Part 17.1
Interjurisdictional Co‑operation
211.1 Definitions
211.2 Delegation and
acceptance of authority
211.3 Subdelegation
211.4 Adoption or
incorporation of extra‑provincial
securities laws
211.41 Exemptions
211.5 Exercise of
discretion, interprovincial reliance
211.6 Regulations
211.7 Immunity re
Alberta authority
211.8 Immunity re
extra‑provincial authority
211.9 Appeal re extra‑provincial
decision
211.91 Appeal re
decision of the Commission
Part 18
General Provisions
213 General
exemption
214 Revoke
or vary decisions
215 Self‑incrimination
216 Requirement
to disclose personal information
217 Sending
of documents
218 Admissibility
of certified statements
219 Applications
to a court
220 Service
on Commission
221 Filing
and confidentiality
222 Immunities
223 Lieutenant
Governor in Council regulations
224 Commission
rules
224.1 Changes to unpublished rules
225 Publication
of rules
226 Evidence
re rule
227 Application
of regulations and rules
228 Incorporation
by reference
229 Exemption
from a regulation or rule
231 Transitional
provision
HER MAJESTY, by and with
the advice and consent of the Legislative Assembly of Alberta, enacts as
follows:
Definitions
1 In this Act,
(a) “advisor”
means a person or company engaging in or holding out the person or company as
engaging in the business of advising others with respect to investing in or the
buying or selling of securities or exchange contracts;
(b) “Alberta
securities laws” means this Act, the regulations and any decisions made by the
Commission or the Executive Director and any extra‑provincial securities
laws adopted or incorporated by reference under section 211.4;
(c) “associate”,
when used to indicate a relationship with a person or company, means
(i) an issuer of which the person or company beneficially owns or
controls, directly or indirectly, voting securities entitling the person or
company to more than 10% of the voting rights attached to outstanding
securities of the issuer,
(ii) any partner of the person or company,
(iii) any trust or estate in which the person or company has a
substantial beneficial interest or in respect of which a person or company
serves as trustee or in a similar capacity,
(iv) in the case of a person, a relative of that person, including
(A) the spouse or adult interdependent partner
of that person, or
(B) a relative of the person’s spouse or adult
interdependent partner
if the relative has
the same home as that person;
(d) repealed
2006 c30 s2;
(e) “Chair”
means the Chair of the Commission;
(f) “clearing
agency” means a person or company that,
(i) with respect to trades in securities, acts
as an intermediary in paying funds or delivering securities, or both,
(ii) provides centralized facilities through which trades in
securities or exchange contracts are cleared, or
(iii) provides centralized facilities as a depository of securities,
but does not include an
exchange, a quotation and trade reporting system or a registered dealer;
(g) “Commission”
means the Alberta Securities Commission;
(h) “commodity”
means
(i) any good, article, service, right or interest of which any unit
is, from its nature or by mercantile custom, treated as the equivalent of any
other unit;
(ii) the currency of any jurisdiction;
(iii) any gem, gemstone or other precious stone;
(iv) any other good, article, service, right or interest, or a class
of any of these, designated as a commodity pursuant to an order made under
section 10;
(i) “company”
means any corporation, incorporated association, incorporated syndicate or
other incorporated organization;
(j) “contract”
includes a trust agreement, declaration of trust or other similar instrument;
(k) “contractual
plan” means any contract or other arrangement for the purchase of shares or
units of a mutual fund
(i) by payments over a specified period, or
(ii) by a specified number of payments,
if the amount deducted from
any one of the payments as sales charges is larger than the amount that would
have been deducted from the payment for sales charges had the deduction been
made from each payment at a constant rate for the duration of the plan;
(l) “control
person” means
(i) a person or company who holds a sufficient number of the voting
rights attached to all outstanding voting securities of an issuer to affect
materially the control of the issuer, and if a person or company holds more
than 20% of the voting rights attached to all outstanding voting securities of
an issuer, the person or company is deemed, in the absence of evidence to the contrary,
to hold a sufficient number of the voting rights to affect materially the
control of the issuer, or
(ii) each person or company in a combination of persons or companies
acting in concert by virtue of an agreement, arrangement, commitment or understanding,
who holds in total a sufficient number of the voting rights attached to all
outstanding voting securities of an issuer to affect materially the control of
the issuer, and if a combination of persons or companies holds more than 20% of
the voting rights attached to all outstanding voting securities of an issuer,
the combination of persons or companies is deemed, in the absence of evidence
to the contrary, to hold a sufficient number of the voting rights to affect
materially the control of the issuer;
(m) “dealer”
means a person or company that trades in securities or exchange contracts as
principal or agent;
(n) “decision”,
when used in relation to the Commission or the Executive Director, means a
direction, decision, order, ruling or other requirement made by the Commission
or the Executive Director, as the case may be, under a power or right conferred
by this Act or the regulations or under a delegation or other transfer of an
extra‑provincial authority under section 211.2;
(o) “director”
means a director of a company or an individual performing a similar function or
occupying a similar position for a company or for any other person;
(p) “distribution”,
when used in relation to trading in securities, means
(i) a trade in securities of an issuer that have not been previously
issued,
(ii) a trade by or on behalf of an issuer in previously issued
securities of that issuer that have been redeemed or purchased by or donated to
that issuer,
(iii) a trade in previously issued securities of an issuer from the
holdings of a control person,
(iv) a trade by or on behalf of an underwriter in securities that were
acquired by that underwriter, acting as underwriter, prior to February 1, 1982
if those securities continue on February 1, 1982 to be owned by or for that
underwriter, so acting,
(v) a distribution referred to under the regulations,
(vi) a trade or an intended trade deemed to be a distribution under
section 144(2), or
(vii) a transaction or series of transactions involving a purchase and
sale or a repurchase and resale in the course of or incidental to a
distribution referred to in subclauses (i) to (v);
(q) “distribution
company” means a person or company distributing securities under a distribution
contract;
(r) “distribution
contract” means a contract between a mutual fund or its trustees or other legal
representative and a person or company under which the person or company is
granted the right to
(i) purchase the shares or units of the mutual fund for distribution,
or
(ii) distribute the shares or units of the mutual fund on behalf of
the mutual fund;
(s) “exchange
contract” means a futures contract or an option where
(i) its performance is guaranteed by a clearing agency, and
(ii) it is traded on an exchange pursuant to standardized terms and
conditions set out in the bylaws, rules or regulations of that exchange at a
price agreed on when the futures contract or option is entered into on the
exchange,
and includes any instrument
or class of instruments that
(iii) meets the requirements referred to in subclauses (i) and (ii),
and
(iv) is designated as an exchange contract by an order of the
Commission;
(t) “Executive
Director” means the Executive Director of the Commission;
(u) “extra‑provincial
commission” means a board, commission or other agency established by another
jurisdiction that performs a similar function in that jurisdiction that the
Alberta Securities Commission performs in Alberta;
(v) “financial
institution” means a bank, loan corporation, trust corporation, treasury branch
or credit union;
(w) “form
of proxy” means a written or printed form that, on completion and execution by
