarily to make the Rules more clear, concise and organized, although some substantive changes will also be made. Amendments to NI 31-103 to provide for additional exemptions for IIROC members expected to come into force on February 28, 2012. |
Registrant Regulation – MFDA Members |
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Consultation Paper on the Harmonization of Mutual Fund Distribution Regulations Autorité des marchés financiers October 2010. Consultation Paper on the Use of Third Party Back-Office Service Providers MFDA Bulletin #0484-P June 2011. CSA Staff Notice 31-329 Omnibus/Blanket Orders exempting registrants from certain provisions of NI 31-103 September 2011. (Final) Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations November 2011. MFDA Bulletin #0505-P End of Transition Periods December 2011. MFDA Bulletin #0507-P (Final) Amendments to MFDA Rule 5.3 (Client Reporting) and Form 1 December 2011. MFDA Bulletin #0508-P MFDA Rule 5.3.5 (Performance Reporting): Suspension of June 2012 Implementation December 2011. |
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Comment period on the AMF consultation paper ended November 30, 2010. AMF later announced that it is working towards a later deadline than September 28, 2011 to achieve harmonization. Comment period on MFDA consultation period concerning issues arising from the use of third party service providers ended on September 30, 2011. MFDA members exempted from relationship disclosure information (RDI) requirement in NI 31-103 provided MFDA members comply with MFDA RDI rules as and when implemented. This exemption expires December 31, 2013. Mutual fund dealers in Québec must provide RDI to new clients immediately and to existing clients by December 31, 2013. Amendments to NI 31-103 to provide for additional exemptions for MFDA members expected to come into force on February 28, 2012. Amendments to MFDA Rule 2.2.1 ("Know-your-client"), Rule 2.2.4 (Updating Client Information) and Policy No. 2 (Minimum Standards for Account Supervision) became effective on December 3, 2011. MFDA Rule amendments have been finalized to implement certain client relationship model requirements specifically, quarterly client reporting obligations for MFDA members. CSA approval required for certain amendments. MFDA has suspended the implementation of MFDA Rule 5.3.5 on performance reporting pending harmonization with performance reporting standards under NI 31-103 once adopted. |
Registrant Regulation – Exempt Market Dealers |
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CSA Staff Notice 33-315 Suitability Obligation and Know Your Product September 2009. CSA Staff Notice 31-323 Guidance Relating to the Registration Obligations of Mortgage Investment Entities February 2011. OSC Staff Notice 33-735 Sale of Exempt Securities to Non-Accredited Investors May 2011. CSA Staff Notice 31-324 Exempt Market Dealers and Account Statement Requirements in NI 31-103 June 2011. CSA Survey – Exempt Market Dealer Activities and Business Models November 2011.
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Various reports from the CSA and the OSC staff intended to highlight compliance issues significant to firms registered as EMDs. The 2011 annual report of the OSC staff referred to above provides additional discussion about issues specific to EMDs. CSA staff surveying registered EMDs about their business models and activities. This survey is linked to CSA Staff Notice 31-324 and responses are due by December 19, 2011. Additional guidance can be expected once survey results reviewed by CSA staff. |
Registrant Regulation – Portfolio Managers |
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10 Most Common Deficiencies Among Portfolio Managers OSC October 2008. CSA Staff Notice 33-315 Suitability Obligation and Know Your Product September 2009. CSA Staff Notice 31-325 Marketing Practices of Portfolio Managers July 2011.
