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New Ontario securities law to reset regulatory balance

Investment Executive | James Langton | Nov 1, 2021

Rules - New Ontario securities law to reset regulatory balance

“Platform” legislation would grant the OSC broader rule-making power

On Oct. 12, the provincial government unveiled its proposed Capital Markets Act (CMA), which would replace existing legislation for both securities and derivatives. The new law would adopt many recommendations from the Capital Markets Modernization Taskforce, which delivered its final recommendations in January.

The Ontario government’s proposed legislation could reshape securities law and overhaul regulatory structures, resetting the balance between the underlying legislation and the rules crafted by the Ontario Securities Commission (OSC).

See:  Sources Say: Federal and provincial governments shutting down Cooperative Capital Markets Regulatory project

Modelled on work to develop the now-defunct Cooperative Capital Markets Regulatory System, the task force recommended — and the proposed legislation would implement — a shift to so-called “platform” legislation. That model sets out the basic provisions of the law and grants broad rule-making authority, while leaving detailed requirements to regulations.

The chief advantage of the platform approach is that it’s typically easier to change rules than to amend legislation, as rule changes can be crafted quickly and require only the government’s consent. Granting broad rule-making power to the OSC would enable the regulator to deal with novel issues that develop in the future but aren’t yet covered by securities law.

The platform approach could lead to more flexible, responsive regulation. Under Canada’s provincial system, however, the desire for harmonization can bog down local regulatory initiatives, and that still may happen under the new framework.

For example, the task force recommended that publicly traded companies be required to hold annual advisory shareholder votes on executive compensation. The CMA would give the OSC authority to require those votes. However, the rest of the Canadian Securities Administrators have rejected mandating advisory votes on executive pay, and the OSC would be unlikely to go it alone. Just because something can be more easily done via rule-making doesn’t mean it will be.

See:  CSA Responds to Ontario Capital Markets Modernization Taskforce Report: NCFA – The present system is simply not good enough

Nevertheless, investor advocate Ken Kivenko, president of Kenmar Associates, said he has “some real concerns” with the platform model. “This is not principles-based regulation or law because there are not sufficient principles in here to set the direction on regulatory policy, standards of conduct, licensing requirements [or] disclosure requirements,” he said. “It is more like a table of contents than a securities law.”

In Kivenko’s view, the legislation should at least include high-level requirements and principles that set a framework for the development of specific rules and regulations.

“The government should not just state what will be regulated and delegate complete authority to the OSC to perform that regulation. The government should also set out a direction on policy and the types of requirements and standards that must be in place,” Kivenko said. “To say we are uncomfortable with the proposed CMA would be a major understatement.”

The draft legislation would facilitate the restructuring of the OSC that the task force recommended. The CMA would establish a separate adjudicative body, divide the role of OSC chair and CEO, and revise the regulator’s mandate to add competition and capital formation as key objectives.

See:  Final Report: Ontario Capital Markets Modernization Committee Recommendations

The OSC’s proposed new authority would expand the regulator’s power to address emerging regulatory issues. For example, the proposed law would allow the OSC to designate cryptoassets as securities or derivatives, giving the OSC scope to continue developing regulation for an otherwise lawless sector.

The draft law also would prohibit false and misleading statements about public companies, enabling regulators to better tackle “pump and dump” and “short and distort” campaigns. The task force recommended changes in this area, given the increasing power of social media to spread false information and influence trading activity.

Other enforcement-related changes are included in the proposed CMA, including provisions that would enhance the OSC’s investigative powers and its ability to return ill-gotten gains to harmed investors. The maximum regulatory penalty would increase to $5 million and the maximum fine for securities offences would rise to $10 million. In addition, the CMA would enable automatic reciprocation of enforcement orders by other regulators.

The draft law also would enhance private enforcement.

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