or on behalf of a security holder, becomes a proxy;
(w.1) “forward‑looking
information” means disclosure regarding possible events, conditions or results
of operations that is based on assumptions about future economic conditions and
courses of action, and includes future‑oriented financial information
with respect to prospective results of operations, financial position or cash
flows that is presented either as a forecast or a projection;
(x) “futures
contract” means any obligation to make or take future delivery of
(i) a commodity,
(ii) a security, or
(iii) cash if the amount of cash is derived from, or by reference to, a
variable, including
(A) a price or quote for a commodity or
security,
(B) an interest rate,
(C) a currency exchange rate, or
(D) an index or benchmark,
but does not include an
obligation or a class of obligations that is designated not to be a futures
contract pursuant to an order made under section 10;
(y) “hearing”
means a hearing of a matter before the Commission or the Executive Director, as
the case may be, and includes a review of a matter by the Commission or the
Executive Director, as the case may be;
(z) “individual”
means a natural person, but does not include
(i) a partnership, unincorporated association, unincorporated
syndicate, unincorporated organization or a trust, or
(ii) a natural person in the person’s capacity as trustee, executor,
administrator or other legal representative;
(aa) “insider”
means
(i) a director or officer of an issuer,
(ii) a director or officer of a person or company that is itself an
insider or subsidiary of an issuer,
(iii) a person or company that has
(A) beneficial ownership of, or control or
direction over, directly or indirectly, or
(B) a combination of beneficial ownership of and
control or direction over, directly or indirectly,
securities of an
issuer carrying more than 10% of the voting rights attached to all the issuer’s
outstanding voting securities, excluding, for the purpose of the calculation of
the percentage held, any securities held by the person or company as
underwriter in the course of a distribution,
(iv) an issuer that has purchased, redeemed or otherwise acquired a
security of its own issue, for so long as it continues to hold that security,
(v) a person designated as an insider in an order made under section
10, or
(vi) a person that is in a prescribed class of persons;
(bb) “insurance
company” means an insurer as defined in the Insurance
Act that is licensed under that Act;
(bb.1) “investment
fund” means a mutual fund or a non‑redeemable investment fund;
(bb.2) “investment
fund manager” means a person or company who has the power to direct and
exercises the responsibility of directing the affairs of an investment fund;
(cc) “issuer”
means a person or company that
(i) has outstanding securities,
(ii) is issuing securities, or
(iii) proposes to issue securities;
(dd) “management
company” means a person or company that provides investment advice under a
management contract;
(ee) “management
contract” means a contract under which, for valuable consideration, a mutual
fund is provided with investment advice, alone or together with administrative
or management services;
(ff) “material
change” means,
(i) if used in relation to an issuer other than an investment fund,
(A) a change in the business, operations or
capital of the issuer that would reasonably be expected to have a significant effect
on the market price or value of a security of the issuer, or
(B) a decision to implement a change referred to
in paragraph (A) made by the directors of the issuer, or by senior management
of the issuer who believe that confirmation of the decision by the directors is
probable,
and
(ii) if used in relation to an issuer that is an investment fund,
(A) a change in the business, operations or
affairs of the issuer that would be considered important by a reasonable
investor in determining whether to purchase or to continue to hold a security
of the issuer, or
(B) a decision to implement a change referred to
in paragraph (A) made
(I) by the directors of the issuer or the
directors of the investment fund manager of the issuer,
(II) by senior management of the issuer who
believe that confirmation of the decision by the directors is probable, or
(III) by senior management of the investment fund
manager of the issuer who believe that confirmation of the decision by the
directors of the investment fund manager of the issuer is probable;
(gg) “material
fact”, when used in relation to securities issued or proposed to be issued,
means a fact that would reasonably be expected to have a significant effect on
the market price or value of the securities;
(hh) “Minister”
means the Minister determined under section 16 of the Government Organization Act as the Minister responsible for this
Act;
(ii) “misrepresentation”
means
(i) an untrue statement of a material fact, or
(ii) an omission to state a material fact that is required to be
stated, or
(iii) an omission to state a material fact that is necessary to be
stated in order for a statement not to be misleading;
(jj) “mutual
fund” means
(i) an issuer whose primary purpose is to invest money provided by
its security holders and whose securities entitle the holder to receive on
demand, or within a specified period after demand, an amount computed by
reference to the value of a proportionate interest in the whole or in part of
the net assets, including a separate fund or trust account, of the issuer, or
(ii) an issuer that is designated as a mutual fund under section 10 or
in accordance with the regulations,
but does not include an
issuer, or class of issuers, that is designated under section 10 not to be a mutual
fund;
(jj.1) “non‑redeemable
investment fund” means
(i) an issuer
(A) whose primary purpose is to invest money
provided by its security holders,
(B) that does not invest
(I) for the purpose of exercising or seeking to
exercise control of an issuer, other than an issuer that is a mutual fund or a
non‑redeemable investment fund, or
(II) for the purpose of being actively involved
in the management of any issuer in which it invests, other than an issuer that
is a mutual fund or a non‑redeemable investment fund,
and
(C) that is not a mutual fund,
or
(ii) an issuer that is designated as a non‑redeemable investment
fund under section 10 or in accordance with the regulations,
but does not include an
issuer, or class of issuers, that is designated under section 10 not to be a
non‑redeemable investment fund;
(kk) “offering
memorandum” means an offering memorandum that is required to be delivered under
Alberta securities laws;
(ll) “officer”,
with respect to an issuer or registrant, means
(i) a chair or vice-chair of the board of directors, a chief
executive officer, chief operating officer, chief financial officer, president,
vice-president, secretary, assistant secretary, treasurer, assistant treasurer
and general manager,
(ii) an individual who is designated as an officer under a bylaw or
similar authority of the issuer or registrant, and
(iii) an individual who performs functions for a person or company
similar to those normally performed by an individual referred to in subclause
(i) or (ii);
(mm) “person”
means an individual, partnership, unincorporated association, unincorporated
syndicate, unincorporated organization, trust, trustee, executor, administrator
or other legal representative;
(nn) “portfolio
manager” means an advisor registered for the purpose of managing the investment
portfolio of the advisor’s clients through discretionary authority granted by
the clients;
(oo) “portfolio
securities” means securities held or proposed to be purchased by a mutual fund;
(pp) repealed
2003 c32 s2;
(qq) repealed
2006 c30 s2;
(rr) “promoter”
means
(i) a person or company, acting alone or in conjunction with one or
more other persons or companies or a combination of them, that, directly or
indirectly, takes the initiative in founding, organizing or substantially
reorganizing the business of the issuer, or
(ii) a person or company that, directly or indirectly, receives in
consideration of services or property, or both,
(A) 10% or more of any class of securities of
the issuer, or
(B) 10% or more of the proceeds from the sale of
any class of securities of a particular issue,
in connection with
the founding, organizing or substantial reorganizing of the business of the