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CSA staff report on marketing practices of portfolio managers updates and replaces earlier 2007 report from the OSC staff on the same topic. The 2011 annual report of the OSC staff referred to above provides additional discussion about issues specific to PMs. |
Registrant Regulation – Investment Fund Managers |
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OSC Staff Notice 11-760 Report on Mutual Fund Sales Practices under Part 5 of National Instrument 81-105 Mutual Fund Sales Practices April 2007. OSC Staff Notice 11-763 A Focused Review of the Securities Valuation and Expense Allocation Practices of Fund Managers July 2008. Proposed Amendments to NI 31-103 Registration Requirements and Exemptions – Registration of International and Certain Domestic Investment Fund Managers October 2010. Notice 31-320 Additional Request for Comment by the OSC and the AMF Proposed Exemptions from Investment Fund Manager Registration Requirement for International and Certain Domestic Investment Fund Managers October 2010. |
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OSC staff notices outline common compliance issues for fund managers in connection with management and distribution of investment funds. The 2011 annual report of the OSC staff referred to above provides additional discussion about issues specific to IFMs. Comment period on the IFM-related amendments to NI 31-103 ended on January 13, 2011. Comments, including comments from Borden Ladner Gervais LLP, being considered by the CSA and available on the OSC website. Temporary exemptions regarding registration in jurisdictions other than the firm's principal jurisdiction (or at all, for international IFMs) extended to September 28, 2012. |
Point of Sale Disclosure for Mutual Funds |
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CSA Staff Notice 81-319 Status Report on the Implementation of Point of Sale Disclosure for Mutual Funds June 2010. (Final) Amendments to National Instrument 81-101 Mutual Fund Prospectus Disclosure and related policy and forms and related instruments. October 2010. CSA Staff Notice 81-321 Early Use of the Fund Facts to Satisfy Prospectus Delivery Requirements. February 2011. Proposed Amendments to National Instrument 81-101 Mutual Fund Prospectus Disclosure and related policy and forms and related instruments. August 2011. |
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Amendments to National Instrument 81-101 requiring fund facts documents for mutual funds effective January 3, 2011. All funds were required to have fund facts documents for each series or class available and posted on SEDAR and websites by July 8, 2011. Comment period on CSA proposals relating to delivery of fund facts documents post-trade ended November 10, 2011. Comments, including those of Borden Ladner Gervais LLP being considered by CSA and available on OSC website. |
Modernization of Investment Fund Rules |
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Proposed amendments to National Instrument 81-102 Mutual Funds and National Instrument 81-101 Mutual Fund Prospectus Disclosure and related policies. June 2010. CSA Staff Notice 81-322 Status Report on the Implementation of Investment Fund Product Regulation Project and Request for Comment on Phase 2 Proposals. May 2011. |
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Comment period on proposed amendments to NI 81-102 and NI 81-101 which relate to "modernization" of the rules related to ETFs, money market funds, short selling and fund of funds, among other things, ended on September 24, 2010. Comment letters, including comment letter of Borden Ladner Gervais LLP, available on the OSC website. Final amendments expected to be published by year-end 2011. Comment period on proposals for Phase 2 of the investment fund modernization project ended July 25, 2011. Comment letters, including comment letter of Borden Ladner Gervais LLP, available on the OSC website. Development of a proposed rule to regulate closed-end funds expected to occur during 2012. |
Investment Fund Governance |
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OSC Staff Notice 81-713 Focussed Disclosure Review National Instrument 81-107 Independent Review Committee for Investment Funds March 2011. |
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OSC Staff Notice describes the results of OSC staff's review of IRC and NI 81-107 related disclosure and makes suggestions for improvements. |
Asset Backed Commercial Paper and Investment Funds |
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Securities Regulatory Proposals Stemming from the 2007/08 Credit Market Turmoil and its Effect on the ABCP Market in Canada October 2008. |
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Comment period on consultation paper ended February 16, 2009. CSA considering comments provided on various questions posed in consultation paper, including those related to investments by mutual funds, and specifically money market funds, in ABCP. Proposed rule amendments to NI 81-102 published for comment in June 2010 resulted from this consultation paper. |
Securitized Products |
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Proposed National Instrument 41-103 Supplementary Prospectus Disclosure Requirements for Securitized Products, Proposed National Instrument 51-106 Continuous Disclosure Requirements for Securitized Products and Proposed Amendments to National Instrument 45-106 Prospectus and Registration Exemptions. April 2011. |
