Securities Law

BCN 2004/30 - CSA Notice - Canadian Securities Administrators' Uniform Securities Transfer Act Task Force [BCN - Lapsed]

Published Date: 2004-06-04
Effective Date: 2012-07-03
The CSA Task Force has published for comment a consultative draft of the Uniform Securities Transfer Act (USTA). The proposed provincial Act will provide a sound legal foundation for the transfer and holding of securities in the modern securities market place. In addition, it will provide uniform legislation for Canada that is harmonized with existing similar legislation in the United States. The consultative draft USTA and related material is on the website of the Ontario Securities Commission at www.osc.gov.on.ca.

We attach a notice from the CSA Task Force dated May 28, 2004.


June 4, 2004

Douglas M. Hyndman
Chair


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be found at the B.C. Securities Commission public website at www.bcsc.bc.ca in the Commission Documents database or the Historical Documents database.




Canadian Securities Administrators'
Uniform Securities Transfer ActTask Force

Invitation for Comments Notice

The Canadian Securities Administrators' (CSA) Uniform Securities Transfer Act Task Force (Task Force) is pleased to release for public comment a revised consultative draft of a proposed provincial Uniform Securities Transfer Act (USTA) in both official languages. An earlier English-language consultative draft USTA and related material were released for public comment August 1, 2003.

The USTA project is distinct from the CSA's Uniform Securities Legislation (USL) project. The proposed USTA is not securities regulatory law.

The USTA is commercial property-transfer law, governing the transfer and holding of securities and interests in securities (sometimes called securities settlement rules). The USTA requires conforming amendments to the common-law provincial Personal Property Security Acts (PPSAs) that govern the use of securities as loan collateral, commonly referred to as pledges. It also removes securities settlement rules currently contained in provincial Business Corporations Acts (BCAs).

Current Canadian law in this area is out of date. It fails to deal adequately with modern securities market practices, particularly the holding and trading of securities through multiple tiers of intermediaries. Implementation of the USTA will provide a sound legal foundation for existing practices and support the continuing evolution of market practices in the future. It is essential that Canadian legislation in this area be uniform within Canada and harmonized with existing similar legislation in the United States.

Securities market participants and Canadian financial services industries as a whole urgently need modern uniform legislation like the USTA to improve the efficiency and legal soundness of the Canadian securities settlement system. The Canadian securities settlement system handles an enormous quantity and value of transactions on a daily basis. Issuers, investors and financial institutions rely heavily on the system. It is vital to the continued growth and evolution of the Canadian capital markets -- and to their competitiveness with international markets -- that the system be supported by a modern legal foundation that produces predictable results, especially in situations involving cross-border transactions.

The CSA Task Force is leading this project at the request of the CSA Chairs and the Uniform Law Conference of Canada (ULCC). The CSA Task Force's mandate is twofold:

1. To develop a consultative draft USTA, including consequential changes to PPSAs and BCAs, that is as uniform and harmonious as possible with Revised Article 8 (Rev8) of the Uniform Commercial Code (UCC) in the United States and corresponding provisions of UCC Revised Article 9.

2. To promote the uniform implementation of the USTA in each province and territory. This assumes uniformity in the common law provinces and territories without amendment and as close-to-uniformity as possible in Québec having regard to Québec's unique Civil Code requirements. The Task Force also intends to urge the Government of Canada to amend its legislation in this area to avoid duplication at the federal level and legal uncertainty in Canada.

The material being released with the consultative draft USTA includes proposed conforming amendments to Alberta and Ontario PPSAs and BCAs, detailed Comments on the USTA, tables of concordance, and a Consultation Paper. We highlight the following information:

a) The revised consultative draft USTA and related material being released with this Notice are not substantially different from the consultative draft USTA and material that were released August 1, 2003. The revisions to the consultative draft USTA and related material are listed and described in detail in the Consultation Paper (under Part 3, B.).

b) In response to input from certain interested stakeholders on an earlier draft of the USTA, the Task Force prepared Comments accompanying each definition and section of the USTA, based largely on the UCC Official Comment. Material in the Comments and Consultation Paper that is derived from the Rev8 Prefatory Note and UCC Official Comment is copyright by the American Law Institute (ALI) and the National Conference of Commissioners on Uniform State Laws. The material has been reproduced for consultation purposes under a limited license from the Permanent Editorial Board for the UCC (which reserves all rights to the UCC material). For any additional requests to duplicate UCC material, please visit the ALI website at www.ali.org. The ALI has indicated to the Task Force a willingness to consider a further license going beyond the consultation process. The Comments are intended to promote clarity and uniform interpretation of the USTA. We are particularly interested in receiving comments on the usefulness or content of the Comments. See the Consultation Paper (under Part 1, A., 5. and B., 6.).