issuer, but does not include a person or company that receives securities or
proceeds solely
(C) as underwriting commissions, or
(D) in consideration of property transferred to
the issuer,
if that person or
company does not otherwise take part in founding, organizing or substantially
reorganizing the business;
(ss) “prospectus”
includes amendments made to a prospectus;
(tt) “proxy”
means a completed and executed form of proxy by which a security holder has
appointed a person or company as the security holder’s nominee to attend and
act on the security holder’s behalf at a meeting of security holders;
(uu) “quotation
and trade reporting system” means a person or company that operates facilities
that permit the dissemination of price quotations for the purchase and sale of
securities and reports of completed transactions in securities for the
exclusive use of registered dealers, but does not include an exchange or a
registered dealer;
(vv) “recognized
clearing agency” means a clearing agency recognized by the Commission under
section 67;
(ww) “recognized
exchange” means an exchange recognized by the Commission under section 62;
(xx) “recognized
quotation and trade reporting system” means a quotation and trade reporting
system recognized by the Commission under section 68(1);
(yy) “recognized
self‑regulatory organization” means a self‑regulatory organization
recognized by the Commission under section 64;
(zz) “records”
include
(i) an account, book, return, statement, report, financial document
or other memorandum of financial or non‑financial information whether in
writing or in electronic form or represented or reproduced by any other means,
and
(ii) the results of the recording of details of electronic data
processing systems and programs to illustrate what the systems and programs do
and how they operate;
(aaa) “registrant”
means a person or company registered or required to be registered under this
Act or the regulations;
(bbb) “regulations”
means the regulations made under this Act and, unless the context otherwise
indicates, includes the rules;
(ccc) “reporting
issuer” means an issuer
(i) that has issued voting securities on or after October 1, 1967 in
respect of which a prospectus was filed and a receipt for it obtained under a
predecessor of this Act or in respect of which a securities exchange take‑over
bid circular was filed under a predecessor of this Act,
(ii) that has
(A) filed a prospectus for which the Executive
Director has issued a receipt under this Act, or
(B) filed a securities exchange take-over bid
circular under this Act on or before June 1, 1999,
(iii) any of whose securities have been at any time since February 1,
1982 listed and posted for trading on an exchange recognized under section 62
by the Commission regardless of when the listing and posting for trading
commenced,
(iv) that has exchanged its securities with another issuer or with the
holders of the securities of that other issuer in connection with an
amalgamation, merger, reorganization, arrangement or similar transaction if one
of the parties to the amalgamation, merger, reorganization, arrangement or
similar transaction was a reporting issuer at the time of the amalgamation,
merger, reorganization, arrangement or similar transaction;
(v) that the Commission has declared to be a reporting issuer under
section 145;
(ddd) “rules”
means the rules made by the Commission under section 224 or under section
211.6(2);
(eee) “salesperson”
means an individual who is employed by a dealer for the purpose of making
trades in securities or exchange contracts on behalf of that dealer;
(fff) “Secretary”
means the Secretary of the Commission and includes any person appointed by the
Commission to act in the place of the Secretary;
(ggg) “security”
includes
(i) any document, instrument or writing commonly known as a security;
(ii) any document constituting evidence of title to or interest in the
capital, assets, property, profits, earnings or royalties of any person or
company;
(iii) any document constituting evidence of an interest in an
association of legatees or heirs;
(iv) any document constituting evidence of an option, subscription or
other interest in or to a security;
(v) any bond, debenture, note or other evidence of indebtedness,
share, stock, unit, unit certificate, participation certificate, certificate of
share or interest, preorganization certificate or subscription other than
(A) a contract of insurance issued by an
insurance company, or
(B) an evidence of deposit issued by a financial
institution;
(vi) any agreement under which the interest of the purchaser is valued
for purposes of conversion or surrender by reference to the value of a
proportionate interest in a specified portfolio of assets other than a contract
issued by an insurance company that provides for payment at maturity of an
amount of not less than 3/4 of the premiums paid by the purchaser for a benefit
payable at maturity;
(vii) any agreement under which money received will be repaid or
treated as a subscription to shares, stock, units or interests at the option of
the recipient or of any person or company;
(viii) any certificate of share or interest in a trust, estate or
association;
(ix) any profit‑sharing agreement or certificate;
(x) any certificate of interest in an oil, natural gas or mining
lease, claim or royalty voting trust certificate;
(xi) any oil or natural gas royalties or leases or fractional or other
interest in them;
(xii) any collateral trust certificate;
(xiii) any income or annuity contract not issued by an insurance
company;
(xiv) any investment contract;
(xv) any document constituting evidence of an interest in a
scholarship or educational plan or trust,
(xvi) any item or thing not referred to in subclauses (i) to (xv) that
is a futures contract or option but is not an exchange contract,
whether or not any of them
relate to an issuer or proposed issuer, but does not include an exchange
contract;
(hhh) “self-regulatory
organization” means a person or company that is organized for the purpose of
regulating the operations and the standards of practice and business conduct of
its members;
(iii) repealed
2006 c30 s2;
(jjj) “trade”
includes
(i) any sale or disposition of a security for valuable consideration,
whether the terms of payment are on margin, instalment or otherwise, but does
not include
(A) a purchase of a security, or
(B) except as provided in subclause (v), a
transfer, pledge or encumbrance of securities for the purpose of giving
collateral for a bona fide debt;
(ii) any entering into a futures contract or an option that is an
exchange contract;
(iii) any participation as a trader in any transaction in a security or
an exchange contract through the facilities of an exchange or a quotation and
trade reporting system;
(iv) any receipt by a registrant of an order to buy or sell a security
or an exchange contract;
(v) any transfer, pledge or encumbrancing of securities of an issuer
from the holdings of a control person for the purpose of giving collateral for
a bona fide debt;
(vi) any act, advertisement, solicitation, conduct or negotiation made
directly or indirectly in furtherance of anything referred to in subclauses (i)
to (v);
(kkk) “underwriter”
means a person or company that,
(i) as principal, agrees to purchase securities with a view to
distribution, or
(ii) as agent, offers for sale or sells securities in connection with
a distribution,
and includes a person or
company that has a direct or indirect participation in the distribution, but
does not include,
(iii) a person or company whose interest in the transaction is limited
to receiving the usual and customary distributor’s or seller’s commission
payable by an underwriter or issuer,
(iv) a mutual fund that, under the laws of the jurisdiction to which
it is subject, accepts its shares or units for surrender and resells them,
(v) a company that, under the laws of the jurisdiction to which it is
subject, purchases its shares and resells them, or
(vi) a bank listed in Schedule I, II or III of the Bank Act
(Canada) with respect to the securities described in the regulations and to
those banking transactions designated by the regulations;
(lll) “voting security” means any security other
than a debt security of an issuer carrying a voting right under all
circumstances or under some circumstances that have occurred and are
continuing.
