BCN 2002/22 - Republication for Comment of Proposed Multilateral Instrument 33-109 and Companion Policy 33-109CP Registration Information [BCN - Rescinded]

Introduction

The members of the Canadian Securities Administrators (CSA) are republishing for comment proposed Multilateral Instrument 33-109 and Companion Policy 33-109CP Registration Information.

The proposed multilateral instrument is expected to be adopted as a rule in each of British Columbia, Alberta, Manitoba, Ontario and Nova Scotia, as a commission regulation in Saskatchewan and as a policy in all other jurisdictions represented by the CSA other than Québec. The proposed multilateral instrument and companion policy are not being proposed for adoption at this time by the Commission des valeurs mobilières du Québec (the “CVMQ”).

Purpose

The purpose of the proposed instrument is to consolidate and harmonize requirements regarding the initial submission of registration information and the updating of that information.

Background

On December 14, 2001, the CSA published for comment earlier drafts of the proposed instrument and companion policy.  During the comment period, we received 7 submissions.  A summary of these comments, together with our responses, is contained in Appendix A to this notice.  After reviewing the comments and further considering the instrument and companion policy, we are proposing a number of amendments to the 2001 drafts.

For additional background information on the proposed instrument and companion policy as well as a detailed summary of the contents of the 2001 drafts, please refer to the notice that was published with those drafts.

Summary of Changes

This section describes the substantive changes made to the proposed instrument and companion policy since the 2001 drafts were published for comment.

The definition of “business location” has been removed from the proposed instrument and guidance with respect to its meaning has been added to the companion policy.  The reason for this change is that it would be preferable to provide guidance in the companion policy on what is generally a well-understood term rather than attempt to define the term precisely in the instrument.

The definition of “non-registered individual” has been amended to include branch managers.  This is to ensure that Forms 33-109F4 will be submitted for branch managers in jurisdictions where the individual is not required to be a registered individual.

In subsection 6.1(1) of the proposed instrument, the phrase “shall exercise due diligence” has been replaced with “must make reasonable efforts”.  The reason for this change is to describe the obligation on firms in plain language.

Subsection 6.1(4) of the 2001 draft has been removed.  This subsection specified where records keep under Part 6 were to be located.  Given that firms are otherwise required to maintain these records and ensure they are readily accessible, we agreed with commentators that mandating the location of the records is not necessary.

The proposed instrument is scheduled to come into force on November 20, 2002, instead of September 1, 2002 as was proposed in the 2001 draft.  This delay is to accommodate a second comment period.  Given this delay the data transfer date (defined in Part 8 of the proposed instrument) is scheduled to occur on November 4, 2002.

Several non-substantive changes have been made to the forms in response to comments made regarding the 2001 draft.  These changes and the reasons for them are set out in Appendix A.

The 2001 draft of the companion policy contained a list of suggested enquiries that firms should make in order to fulfill their reasonable efforts obligation under subsection 6.1(1) of the proposed instrument.  This list has been removed.  The reason for this change is that what constitutes a reasonable effort will depend on the situation and on changing industry standards.

Request for Comments

Interested parties are encouraged to make comments on the proposed instrument and companion policy. Please submit your comments in writing on or before August 15, 2002.

Address your submission to the CSA member commissions listed below:

British Columbia Securities Commission
Alberta Securities Commission
Saskatchewan Securities Commission
The Manitoba Securities Commission
Ontario Securities Commission
Office of the Administrator, New Brunswick
Registrar of Securities, Prince Edward Island
Nova Scotia Securities Commission
Securities Commission of Newfoundland
Registrar of Securities, Northwest Territories
Registrar of Securities, Nunavut
Registrar of Securities, Yukon Territory

Deliver your comments only to the following address:

c/o John Stevenson, Secretary
Ontario Securities Commission
20 Queen Street West
Suite 800, Box 55
Toronto, Ontario  M5H 3S8
jstevenson@osc.gov.on.ca

A diskette containing the submissions (in DOS or Windows format, preferably WordPerfect) should also be submitted.  As securities legislation in certain provinces requires a summary of written comments received during the comment period be published, confidentiality of submissions cannot be maintained.

Questions

Please refer your questions to any of:

Dirk de Lint
Legal Counsel
Ontario Securities Commission
(416) 593-8090
ddelint@osc.gov.on.ca

Kathleen Blevins
Legal Counsel
Alberta Securities Commission
(403) 297-3308
kathleen.blevins@seccom.ab.ca

Anthony Wong
Senior Legal Counsel, Legal and Market Initiatives
British Columbia Securities Commission
(604) 899-6777
awong@bcsc.bc.ca

The text of the proposed instrument and companion policy follow.

June 14, 2002

Douglas M. Hyndman
Chair

Ref: BCN 2001/82
MI 33-109
CP 33-109
Form 33-109F4

This Notice may refer to other documents. These documents can be found at the B.C. Securities Commission public website at www.bcsc.bc.ca in the Commission Documents database or the Historical Documents database.