c) The proposed conforming amendments to Alberta and Ontario PPSAs, which are critical to the policy objectives of the USTA, have been prepared in consultation with the ULCC PPSA Working Group. The Working Group and the Task Force have continued to consult and are now agreed on the proposed amendments. We are very grateful for the significant input and time devoted by members of the PPSA Working Group to this project.

d) Previous English-language drafts of the USTA were prepared by Alberta government legislative counsel, together with the Task Force, and with some input from British Columbia and Ontario legislative counsel. The Task Force's objective has been to ensure that, from a purely drafting perspective, the consultative draft USTA is not merely a "model Act" but is implementable in its current form. This consultative draft, although largely based on those previous drafts, includes a number of changes made by the Task Force and is not formal draft legislation of government legislative counsel. While the Task Force has had positive discussions with certain government officials about the uniform implementation of the USTA, no formal decision has yet been made by governments to introduce as legislation the USTA and conforming PPSA and BCA amendments. The consultative draft USTA and Comments and some of the related material are being published for comment in the French language for the first time. The Task Force retained a national law firm to oversee the preparation of the French-language version of these materials. The primary task of the law firm was to develop the key terminology, concepts and provisions of the USTA and PPSA conforming amendments in the French language in a way that would facilitate (a) uniformity of the French-language version of the USTA and the PPSA conforming amendments, and (b) harmonization among the French-language version of the USTA and PPSA conforming amendments and, to the extent possible, provisions in Québec civil law governing the same subject matter as the USTA and PPSA conforming amendments. See the Consultation Paper (under Part 1, A., 3.).

e) The Task Force is posting this Notice, together with the consultative draft USTA and related material in both languages in PDF format on the web-site of the Ontario Securities Commission (OSC) at www.osc.gov.on.ca. The Notice is also being posted on the web-site of the Alberta Securities Commission at www.albertasecurities.com. Other members of the CSA may post on their respective web-sites this Notice, together with the consultative draft USTA and related material or may, alternatively, post only this Notice inviting readers to review this material on the OSC web-site.

f) Depending on the comments received, the Task Force proposes to present a report on the USTA project and seek approval of the USTA at the Uniform Law Conference of Canada's annual meeting in Regina, Saskatchewan in August 2004. If approved by the ULCC, the Task Force proposes to seek immediate implementation of the USTA by the common law provinces, as requested by industry stakeholders, and encourage the Province of Québec to consider implementation as soon as possible in the context of the Québec civil law regime.

Invitation for comments

We invite you to participate in this project by reviewing the consultative draft USTA and related materials and providing your comments (in both paper and electronic formats) to the CSA Task Force. The comment period will run until July 30, 2004. Confidentiality of submissions received cannot be maintained.

The Task Force welcomes comments on any aspect of the draft USTA and related material. We specifically seek comments on the issues summarized in the Consultation Paper (under Part 3, B.).

Kindly address your comments to:

Maxime Paré, Chair, CSA USTA Task Force
Senior Legal Counsel, Market Regulation
Capital Markets
Ontario Securities Commission
20 Queen Street West
Suite 1900,
Toronto, Ontario, M5H 3S8
Phone: (416) 593-3650
Fax: (416) 593-8240
e-mail: mpare@osc.gov.on.ca

May 28, 2004.


The USTA Task Force:

Maxime Paré, Chair, CSA USTA Task Force
Senior Legal Counsel, Market Regulation
Capital Markets
Ontario Securities Commission
Phone: (416) 593-3650
Fax: (416) 593-8240
e-mail: mpare@osc.gov.on.ca

Eric Spink, Consultant,
Ontario Securities Commission
Phone: (780) 435-8711
Fax: (780) 435-2377
e-mail: spinklaw@shaw.ca

Nicolas Roy
Direction des affaires juridiques
Autorité des marchés financiers
Phone: 514-395-0337x 2531
Fax: 514-873-4130
e-mail: nicolas.roy@lautorite.qc.ca

Patricia Leeson, Senior Legal Counsel
Legal and Policy
Alberta Securities Commission
Phone: (403) 297 5222
Fax: (403) 297 6156
e-mail: patricia.leeson@seccom.ab.ca

Other CSA contacts:

Veronica Armstrong
Senior Policy Advisor
Legal and Market Initiatives
British Columbia Securities Commission
Phone: (604) 899-6738
Fax: (604) 899-6814
e-mail: varmstrong@bcsc.bc.ca

Élyse Turgeon,
Direction des affaires juridiques
Autorité des marchés financiers
Phone: (514) 395-0558 extension 2538
Toll free phone: 1-877-525-0337
e-mail: elyse.turgeon@lautorite.qc.ca