RSA 2000 cS‑4
s1;RSA 2000 cI‑3 s869;2002 cA‑4.5 s73;
2003 c32 s2;2004 cI‑1.5 s5;2005 c18 s2;2006 c30 s2;
2007 c10 s2
Affiliation
2 An issuer is affiliated with another issuer if
one of them is the subsidiary of the other or if each of them is controlled by
the same person or company.
1981 cS‑6.1 s2
Control
3 A person or company is considered to
control another person or company if the person or company, directly or
indirectly, has the power to direct the management and policies of the other
person or company by virtue of
(a) the
ownership or direction of voting securities of the other person or company,
(b) a
written agreement or trust instrument,
(c) being
the general partner or controlling the general partner of the other person or
company, or
(d) being the trustee of the other person or
company.
RSA 2000 cS‑4
s3;2004 cI‑1.5 s5
Subsidiary
4 A subsidiary is an issuer that is controlled by
another issuer.
1981 cS‑6.1 s4
Beneficial ownership
5 A person is deemed to beneficially own
securities that are beneficially owned
(a) by
an issuer controlled by that person or by an affiliate of that issuer,
(b) by
an affiliate of that person, or
(c) through a trustee, legal representative,
agent or other intermediary of that person.
RSA 2000 cS‑4
s5;2005 c18 s3
Deemed beneficial
ownership
6 An issuer is deemed to beneficially own
securities that are beneficially owned by its affiliates.
RSA 2000 cS‑4
s6;2005 c18 s4
Deemed insiders of a
mutual fund
7 The following are deemed to be an insider of a
mutual fund:
(a) every
management company of a mutual fund that is a reporting issuer;
(b) every
distribution company of a mutual fund that is a reporting issuer;
(c) every insider of a management company or
distribution company referred to in clauses (a) and (b).
1981 cS‑6.1 s7
Deemed insiders of an
income trust
7.1(1) In
this section,
(a) “income
trust” means an Alberta income trust as defined in the Income Trusts
Liability Act;
(b) “operating
entity” means a person or company with an underlying business or assets owned
in whole or in part by an income trust for the purposes of generating cash
flow;
(c) “manager”
means a person or company established or contracted to provide management or
administrative services.
(2) The
following are deemed to be an insider of an income trust:
(a) every
operating entity of the income trust;
(b) every
manager of the income trust;
(c) if an operating entity or a manager is not a
reporting issuer, every person or company who would be an insider of the
operating entity or the manager if the operating entity or the manager were a
reporting issuer.
2004 cI‑1.5 s5
Deemed insiders
8(1) If an issuer becomes an insider of a reporting
issuer, every director or officer of the issuer is deemed to have been an
insider of the reporting issuer for the previous 6 months or for that shorter
period during which the director or officer was a director or officer of the
issuer.
(2) If a reporting issuer becomes an insider of any
other reporting issuer, every director or officer of the second‑mentioned
reporting issuer is deemed to have been an insider of the first‑mentioned
reporting issuer for the previous 6 months or for that shorter period during
which the director or officer was a director or officer of the second‑mentioned
reporting issuer.
RSA 2000 cS‑4
s8;2007 c10 s3
Special relationships
9 A person or company is in a special relationship
with a reporting issuer if
(a) the
person or company is an insider, affiliate or associate of
(i) the reporting issuer,
(ii) a person or company that is proposing to make a take‑over
bid, as defined in Part 14, for the securities of the reporting issuer, or
(iii) a person or company that is proposing
(A) to become a party to a reorganization,
amalgamation, merger or arrangement or a similar business combination with the
reporting issuer, or
(B) to acquire a substantial portion of the
property of the reporting issuer;
(b) the
person or company has engaged, is engaging or proposes to engage in any
business or professional activity with or on behalf of
(i) the reporting issuer, or
(ii) a person or company described in clause (a)(ii) or (iii);
(c) the
person is a director, officer or employee of
(i) the reporting issuer, or
(ii) a person or company described in clause (a)(ii) or (iii) or (b);
(d) the
person or company learned of a material fact or material change with respect to
the reporting issuer while the person or company was a person or company
described in clause (a), (b) or (c);
(e) the
person or company
(i) learns of a material fact or material change with respect to the
reporting issuer from any other person or company described in this section,
including a person or company described in this clause, and
(ii) knows or ought reasonably to know that the
other person or company is a person or company in a special relationship with
the reporting issuer.