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CSA propose a specific securitized products regime, including new restrictions on distribution in the exempt marketplace. Comment period ended August 31, 2011, comments being considered by the CSA and available on OSC website. |
Scholarship Plan Regulation |
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Proposed Amendments to National Instrument 41-101 General Prospectus Requirements, Form 41-101F2 and related amendments (second request for comments). November 2011. |
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Comment period on the revised proposed amendments to National Instrument 41-101 to implement new prospectus disclosure for scholarship plans ends January 24, 2012. |
Hedge Funds and other Alternative Investment Products |
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OSC Staff Notice 33-733 Report on Focused Reviews of Investment Funds, September 2008 – September 2009.January 2010. |
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OSC Staff Notice reports on findings from focused reviews of money market funds, hedge funds and structured products (nonredeemable investment funds) conducted from September 2008 – September 2009. See also the discussion in the OSC's 2011 Compliance and Registrant Regulation Branch report (referred to above) regarding the linkages between systemic risk and hedge funds. |
Compliance Issues for Publicly Offered Investment Funds |
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OSC Staff Notice 33-733 Report on Focused Reviews of Investment Funds, September 2008 – September 2009. January 2010. OSC Staff Notice 81-710 Approvals for Change in Control of a Mutual Fund Manager and Change of a Mutual Fund Manager under National Instrument 81-102 Mutual Funds May 2010. OSC Staff Notice 81-711 Closed-End Investment Fund Conversions to Open-End Mutual Funds October 2010. OSC Staff Notice 81-715 Cross-Listings by Foreign Exchange Traded Funds August 2011. OSC Staff Notice 81-716 Summary Report for Investment Fund Issuers November 2011. |
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Various reports from the OSC staff highlight compliance issues significant to publicly offered investment funds. Various editions of the OSC's Investment Funds Branch Practitioner are also available on the OSC website and point out compliance and other issues noted by OSC staff. OSC Staff Notice 81-716 describes the OSC staff's work to review portfolio holdings of investment funds to ensure appropriate disclosure. This review is being carried out via an extensive continuous disclosure review that commenced in the fall 2011. Additional information regarding fund portfolios is being collected and guidance can be expected once the results of the review are considered. |
Prospectus Disclosure for Investment Funds |
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OSC Staff Notice 81-714 Compliance with Form 41-101F2 – Information Required in an Investment Fund Prospectus March 2011. Proposed Amendments to National Instrument 41-101 General Prospectus Requirements and related instruments, including National Instrument 81-101 Prospectus Disclosure for Mutual Funds July 2011. |
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Comment period on proposed amendments to NI 41-101 and NI 81-101 ended October 14, 2011. Comments being considered by CSA and available on OSC website. |
Continuous Disclosure for Investment Funds |
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OSC Staff Notice 33-733 Report on Focused Review of Investment Funds, September 2008 – September 2009 January 2010. AMF Activity Report for the Continuous Disclosure Review Program – Companies – Investment Funds December 2011. |
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OSC and AMF staff reports outline common deficiencies with investment fund continuous disclosure and highlight staff's continued focus on continuous disclosure reviews. OSC Staff Notice 81-716 (referred to above) describes the OSC staff's work to review portfolio holdings of investment funds to ensure appropriate disclosure. This review is being carried out via an extensive continuous disclosure review that commenced in the fall 2011. Additional information regarding fund portfolios is being collected and guidance can be expected once the results of the review are considered. |
Use of Prospectus Exemptions – Exempt Market-Place |
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BCN 2011/26 Adoption of Form 45-106F6 British Columbia Report of Exempt Distribution October 2011. CSA Staff Consultation Note 45-401 Review of Minimum Amount and Accredited Investor Exemptions Public Consultation CSA November 2011. |
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Comment period on Staff Consultation Note about the use of the minimum amount prospectus exemption and the accredited investor prospectus exemption contained in National Instrument 45-106 Prospectus and Registration Exemptions ends February 29, 2012. |
Capital Accumulation Plans and Mutual Funds |
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Joint Forum of Financial Market Regulators Guidelines for Capital Accumulation Plans May 2004. Amendments to National Instrument 45-106 Prospectus and Registration Exemptions and Adoption of Local Prospectus and Registration Exemptions for Certain Capital Accumulation Plans October 2005. |
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All Canadian regulators, other than the OSC and the Québec regulator, granted "blanket" prospectus and registration exemptions to allow mutual funds to be used as investment options for CAPs. Comment period on proposed amendments to NI 45-106 ended January 19, 2006. Comment letters, including comment letter of Borden Ladner Gervais LLP, being considered by CSA. |
