Canadian Securities Regulators Issue Sweeping 45-Day Filing Extensions Due to COVID-19

The Canadian Securities Administrators (CSA) published on March 23, 2020 temporary blanket relief for market participants granting a 45-day extension for certain periodic regulatory filings as a result of COVID-19.

The 45-day extension applies to certain filings normally required to be made on or before June 1, 2020 by issuers, investment funds, registrants, certain regulated entities, such as marketplaces, and designated rating organizations.

The CSA is implementing the relief through local blanket orders that are substantially harmonized across Canada. To benefit from the extension, market participants need to comply with the conditions set out in the blanket orders.

Highlights of the blanket orders issued by the Ontario Securities Commission (OSC) are summarized below.

Relief for Investment Funds

Any investment fund distributing securities under a prospectus with a lapse date that occurs during the period from March 23, 2020 to June 1, 2020, may add an additional 45 days to that lapse date in fulfilling the prospectus renewal requirement, subject to the terms and conditions listed in the blanket order.

An investment fund required to meet any of the following filing and/or delivery requirements during the period from March 23, 2020 to June 1, 2020 has an additional 45 days from the deadline otherwise applicable to make the filing or to send or deliver the document, subject to the terms and conditions listed in the blanket order:

  • delivery of annual custodian compliance reports (section 14.6(3) of NI 41-101 and section 6.7(3) of 81-102),
  • filing of annual mutual fund compliance report (section 12.1 of NI 81-102),
  • filing of annual financial statements and auditor’s report (section 2.2 of NI 81-106),
  • filing of interim financial statements (section 2.4 of NI 81-106),
  • notice of reliance on section 2.11 exemption to file financial statements (section 2.11 of NI 81-106),
  • filing of annual management report of fund performance and interim management report of fund performance (section 4.2 of NI 81-106),
  • filing of scholarship plan annual management report of fund performance (section 4.3 of NI 81-106),
  • delivery to securityholders of investment fund annual financial statements, interim financial statements, and the related management report on fund performance (section 5.1(2) of NI 81-106),
  • sending to each securityholder a request form that they may use to instruct the investment fund as to which of the documents the securityholder wishes to receive (section 5.2(5) of NI 81-106),
  • sending to each securityholder a request form the securityholder may use to instruct the investment fund as to which document listed in subsection 5.1(2) of NI 81-106 the securityholder wishes to receive (section 5.3(3) of NI 81-106),
  • sending a copy of the document listed in subsection 5.1(2) of NI 81-106 requested by securityholder (section 5.4 of NI 81-106),
  • filing by a labour sponsored or venture capital fund, where applicable, an independent valuation with the filing of its annual financial statements (section 8.2(c) of NI 81-106),
  • filing an annual information form on or before 90 days after the most recently completed financial year (section 9.3 of NI 81-106), and
  • preparing and filing an independent review committee report to securityholders of the investment fund (section 4.4 of NI 81-107).

Conditions for Relying on the Investment Fund Relief

Any investment fund relying on the blanket order must, as soon as reasonably practicable and in advance of its filing or delivery deadline, notify its regulator by email of the requirement(s) it is relying on this order to extend, and post a statement to that effect on its website, or the website of its investment fund manager.

Relief for Registrants

Registered dealers, advisers or investment fund managers are temporarily exempt from the delivery deadline for the following documents that are specified in the following provisions of NI 31-103, where the delivery deadline falls during the period from March 23, 2020 to June 1, 2020, provided that the person or company delivers the document to the regulator no later than 45 days after the delivery deadline for the document:

  • in the case of a registered dealer, its annual financial statements and its interim financial information, and its completed Form 31-103F1 Calculation of Excess Working Capital, as specified in subsection 12.12(1) and in subsection 12.12(2), respectively,
  • in the case of a registered adviser, its annual financial statements and its completed Form 31-103F1 Calculation of Excess Working Capital, as specified in section 12.13,
  • in the case of a registered investment fund manager, its annual financial statements and its interim financial information, its completed Form 31-103F1 Calculation of Excess Working Capital and its completed Form 31-103F4 Net Asset Value Adjustments, as specified in subsection 12.14(1) and subsection 12.14(2), respectively,
  • in the case of a registered mutual fund dealer that is a member of the MFDA and is registered as an exempt market dealer or scholarship plan dealer, its completed MFDA Form 1 MFDA Financial Questionnaire and Report, as specified in paragraph 12.12(2.1)(b) and in paragraph 12.12(2.1)(c),
  • in the case of a registered investment dealer that is a member of IIROC and is registered as an investment fund manager, its completed IIROC Form 1 Joint Regulatory Financial Questionnaire and Report, as specified in paragraph 12.14(4)(b) and in paragraph 12.14(4)(c),
  • in the case of a registered mutual fund dealer that is a member of the MFDA and is registered as an investment fund manager, its completed MFDA Form 1 MFDA Financial Questionnaire and Report, as specified in paragraph 12.14(5)(b) and in paragraph 12.14(5)(c).