1981 cS‑6.1
s9;1989 c19 s2
Designation orders
10(1) The
Commission may, if the Commission considers that it would not be prejudicial to
the public interest to do so, make an order designating
(a) a
good, article, service, right or interest, or a class of those, as a commodity,
(b) a
futures contract, or a class of futures contracts, not to be a futures
contract,
(c) a
person or company as an insider,
(d) an
issuer or a class of issuers to be, or not to be, a mutual fund,
(e) an
issuer or a class of issuers to be, or not to be, a non‑redeemable
investment fund, and
(f) an
issuer or a class of issuers to be, or not to be, a reporting issuer.
(2) An
order made under subsection (1) may be made by the Commission on its own motion
or on the application of an interested person or company.
RSA 2000 cS‑4
s10;2004 cI‑1.5 s5;2005 c18 s5
Part 1
Alberta Securities Commission
The Alberta Securities
Commission
11(1) The Alberta Securities Commission is continued
and is responsible for the administration of the Alberta securities laws.
(2) The
Commission is a corporation consisting of the members of the Commission
appointed by the Lieutenant Governor in Council.
(3) The Commission has, for the purposes of
carrying out its functions and duties under this or any other enactment, the
capacity and the rights, powers and privileges of a natural person.
1981 cS‑6.1
s10;1988 c7 s1(3);1995 c28 s3;2000 c17 s36
Bylaws
12(1) The Commission may make bylaws governing the
administration and management of the business and affairs of the Commission.
(2) The Regulations
Act does not apply to a bylaw made under this section.
1995 c28 s4
Chair and Vice-chair
13(1) The Lieutenant Governor in Council
(a) shall
designate one of the members of the Commission as the Chair of the Commission,
(b) may
designate one or more members of the Commission as a Vice‑chair of the
Commission, and
(c) may
designate one of the members of the Commission as the lead independent member,
with the powers, duties and functions prescribed by the Lieutenant Governor in
Council.
(1.1) The
lead independent member may not be the Chair or a Vice‑chair of the
Commission.
(2) The
Chair is the chief executive officer of the Commission.
(3) If
the office of the Chair is vacant or if the Chair is absent or unable to act
for any reason, a Vice‑chair shall serve as Chair.
RSA 2000 cS‑4
s13;2003 c32 s3;2005 c18 s6
Remuneration
14 The remuneration payable to the Chair,
Vice‑chair and members of the Commission shall be set by the Commission,
subject to the approval of the Minister.
RSA 2000 cS‑4
s14;2005 c18 s7
Continuation in office
14.1(1) If
a member of the Commission resigns or a member’s appointment expires, the Chair
may authorize that individual to continue to exercise powers as a member of the
Commission in any proceeding over which that member had jurisdiction
immediately before the end of that member’s term.
(2) An authorization under subsection
(1) continues until a final decision in that proceeding is made.
(3) Section
14 applies to a person who performs duties under subsection (1).
2005 c18 s8
Acting members of
Commission
15(1) The Lieutenant Governor in Council may from
time to time nominate one or more persons from among whom acting members of the
Commission may be selected.
(2) When
in the Chair’s opinion it is necessary or desirable for the proper and
expeditious performance of the Commission’s duties, the Chair may name a person
nominated under subsection (1) as an acting member of the Commission for a
period of time, during any circumstance or for the purpose of any matter before
the Commission.
(3) An acting member has, during the period, under
the circumstances or for the purpose for which the person is named an acting
member, all the powers, and may perform all duties, of a member of the
Commission.
1988 c7 s1(4);1995 c28
s6
Staff
16 The Commission may
(a) appoint
(i) an Executive Director of the Commission,
(ii) a Secretary of the Commission, and
(iii) any other employees that it considers necessary,
and
(b) obtain the services of persons having
technical or professional knowledge required by the Commission in connection
with its business.
1988 c7 s1(4);1995 c28
s7
Duties of the Executive
Director
17(1) The Executive Director is the chief administrative
officer of the Commission.
(2) The
Executive Director may authorize an employee of the Commission to do any act or
thing required or permitted to be done by the Executive Director under this
Act, the regulations or any other Act.
(3) An
authorization under subsection (2) may be
(a) general
or applicable to a particular case, and
(b) conditional
or unconditional.
(4) Notwithstanding that the Executive Director has
given an authorization under this section, the Executive Director may do the
act or thing in respect of which the authorization was given.
1995 c28 s7
Duties of the Secretary
18(1) The Secretary is responsible for carrying out
the duties imposed on the Secretary by this Act, the regulations, any other Act
or the Commission.
(2) The
Secretary may
(a) accept
service of all notices and other documents on behalf of the Commission,
(b) when
required, provide to the Court of Appeal the record of proceedings held before
the Commission, and
(c) certify
any decision made by the Commission or the Executive Director or any document,
record or thing used in connection with a hearing or other proceeding.
(3) A certificate purporting to be signed by the
Secretary is, without proof of the office or signature, admissible in evidence,
so far as it is relevant, for all purposes in any action, hearing, prosecution
or other proceeding.
1995 c28 s7
Financial matters re
Commission
19(1) All fees, costs, administrative penalties under
section 199, settlement money and other revenue arising with respect to the
administration of the Alberta securities laws or any other enactments
administered by the Commission are the revenues of the Commission.
(2) All
money from any source that is received by and all money that is payable to the
Commission belongs to the Commission.
(3) Any
income earned from the money of the Commission accrues to and belongs to the
Commission.
(4) The
Commission
(a) shall
open and operate bank accounts in its own name and shall deposit all money
received by the Commission into those bank accounts;
(b) shall
from the money received by the Commission make disbursements and pay all of the
expenditures, debts and liabilities incurred by the Commission;
(c) may
borrow money for the purposes of carrying out its business;
(d) may
invest money for the purposes of carrying out its business;
(e) may
be a participant under section 40 of the Financial Administration Act.
(5) Notwithstanding subsections (1) and (2), money
that is received by the Commission from administrative penalties under section
199 may be expended only for the purposes of educating investors and promoting
or otherwise enhancing knowledge and information of persons regarding the
operation of the securities and financial markets.