Insider Reporting and Early Warning Reports |
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National Instrument 55-104 Insider Reporting Requirements and Exemptions, Companion Policy and Related Consequential Amendments, including to National Instrument 62-103 The Early Warning System and Related Take Over Bid and Insider Reporting Issues. January 2010. |
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National Instrument 55-104 and related amendments came into force on April 30, 2010. The accelerated filing deadline (from 10 to 5 days) for insider reports became effective on November 1, 2010. |
Beneficial Owners and Meetings |
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OSC Staff Notice 54-701 Regulatory Developments Regarding Shareholder Democracy Issues January 2011. Proposed amendments to National Instrument 54-101 Communication with Beneficial Owners of Securities of a Reporting Issuer and Companion Policy 54-101CP, National Instrument 51-102 Continuous Disclosure Obligations and its related forms and Companion Policy (second request for comments) June 2011. |
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Comment period on OSC Staff Notice 54-701 ended March 31, 2011. Comments available on OSC website. The comment period on the revised proposed amendments to NI 54-101, which would introduce, among other things a "notice and access" regime for all meetings other than meetings for investment funds and enhanced disclosure regarding the beneficial owner voting process, ended August 16, 2011. CSA considering comments received which are available on the OSC website. |
Electronic Delivery of Documents |
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(Final) Amendments to National Policy 11-201 Delivery of Documents by Electronic Means – now renamed Electronic Delivery of Documents November 2011 |
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Revised National Policy 11-201 came into effect on November 18, 2011. The changes to NP 11-201 are not substantive, but primarily clarify and update the language used in the National Policy. |
Best Execution and Other Trading Rules |
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CSA/IIROC Joint Staff Notice 23-308 Update on Forum to Discuss CSA/IIROC Joint Consultation Paper 23-404 "Dark Pools, Dark Orders and Other Developments in Market Structure in Canada" and Next Steps. May 2010. OSC Staff Notice 21-704 Market Regulation Branch Annual Report 2010 October 2010. Joint CSA/IIROC Position Paper 23-405 Dark Liquidity in the Canadian Market November 2010. Proposed Amendments to National Instrument 21-101 Marketplace Operation and National Instrument 23-101 Trading Rules March 2011. Proposed National Instrument 23-103 Electronic Trading and Direct Electronic Access to Marketplaces April 2011. Joint CSA/IIROC Staff Notice 23-311 Regulatory Approach to Dark Liquidity in the Canadian Market July 2011. |
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Comment period on proposed amendments to NI 21-101 and 23-101 ended June 16, 2011 and comment period on proposed NI 23-103 ended July 8, 2011. Comments being considered by the CSA and available on OSC website. IIROC and the CSA have proposed amendments to universal market integrity rules (UMIR) and other trading rules concerning "dark liquidity" on Canadian equity marketplaces. |
Trade-Matching |
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Revisions to CSA Staff Notice 24-305 Frequently Asked Questions About National Instrument 24-101 – Institutional Trade Matching and Settlement and Related Companion Policy May 2011. |
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CSA have provided guidance on compliance with NI 24-101 and regulatory expectations regarding same. |
Regulation of Derivatives |
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Final Report Ontario Commodity Futures Act Advisory Committee January 2007. Regulatory Analysis of Contracts for Differences (CFDs) Investment Dealers Association of Canada June 2007. Bill 77 Derivatives Act (Québec) June 2008.The Derivatives Regulation Autorité des marchés financiers December 2008. Policy Statements respecting Accredited Counter-parties, Hybrid Products and Self-Certification Autorité des marchés financiers January 2009. OSC Staff Notice 91-702 Offerings of Contracts for Differences and Foreign Exchange Contracts to Investors in Ontario October 2009. CSA Consultation Paper 91-401 Over-the-Counter Derivatives Regulation in Canada CSA Derivatives Committee November 2010. CSA Consultation Paper 91-402 Derivatives: Trade Repositories June 2011. CSA Consultation Paper 91-403 Derivatives: Surveillance and Enforcement November 2011. |
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Derivatives Act (Québec) and related regulations and policies came into force as of February 1, 2009. Comment periods on CSA Derivatives Committee's first and second consultation papers ended January 14, 2011 and September 12, 2011, respectively. Comment period on CSA's third consultation paper ends January 25, 2012. Comments available on OSC website. The three consultation papers released to date are three of eight consultation papers to be published by the CSA on the Canadian derivatives regime. Other consultation papers expected to be published in 2011/2012. |
This Fall 2011 edition of What's Ahead? is current as of December 8, 2011.
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.