B.C. Securities Commission Gains New Powers
On July 17, 2023, the B.C. Securities Commission gained new powers through a package of legislative amendments that aim to strengthen the Commission’s enforcement powers, expand the Commission’s rule-making authority, and help ensure that British Columbia’s securities regulations remain consistent with other provinces’ regulations.
- New power to make market conduct orders for non-compliance with a summons or demand. The amendments give the Commission and the Executive Director the power, after providing an opportunity to be heard, to make certain market conduct orders (e.g., cease-trade orders, registration bans, director and officer bans) if a person has failed to comply with a summons or document production demand. Before, the Commission had to apply to the B.C. Supreme Court and complete a full hearing to obtain these orders. Now, the Commission can use its own process—without a full hearing—to impose swifter consequences.
- New power to order administrative penalties for non-compliance with a summons or demand. The amendments give the Commission the power, after a hearing, to order an administrative penalty of up to $1 million if a person has failed to comply with a summons or demand. The Commission may exercise this power not only against respondents who fail to comply, but also against witnesses who fail to comply. Elsewhere in Canada, securities commissions must generally commence contempt proceedings in court to obtain any sanction for such non-compliance.
- New power to seek compliance orders in connection with criminal misconduct. The amendments give the Commission the power to seek court-imposed compliance orders (e.g., orders for payment of restitution or damages) if a person has been convicted of a securities or derivatives offence under the Criminal Code. This new power is intended to help improve outcomes for victims.
- New power to impose continuous disclosure obligations. The amendments give the Commission the power to make rules imposing continuous disclosure obligations on all issuers, not just reporting issuers. This enables the Commission to impose these obligations on issuers such as investment funds. Most other Canadian jurisdictions already impose limited continuous disclosure obligations (primarily financial disclosure) on certain types of investment funds.
- New power to adopt an access regime for prospectuses. The amendments give the Commission the power to adopt a regime requiring issuers and dealers to provide access to prospectuses, rather than deliver prospectuses. The amendments also enable investors to commence an action in court if access is not provided. These amendments are intended to reduce the burden associated with the existing delivery requirement. The Commission is working with other Canadian securities regulators to develop a harmonized national rule for implementing an access regime.
- New power to make rules regulating auditors of registrants. The amendments give the Commission the power to make rules regulating auditors of registrants. This power enables the Commission to require auditors of registrants to meet specified standards (e.g., to be members of the Canadian Public Accountability Board), supplementing the Commission’s existing powers to regulate auditors of reporting issuers.
- New provisions regarding pension-derived funds. The amendments state that certain pension-derived funds are not exempt from enforcement processes arising from orders made under the Securities Act. These amendments respond to a recent B.C. Court of Appeal decision identifying restrictions on the Commission’s ability to collect funds from registered investment accounts held by those who have breached securities laws.
The Commission has some of the strongest enforcement and collection powers of any securities regulator in Canada. These amendments further strengthen those powers and aim to promote greater harmony among securities laws across Canada. For more information on the Commission’s powers or other securities law issues in Canada, contact a member of our Securities Litigation Group.