RSA 2000 cS‑4
s19;2003 c32 s4;2004 c7 s19
Annual report
20(1) The Commission shall, after the end of the
Commission’s fiscal year, prepare and deliver to the Minister a report
consisting of
(a) a
summary of the nature and number of
(i) filings under this Act and the regulations,
(ii) registrations under this Act and the regulations, and
(iii) enforcement proceedings taken under this Act and the regulations,
(b) a
general commentary on the law concerning securities and exchange contracts and
on the practice and development of that law,
(c) information
similar to that required under clause (a) in respect of other statutes
administered by the Commission,
(d) audited financial statements, and
(e) other
information as requested by the Minister or Lieutenant Governor in Council.
(2) On
receiving a report delivered to the Minister under subsection (1), the Minister
shall,
(a) if
the Legislative Assembly is sitting when the report is received by the
Minister, lay the report before the Assembly, or
(b) if the Legislative Assembly is not sitting
when the report is received by the Minister, lay the report before the Assembly
within 15 days after the commencement of the sitting next following the receipt
of the report.
1995 c28 s7;2000 c17 s4
Agent of the Crown
21(1) The Commission is for the purposes of this Act
and the regulations an agent of the Crown in right of Alberta, and the powers
of the Commission provided for under this Act and the regulations may be
exercised by the Commission only as an agent of the Crown.
(2) An action or other legal proceedings in respect
of a right or obligation acquired or incurred by the Commission on behalf of
the Crown in right of Alberta, whether in the name of the Commission or in the
name of the Crown in right of Alberta, may be brought by or taken against the
Commission in the name of the Commission in any court that would have
jurisdiction if the Commission were not an agent of the Crown.
1995 c28 s7;2000 c17 s5
Delegation of power
22(1) The Commission may authorize in writing any
member of the Commission, including the Chair or Vice‑chair, to do any
act or thing required or permitted to be done by the Commission under this Act,
the regulations or any other Act.
(2) Where
a member of the Commission is authorized to do any act or thing under
subsection (1), any decision made by that member in respect of that act or
thing has the same force and effect as if the decision were made by the
Commission.
(3) For
the purposes of sections 144, 145, 153 and 212(2) of this Act, sections
1(7), 229(2) and 244(2) of the Cooperatives
Act and sections 3(3), 156(2) and 171(3) of the Business Corporations Act, the Chair, a Vice‑chair or any
member of the Commission may, unless otherwise requested by the applicant, act
alone in exercising and performing the powers and duties of the Commission.
(4) The
Commission may authorize in writing the Executive Director or any other
individual employed by the Commission to do any act or thing required or
permitted to be done by the Commission under this Act, the regulations or any
other Act.
(5) A
written authorization made under subsection (1) or (4) may be
(a) general
or applicable to a particular case, and
(b) conditional
or unconditional.
(6) Notwithstanding
that the Commission has given an authorization under this section, the
Commission may do the act or thing in respect of which the authorization was
given.
(7) Notwithstanding anything in this section, the
Commission shall not make an authorization under this section authorizing one
or more members of the Commission or the Executive Director to make rules.
RSA 2000 cS‑4
s22;2001 cC‑28.1 s469;2006 c30 s5
Sitting in panels
23(1) The Chair may designate 2 or more members of
the Commission to sit as a panel of the Commission and may direct the panel to
conduct any hearing, review, inquiry or other proceeding that the Commission
itself could conduct under this Act or the regulations or any other enactments.
(2) Two
members constitute a quorum at a sitting of a panel of the Commission.
(3) A
decision or other action made or taken at a sitting of a panel of the
Commission at which a quorum is present is the decision or action of the
Commission and binds all members of the Commission.
(4) A
panel of the Commission has, with respect to its duties, the same jurisdiction
as that of the Commission and may exercise and perform all the powers of the
Commission under this or any other Act with respect to a hearing, review,
inquiry or other proceeding that it is directed to conduct and for that purpose
any reference in this or any other Act to the Commission is deemed to be a
reference to a panel of the Commission.
(5) The
Chair may designate a member of a panel of the Commission to preside at any
sitting of the panel at which the Chair is not present.
(6) A
panel of the Commission shall conduct its sittings separately from those of
another panel of the Commission being conducted at the same time.
(7) Where a hearing, inquiry or other proceeding is
conducted by a panel of the Commission and one or more members of the panel do
not for any reason attend on any day or part of a day, the remaining members
present may, if they constitute a quorum of the panel, continue with the
hearing, inquiry or proceeding.
1981 cS‑6.1
s15;1988 c7 s1(41);1995 c28 s8;2000 c17 s6
Extra-provincial power
of Commission
24(1) Where permitted to do so by another
jurisdiction,
(a) the
Commission is, with respect to any matter coming under the purview of the
Commission by virtue of this Act, empowered to exercise and perform those
powers and duties in that other jurisdiction that the Commission can exercise
and perform in Alberta, and
(b) the
Executive Director is, with respect to any matter coming under the purview of
the Executive Director by virtue of this Act, empowered to exercise and perform
those powers and duties in that other jurisdiction that the Executive Director
can exercise and perform in Alberta.
(2) The
Commission, in conjunction with an extra‑provincial commission or an
official of an extra‑provincial commission, may hold hearings outside
Alberta with respect to any matter that would be within the jurisdiction of the
Commission if the hearing were held in Alberta.
(3) The Executive Director, in conjunction with an
extra‑provincial commission or an official of an extra‑provincial
commission, may hold hearings outside Alberta with respect to any matter that
would be within the jurisdiction of the Executive Director if the hearing were
held in Alberta.
1981 cS‑6.1
s16;1988 c7 s1(5);1995 c28 s62
Extra-provincial
commissions
25(1) An extra‑provincial commission or an official
of an extra‑provincial commission may hold hearings together with
(a) the
Commission with respect to any matter coming within the jurisdiction of the
Commission, or
(b) the
Executive Director with respect to any matter coming within the jurisdiction of
the Executive Director.
(2) For
the purpose of holding a hearing under this section,
(a) any
powers to be exercised
(i) in respect of a hearing held with the Commission shall be
exercised by the Commission, and
(ii) in respect of a hearing held with the Executive Director shall be
exercised by the Executive Director,
and
(b) section
29 applies as if the matter being heard were being heard solely by the
Commission or the Executive Director, as the case may be.
(3) When a hearing is held under this section, only
those decisions made by the Commission or the Executive Director, as the case
may be, shall be implemented within Alberta.
