United Nations Climate Change
Our aim is to help our clients understand the potential opportunities and challenges that COP25 may have on their business.
New rules will come into force on June 30, 2016, that will affect the reporting of private placement transactions by investment funds.
Effective June 30, 2016, there will be one form of trade report (New Form 45-106F1) to be filed with all Canadian securities regulators where a distribution of securities occurs in reliance on certain prospectus exemptions. Currently Form 45-106F1 must be filed in all Canadian jurisdictions except British Columbia, where a Form 45-106F6 must be filed. A harmonized form is welcomed but investment funds and their managers should be aware that more information about both the investor and the fund will be required.
In all Canadian jurisdictions other than British Columbia and Ontario, issuers (except certain foreign issuers) will file New Form 45-106F1 on SEDAR. Subject to the next sentence, the securities regulators in British Columbia and Ontario will require New Form 45-106F1 to be filed through the applicable regulator’s Web-based filing system. It is important to note, however, that investment funds reporting annually in British Columbia must do so by paper filing the New Form 45-106F1 with the regulator in that province.
The harmonized form is intended to reduce the compliance burden on investment funds and other issuers while at the same time providing Canadian securities regulators with additional information to assist them in regulating the Canadian exempt market. Investment funds issuers should consider what additional procedures need to be introduced to collect and verify such information, recognizing that such information will need to be certified by an officer or director of the investment fund manager (IFM).
Additional information must be collected to complete the New Form 45-106F1. Key new information includes:
The following additional information regarding an investment fund issuer must also be disclosed in the New Form 45-106F1:
New Form 45-106F1 will require an investment fund issuer to disclose whether it invests primarily in other investment funds. Generally, an investment fund is considered a “fund of funds” if a majority of its assets are invested in other funds under normal market conditions. The investment fund issuer should consider whether its investment objectives specifically state this as a strategy when determining whether it is a “fund of funds.”
All dollar amounts disclosed in the New Form 45-106F1 must be in Canadian dollars. If the distribution is made or compensation paid in a foreign currency, then the distribution/compensation value must be converted into Canadian dollars using the Bank of Canada daily noon exchange rate as of the distribution date. If the daily noon exchange rate is not available, the most recent closing exchange rate available before the distribution date should be used.
For investment funds in continuous distribution, currency values should be converted into Canadian dollars using the Bank of Canada’s average daily noon exchange rate for the distribution period covered by the New Form 45-106F1.
Investment funds, which are permitted to file annually within 30 days after the end of their financial years, may in reporting distributions that occur before January 1, 2017, use either the Form 45-106F1 in force on June 29, 2016, or the New Form 45-106F1. For distributions that occur on or after January 1, 2017, the New Form 45-106F1 must be used.
A significant new requirement is the certification of the filing by a director or officer of the IFM authorized by the IFM. If the IFM is not a corporate entity, an individual who performs similar functions to a director or officer may certify the filing. This requirement may result in an individual certifying a filing containing information of which he or she does not have personal knowledge. Procedures will need to be in place to provide the necessary comfort to such certifying individuals.
The authors wish to thank Cecilia Ancona, law clerk, for her help in preparing this legal update.
IMO 2020 is almost upon us. Readers are well aware of the impending switch to 0.5 percent fuel mandated by Annex VI of MARPOL which will cause an anticipated drop in HSFO demand, the potential hazards of new untested LSFO blends, the concerns around scrubber operations, the debate over open loop versus closed loop, and the myriad of other risks associated with the impending regulatory change.