Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50884
LOOKING FOR CERTAINTY jurisdictions. But with actual implementation of the national securities regulator potentially two years away, lawyers say this is only one of many issues in securities law currently attracting their attention, as the regulatory landscape continues to evolve. Andrea Horton, senior counsel in the litigation group at the Royal Bank of Canada, says in-house counsel are currently looking at the proposed national securities regulator legislation, both from a legal standpoint but also from an implementation perspective. Th is includes how the authority might be structured in each province, and which issues are going to be national and which will be leſt to the province if a jurisdiction chooses not to opt in. "It's certainly something that we're alive to, and it's still very early days, but I think we're all trying to get a handle on what are the implications of the draſt legisla- tion, how is it similar and how is it diff erent to what we've experienced on the provincial level," she says. For public companies, there are similarities between the draſt national se- curities act and the current system of 13 provincial and territorial securities commissions, explains Anita Anand, an associate professor at the Univer- sity of Toronto Faculty of Law. "In terms of, for example, prospectus fi lings and off erings of securities, not much will change for public companies be- cause they, right now, have to fi le disclosure, and they will have to fi le the same disclosure even under a national securities act," says Anand. Th ere are, however, a few diff erences that may aff ect public companies directly or indirectly. For example, one of the new mandates of securities regu- lators is going to be to contribute to the integrity and stability of the fi nancial system. "Th is is a somewhat broad principle and it's not clear at the present time what this is going to mean in practice, but it may mean heightened disclosure from time to time," she says. In terms of enforcement, there are also some distinctions, says Anand. In particular, as criminal law is under federal jurisdiction, if the federal government is going to be regulating the securities mar- kets, it will have a host of new criminal law powers at its disposal with regard to enforcement. In July, as part of this transition, the Canadian Securities Transition Offi ce released its plan for establishing the Canadian Securities Regulatory Authority with a target launch date of July 1, 2012. Th e transition offi ce says the CSRA will operate as a Crown corporation and provide "a unifi ed Canadian voice and infl uence internationally," as a national body with an of- fi ce in each participating province. However, the debate seems far from over. Th e govern- ment has referred the question to the Supreme Court of Canada of whether the proposed Canadian securities act is within the legislative authority of Parliament "to provide legal certainty to the provinces, territories, and market participants." Th e court is set to hear the reference next April. Th e Quebec and Alberta governments oppose the plan, and have asked their respective provincial courts of appeal to rule on the constitutionality of the federal proposal. However, public companies' responses on this issue can also potentially diff er depending on which jurisdiction they fi nd themselves in or where they do business, say lawyers. "Certainly in some 20 • OCTOBER 2010 INHOUSE