Legal news and trends for Canadian in-house counsel and c-suite executives
Issue link: https://digital.canadianlawyermag.com/i/50884
Certainly in Alberta there's considerable concern that they will lose the benefi t that they feel they have right now of having a regulator that is close to them, that is easily accessible, that is understanding of their issues for the types of companies they're working with. HEATHER ZORDEL, Cassels Brock & Blackwell LLP jurisdictions, Quebec and Alberta, there's more trepidation with regard to this process. Certainly in Alberta there's considerable concern that they will lose the benefi t that they feel they have right now of having a regulator that is close to them, that is easily accessible, that is understanding of their issues for the types of companies they're working with," says Heather Zordel, a partner in the securities group at Cassels Brock & Blackwell LLP in Toronto and a member of the Expert Panel on Securities Regulation. She says part of the exercise with establishing a na- tional regulator is to give these stakeholders some comfort they will still have a high degree of service that is understanding of the issues in their area ensuring that the new organization maximizes the value of the expertise in diff erent areas, such as oil and gas. Peter Inglis, a lawyer with Bennett Jones LLP in Edmon- ton and chairman of the Canadian Bar Association's securities law section for Alberta North, says the regional headquarters question with the securities regulator is an issue that is com- ing up with public companies and in-house counsel. "Th e in- terest in Alberta would be that there should be — based on all of the same metrics that people have always looked at for the Canadian marketplace — that the second-most obvious place for a securities regulator to be, outside of Toronto, would be Calgary, and that any national securities regulation scheme that excludes the Alberta market would be [an] ill-advised structure," he says. Th ere could also potentially be some regional participation, either pro or con, based on the litigation developing in Alberta and at the federal level, he adds. "I would expect that there'd be some solicitation by issuers to participate either in the Alberta Court of Appeal application by the Alberta government or the Supreme Court reference that the federal government is likely to make," he says. Beginning in 2004, all provinces and territories except On- tario signed onto the passport system, which has, since 2008, enabled participants to clear a prospectus or obtain a discre- tionary exemption through a decision from the securities regu- lator in their home province or territory and have that decision apply in all other jurisdictions, according to the provincial-ter- ritorial securities initiative. "When you're in Quebec and you look at the passport system, it works pretty well and people are happy with it and so the view is kind of, well if it works, why fi x it?" says Daniel Desjardins, senior vice president and general counsel at Bombardier Inc. Zordel says while the passport system has been benefi cial, she considers it an interim step in the road towards a harmon- ized system. "What does that mean for in-house counsel? It means that fi nally, hopefully, the requests that many of them had across the country for an easier system to deal with in securities law, if they're public companies, will be addressed," she says. While more locally based companies may have more trepidation when it comes to a national regulator, she says internationally focused organizations want a simpler re- gime. "For public companies, while it may not be im- mediately obvious that there's improvements in process, but over a time they'll see that things should get a little easier to deal with because you'll have fewer diff erences in jurisdictions, you have to deal with fewer opportun- ities for diff erences in interpretation," she adds. Indeed, it is hoped that a national regulator could alleviate some multi-jurisdictional obstacles and in- crease effi ciency, says Bernard Pinsky, a partner at Clark Wilson LLP in Vancouver and chairman of its corporate fi nance and securities practice group. "It's always been a diffi culty saying, 'OK, where do we have to fi le, why do we have to fi le there, more fees for this jurisdiction, less fees for that jurisdiction, what do we have to think about,'" he says. "Anything that adds to that makes cli- ents concerned. Not only that they're going to miss something and get into trouble, but also it's fees generating for the commissions and they'd rather know that they've got one-stop shopping, I think. So I haven't had a sense from anybody that they feel they'd be better off with the partialization we've got now." Registration reform While the debate continues regarding a national regulator, registration reform is another related issue that over the last year has aff ected and continues to aff ect many public companies and their counsel. Th e reforms apply to INHOUSE OCTOBER 2010 • 21