The filing relief does not relieve a registrant of its obligation to ensure that the firm is at all times in compliance with the applicable working capital requirements.

Corporate Finance Relief

Annual and Interim Filings and Delivery Requirements

A person or company required to make any of the following filings, or to send or deliver any of the following documents, during the period from March 23, 2020 to June 1, 2020 has an additional 45 days from the deadline otherwise applicable to make the filing or to send or deliver the document:

  • financial statements required by section 4.2, subsections 4.6(3), 4.6(5), 4.7(2) and 4.10(2) of National Instrument 51-102, and interim financial reports required by section 4.4 of National Instrument 51-102,
  • management’s discussion & analysis required by subsection 5.1(2), 5.6(1), 5.6(3) or by section 5.2 of National Instrument 51-102,
  • an annual information form required by section 6.2 of National Instrument 51-102,
  • executive compensation disclosure required by section 11.6 of National Instrument 51-102,
  • a statement of reserves data and other information required by section 2.1 of National Instrument 51-101,
  • a technical report required by paragraph 4.2(1)(j) of National Instrument 43-101,
  • any similar annual or interim disclosure document of a reporting issuer required pursuant to an exemption from one of the requirements listed above included in an exemptive relief decision made by a securities regulatory authority or regulator prior to March 23, 2020,
  • annual request form required by subsection 4.6(1) of National Instrument 51-102.

The above corporate finance relief is available if, among other conditions, the person or company issues and files on SEDAR at certain prescribed times news releases that disclose certain prescribed information as described in the blanket order, and does not file a preliminary prospectus or a final prospectus for an offering of securities until it has filed all documents for which it is relying on the exemption.

Other Continuous Disclosure Filings

A person or company required to make any of the following filings, or to send or deliver any of the following documents, during the period from March 23, 2020 to June 1, 2020 has an additional 45 days from the deadline otherwise applicable to make the filing or to send or deliver the document, provided that the person or company issues, and files on SEDAR as soon as reasonably practicable, a news release in advance of its filing deadline that discloses each applicable requirement for which it is relying on the exemption:

  • a change of auditor reporting package required by section 4.11 of National Instrument 51- 102,
  • a notice of change in year end required by section 4.8 of National Instrument 51-102,
  • a business acquisition report required by section 8.2 of National Instrument 51-102, or
  • a notice of change in corporate structure required by section 4.9 of National Instrument 51-102.

Filings Related to Exempt Distributions and Designated Ratings Organizations

A person or company required to make any of the following filings, or to send or deliver any of the following documents, during the period from March 23, 2020 to June 1, 2020 has an additional 45 days from the deadline otherwise applicable to make the filing or to send or deliver the document, subject to the conditions described in the blanket order:

  • annual financial statements required by subsection 2.9(17.5) of National Instrument 45-106 National Instrument 45-106,
  • a notice of use of proceeds on Form 45-106F16 Notice of Use of Proceeds required by subsection 2.9(17.19) of National Instrument 45-106,
  • annual financial statements required by section 16 of Multilateral Instrument 45-108,
  • annual disclosure of use of proceeds required by section 17 of Multilateral Instrument 45-108, or
  • an annual filing of a designated rating organization on Form 25-101F1 required by subsection 14(1) of National Instrument 25-101 and any amendment to that filing required by subsection 14(2) of National Instrument 25-101.

Lapse Date for a Base Shelf Prospectus

A person or company subject to a lapse date for a final base shelf prospectus that occurs during the period from March 23, 2020 to June 1, 2020 may add an additional 45 days to that lapse date, provided that the person or company issues, and files on SEDAR as soon as reasonably practicable, a news release in advance of its lapse date that discloses the specific requirements for which it is relying on the exemption, and is not also relying on the exemption described above from annual and interim filings or delivery requirements.

Relief for Marketplaces, Clearing Agencies, Designated Trade Repositories, Designated Information Processors and Commodities Futures Exchanges

Marketplaces, clearing agencies, designated trade repositories, designated information processors and commodities futures exchanges that would be required to provide the regulator with certain documents or other information, including the documents listed below, between March 23, 2020 and June 1, 2020, have an additional 45 days from the deadline otherwise applicable to provide the documents, subject to the conditions described in the blanket order:

  • Form 21-101F3 Quarterly Report of Marketplace Activities
  • Report - Quarterly report of users and activities (including qualitative and quantitative data)
  • Independent Systems Review
  • Audited annual financial statements
  • Unaudited non-consolidated annual financial statements with or without notes
  • Unaudited consolidated and unconsolidated interim financial reports and financial viability ratios
  • SOC 1 Report – Annual
  • Annual compliance reports

You are urged to consult with legal counsel should you have any questions as to the scope of the relief provided or its implications to your business.

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