1981 cS‑6.1
s17;1988 c7 s1(5);1995 c28 s62
Evidence taken outside
Alberta
26(1) The Commission or the Executive Director may
apply to the Court of Queen’s Bench for an order
(a) appointing
a person to take the evidence of a witness outside Alberta for use in an
investigation or hearing before the Commission, and
(b) providing
for the issuance of a written request directed to the judicial authorities of
the jurisdiction in which the witness is to be found for the issuance of any
process as is necessary
(i) to compel the person to attend to give testimony on oath or
otherwise before the person appointed under clause (a), and
(ii) to produce documents, records and things relevant to the subject‑matter
of the investigation or hearing.
(2) The
practice and procedure in connection with
(a) an
appointment under this section,
(b) the
taking of evidence, and
(c) the
certifying and return of the appointment
shall, to the extent
possible, be the same as those that govern similar matters in civil proceedings
in the Court of Queen’s Bench in Alberta.
(3) Unless
the Court otherwise provides, the making of an order under subsection (1) does
not determine whether evidence obtained pursuant to the order is admissible in
a hearing before the Commission.
(4) Nothing in this section shall be construed so
as to limit any power that the Commission may have to obtain evidence outside
Alberta by any other means including under any other enactment or by the
operation of law.
1995 c28 s9
Evidence taken in
Alberta by other securities regulatory agencies
27(1) Where
(a) a
securities commission or other body is empowered by statute to administer or
regulate securities in a jurisdiction outside Alberta, and
(b) the
Court of Queen’s Bench in Alberta is satisfied that a court or tribunal of
competent jurisdiction in a jurisdiction outside Alberta has properly
authorized that securities commission or other body to obtain testimony and
evidence in Alberta from a witness located in Alberta,
the Court of Queen’s
Bench in Alberta may
(c) order
the attendance of the witness for the purpose of being examined,
(d) order
the production of any record, document or thing mentioned in the order, and
(e) give
directions as to the time and place of the examination and all other matters
with respect to the examination as the Court of Queen’s Bench considers
appropriate.
(2) In
making an order under subsection (1), the Court of Queen’s Bench may, insofar
as the Court considers appropriate, order that the examination of the witness
(a) be
before a person appointed in accordance with the directions of, and
(b) be
carried out in the manner provided for by,
the court or tribunal of the jurisdiction outside Alberta
that authorized the obtaining of the testimony and evidence in Alberta.
1995 c28 s9
Engaging experts
28(1) The Commission or the Executive Director may
engage persons to provide services and to advise, or to inquire into and report
back on matters referred to that person by, the Commission or the Executive
Director.
(2) The
Commission or the Executive Director
(a) may
submit any documents, records or things to one or more persons engaged under
subsection (1) for examination, and
(b) may
(i) summon and enforce the attendance of witnesses before, and
(ii) compel witnesses to produce documents, records and things to
a person engaged under
subsection (1) in the same manner as if the Commission or the Executive
Director were conducting a hearing.
(3) A person engaged under this section may be paid
remuneration and living and travelling expenses in amounts determined by the
Commission or the Executive Director, as the case may be.
1981 cS‑6.1 s18;1988
c7 s1(41);1991 c33 s3;1995 c28 s62
Conduct of hearings
29 For the purpose of a hearing before the
Commission or the Executive Director, as the case may be, the following
applies:
(a) except
where otherwise provided for in this Act or the regulations, notice in writing
of the time, place and purpose of the hearing shall be sent to the person or
company that is the subject of the hearing;
(b) except
where otherwise provided for in this Act or the regulations, in addition to any
other person or company to whom notice is required to be sent under clause (a),
notice in writing of the time, place and purpose of the hearing shall be sent
to any person or company that, in the opinion of the Commission or the
Executive Director, as the case may be, is substantially affected by the
hearing;
(c) the
Commission or the Executive Director, as the case may be, has the same power as
is vested in the Court of Queen’s Bench for the trial of civil actions
(i) to summon and enforce the attendance of witnesses,
(ii) to compel witnesses to give evidence on oath or otherwise, and
(iii) to compel witnesses to produce documents, records, securities,
exchange contracts, contracts and things;
(d) the
failure or refusal of a person summoned as a witness under clause (c) to attend
the hearing, to answer questions or to produce documents, records, securities,
exchange contracts, contracts and things that are in that person’s custody or
possession makes that person, on application to the Court of Queen’s Bench by
the Commission or the Executive Director, as the case may be, liable to be
committed for contempt by the Court of Queen’s Bench in the same manner as if
that person were in breach of an order or judgment of that Court;
(e) the
Commission or the Executive Director, as the case may be, shall receive that
evidence that is relevant to the matter being heard;
(f) the
laws of evidence applicable to judicial proceedings do not apply;
(g) all
oral evidence received shall be taken down in writing or recorded by electronic
means;
(h) all
the evidence taken down in writing or recorded by electronic means and all
documentary evidence and things received in evidence at a hearing form the
record of the proceeding;
(i) if,
in the opinion of the Commission or the Executive Director, as the case may be,
the decision made after a hearing adversely affects the right of a person or
company to trade in securities or exchange contracts, written reasons for the
decision shall be issued;
(j) notice
of every decision together with a copy of the written reasons for it, if any,
shall be promptly sent to
(i) the persons or companies to whom notice of the hearing was sent,
and
(ii) any person or company that, in the opinion of the Commission or
the Executive Director, as the case may be, is substantially affected by it;
(k) a
person or company appearing at a hearing may be represented by legal counsel;
(l) a
hearing is open to the public unless the person presiding over the hearing
considers that it is in the public interest to order otherwise;
(m) the provisions of the Alberta
Rules of Court compelling the
attendance of witnesses, including provisions relating to the payment of
conduct money, apply to matters heard under this Act.
1981 cS‑6.1
s19;1982 c32 s3;1988 c7 s1(41)(43);1991 c33 s40;
1995 c28 s10;2000 c17 s7
Referral by Executive
Director
30(1) The Executive Director may at any time refer
any matter to the Commission for its consideration.
(2) On the referral of a matter to the Commission
under subsection (1), the Commission may conduct a hearing into the matter and
may make an order in respect of the matter or by order or otherwise give any
advice and direction to the Executive Director in respect of the matter that
the Commission considers appropriate in the circumstances.
1991 c33 s4;1995 c28 s62
Jurisdiction
31 The Commission has the jurisdiction to
determine all questions of fact or law that arise in any matter before it.
