Backgrounder on the Cooperative Capital Markets Regulatory System

01 August 2015

On August 25, 2015, the participating provinces and territory in the Cooperative Capital Markets Regulatory System achieved an important milestone towards implementation of the system by publishing a revised consultation draft of the uniform provincial and territorial capital markets act (now known as the Capital Markets Act), along with the drafts of the initial regulations proposed for adoption by the participating provinces and territory under the draft uniform act. These materials have been published for a 120-day public comment period.

Background and Key Developments

While the publication of these materials is a critical step towards implementing the system, there have been a number of key developments since September 19, 2013, when the governments of British Columbia, Ontario and Canada first announced that they had agreed in principle to move towards a cooperative capital markets regulatory system and invited all provinces and territories of Canada to participate in the system. These key developments are summarized below:

Jul. 9, 2014

The governments of Saskatchewan and New Brunswick agree to join the system and enter into an amended agreement in principle with the governments of British Columbia, Ontario and Canada.

Sept. 8, 2014

The governments of British Columbia, Ontario, Saskatchewan, New Brunswick and Canada announce that they have entered into a memorandum of agreement (or MOA) formalizing the terms and conditions of the system. Principal components of the system are as follows:

  • Legislative Framework: The legislative framework for the system will consist of the two key pieces of legislation discussed further below: (i) a uniform capital markets act proposed to be enacted by each participating province and territory; and (ii) a complementary federal capital markets stability act proposed to be enacted by Parliament.
  • Regulator: The system will have a single operationally independent regulator, known as the Capital Markets Regulatory Authority (or Authority), with an expert board of directors, a regulatory division (encompassing the policy, regulatory operations, advisory services and enforcement functions of the Authority and led by the chief regulator administering common standards) and an adjudicative division (consisting of an independent tribunal led by the chief adjudicator), that administers both the uniform provincial and territorial legislation and the complementary federal legislation and a single set of regulations under authority delegated by each of the participating jurisdictions.
  • Council of Ministers: Oversight of the system will be through a council of ministers, comprising the ministers responsible for capital markets regulation in each provincial and territorial participating jurisdiction and the federal minister of finance.
  • Offices: The Authority will have a regulatory office in every participating province providing the same range of services that are currently provided in those offices.
  • Fees: The system will have a single, simplified fee structure designed to allow the self-funding of the Authority that does not impose unnecessary or disproportionate costs on market participants.

In addition, the participating jurisdictions agree that the Authority will use its best efforts to negotiate and implement an interface mechanism with each jurisdiction that is not a participating jurisdiction such that the system is, effectively, of national application.

At this time, consultation drafts of the proposed uniform act and federal act are published for a 60-day public comment period (subsequently extended to 90 days, and ending on December 8, 2014). The uniform act is intended to address all matters of provincial or territorial jurisdiction in the regulation of capital markets and is proposed to replace existing securities acts in each of the participating provinces and territories. The federal act is intended to address criminal matters and matters relating to systemic risk in national capital markets and national data collection.

The participating jurisdictions agree, as a condition subsequent to the MOA, to approve a set of initial regulations that will eventually be adopted by the participating provinces and territories under the uniform act and to publish those regulations for public comment as well.

Oct. 9, 2014

The participating jurisdictions announce that the government of Prince Edward Island has agreed to join the system and has entered into the MOA.

Apr. 16, 2015

The participating jurisdictions announce that the government of Yukon has agreed to join the system and that the MOA has been amended to meet the needs of Yukon and other territorial jurisdictions that may choose to join the system. As amended, the MOA now provides for the Authority to have an office in each participating territory to address capital markets activity and regulatory and enforcement demands in their respective jurisdictions.

The participating jurisdictions also announce the members of the independent nominating committee that will recommend candidates to the Council of Ministers for appointment to the initial board of directors of the Authority.

Jul. 24, 2015

At its inaugural meeting, the Council of Ministers announce the appointment of William A. Black as the first chair of the expert board of directors of the Authority. Mr. Black was selected as the chair on the recommendation of the independent nominating committee.

The Council of Ministers also announce the incorporation of the Capital Markets Authority Implementation Organization on July 20, 2015, which will serve as an interim body, which will assist with transition and implementation matters, until the launch of the Authority. It will have no regulatory or adjudicative function.

Questions

If you have questions about the Cooperative Capital Markets Regulatory System and how these developments may be relevant to your business, or if you wish to be added to our email distribution list for our Guide to the Proposed Initial Regulations and related publications, please contact any of the following lawyers:

To view our full guide, click here.


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