By Scott Marescaux
On March 27, 2020, a number of significant and extensive amendments to the B.C. Securities Act came into effect. These amendments are important developments of which all markets participants should be aware.
Three key areas the amendments focus on are:
- enhancing and increasing the BCSC’s enforcement powers;
- broadening the BCSC’s ability to collect on monetary penalties; and
- expanding the types of conduct the BCSC regulates, including the introduction of new laws that address promotional activity and derivatives.
The amendments give the BCSC increased investigative powers, including powers to enter businesses and residences, and to compel co-operation in investigations. They also give the BCSC new powers for investigations into property transactions that may have been implemented to avoid enforcement orders. The amendments also set out possible fines or imprisonment for failing to comply with orders for preservation or production of documents and other information.
Sanctions and monetary penalties have also increased, including:
- the new maximum fine for offences has increased from $3 million to $5 million;
- mandatory minimum sentences have been introduced for people or companies found liable for significant offences multiple times;
- the BCSC is now able to order monetary penalties without a hearing and without notice for certain contraventions.
As part of the focus on enforcement, the amendments provide for protections for whistleblowers. For instance, employers are prohibited from taking actions against employees who disclose or seek advice about disclosing misconduct by their employers. However, the BCSC has not introduced any plans to pay awards to whistleblowers, as other regulators do, including the Ontario Securities Commission.
Concern has been expressed historically about the BCSC’s failure to collect on sanctions. These amendments seek to address such concerns. The amendments increase the BCSC’s ability to freeze and seize property from the outset of its investigation. In addition, the BCSC is now authorized to collect fines against registered retirement savings plans. The amendments also allow the BCSC to direct ICBC to withhold drivers’ licences and licence plates. However, this aspect of the amendments is not yet in force. The amendments also provide the BCSC with new preservation and collection powers where property has been transferred below market value to avoid enforcement of a BCSC order.
Promotional Activity Regulated under the Act
The Act now contains regulations of “promotional activity”, which is defined very broadly, including any “oral or written communication that by itself or together with one or more other activities encourages or reasonably could be expected to encourage a person (a) to purchase, not purchase, trade or not trade a security, or (b) … a derivative”.
The amendments prohibit false or misleading claims, as well as an omission of any fact that a reasonable person would consider important in deciding whether to trade.
These amendments also establish a system for regulating derivatives, a step that is intended to bring B.C. in step with other jurisdictions in Canada.
For more information on these changes or any issues related to securities law, please contact us.