1999 c15 s7
Decision made without a
hearing
32 If, under this Act,
(a) a
person or company
(i) was given an opportunity to have a hearing, and
(ii) declined to have a hearing,
and
(b) the
Commission or the Executive Director makes a decision in respect of the matter
for which the person or company was given the opportunity to have a hearing,
the Commission or the Executive Director, as the case may
be, shall send a copy of the decision to that person or company and to any
other person or company, that in the opinion of the Commission or the Executive
Director making the decision, will likely be affected by the decision.
1981 cS‑6.1
s20;1988 c7 s1(41)(43);1995 c28 s11
Interim orders
33(1) Notwithstanding anything in this Act, where
(a) this
Act permits the Commission or the Executive Director to conduct a hearing or to
make a decision after conducting a hearing or after giving a person or company
an opportunity to have a hearing, and
(b) the
Commission or the Executive Director before whom the hearing is to be held
considers that the length of time required to conduct a hearing and render a
decision could be prejudicial to the public interest,
the Commission or the
Executive Director, as the case may be, may make an interim order at any time
without conducting a hearing.
(2) An
interim order,
(a) unless
the order otherwise provides, takes effect immediately on being made, and
(b) expires
15 days from the day that it is made.
(3) The
Commission or the Executive Director may extend the period of time that an
interim order remains in effect
(a) for
such period as the Commission or the Executive Director considers necessary, or
(b) for
such period until the hearing is concluded and a decision is rendered.
(4) Where
the Commission or the Executive Director makes an interim order, the Commission
or the Executive Director, as the case may be, shall send
(a) a
copy of the interim order, and
(b) an
accompanying notice of hearing,
to any person or company that, in the opinion of the
Commission or the Executive Director, is directly affected by the order.
1981 cS‑6.1
s21;1984 c64 s5;1988 c7 s1(41)(43);
1991 c33 s5;1995 c28 s11;1999 c15 s8
Late filing of periodic
disclosure
33.1(1) Notwithstanding
section 198(3), if a person or company fails to file periodic disclosure under
section 146, the Commission or the Executive Director may, without providing an
opportunity to be heard, order one or more of the following:
(a) that
trading in or purchasing cease in respect of any security or exchange contract
as specified in the order;
(b) that
a person or company cease trading in or purchasing securities, exchange contracts,
specified securities or a class of securities or exchange contracts as
specified in the order.
(2) The
Commission or the Executive Director, as the case may be, shall send to any
person or company directly affected by an order made under subsection (1)
written notice of the order.
2006 c30 s6
Orders subject to terms
or conditions
34(1) A decision made by the Commission may be made
subject to those terms and conditions or either of them that the Commission
considers necessary.
(2) A decision made by the Executive Director may
be made subject to those terms and conditions or either of them that the
Executive Director considers necessary.
1981 cS‑6.1
s22;1988 c7 s1(41)(43);1995 c28 s62
Appeal from decision
35(1) A person or company directly affected by a
decision of the Executive Director may appeal that decision to the Commission.
(2) Notwithstanding
subsection (1), the Commission may, on its own motion, within 30 days from the
day that the Executive Director made a decision, review that decision.
(3) Notwithstanding section 36(4), the Executive
Director may be present and make representations at an appeal of the Executive
Director’s decision.
1981 cS‑6.1
s24;1988 c7 s1(41)(43);1995 c28 ss13,62;
1999 c15 s9
Appeals to the
Commission
36(1) To commence an appeal to the Commission, the
appellant shall, within 30 days from the day on which the written notice of the
decision is served on the appellant, serve a written notice of appeal on the
Secretary either personally or by registered mail.
(2) Notwithstanding
subsection (1), the Commission may, on application by the appellant during the
appeal period prescribed in subsection (1), extend the appeal period if the
Commission considers that it would not be prejudicial to the public interest to
do so.
(3) On
conducting an appeal, the Commission may, by order,
(a) make
any decision that the person who heard the matter in the first instance could
have made and substitute the Commission’s decision for the decision of that
person;
(b) confirm,
vary or reject the decision;
(c) direct
the person whose decision is being appealed to re‑hear the matter.
(4) The
Commission may, if the Commission considers that it is in the public interest
to do so, permit the person whose decision is being appealed to be present and
make representations at the appeal.
(5) Notwithstanding that a person or company
requests an appeal, the decision under appeal takes effect immediately unless
the Commission grants a stay until disposition of the appeal.
1981 cS‑6.1
s25;1984 c64 s6;1988 c7 s1(41);1995 c28 s14
Notice of review
37 Prior to conducting a review referred to
in section 35(2), the Commission shall notify
(a) the
Executive Director, and
(b) any
person or company that, in the opinion of the Commission, is directly affected
by the decision of the Executive Director,
of the Commission’s intention to conduct the review.
1999 c15 s10
Appeal to Court of
Appeal
38(1) A person or company directly affected by a
decision of the Commission, other than a ruling under section 144, may appeal
the decision to the Court of Appeal.
(2) An
appeal under this section shall be commenced by a notice of appeal filed with
the Court of Appeal within 30 days from the day that the Commission sends the
notice of its decision to the person or company appealing the decision.
(3) A
copy of the notice of appeal and supporting documents shall be served on the
Secretary within the 30‑day period referred to in subsection (2).
(4) The
Secretary shall certify to the registrar of the Court of Appeal
(a) the
decision that has been reviewed by the Commission,
(b) the
order of the Commission, together with any statement of reasons for it,
(c) the
record of the proceedings before the Commission, and
(d) all
written submissions to the Commission and other material, if any, that is
relevant to the appeal.
(5) The
practice and procedure in the Court of Appeal in respect of an appeal shall be
the same as on an appeal from a judgment of the Court of Queen’s Bench in an
action.
(6) The
Court of Appeal may
(a) confirm,
vary or reject the decision of the Commission,
(b) direct
the Commission to re‑hear the matter, or
(c) make
any decision that the Commission could have made and substitute its decision
for that of the Commission.
(7) The Commission is the respondent to an appeal
under this section.
1981 cS‑6.1
s26;1982 c32 s4;1988 c7 s1(6);1995 c28 s15
Policy Advisory
Committee
39 The Minister may appoint a committee to be known
as the “Policy Advisory Committee” to advise the Minister and the Commission on
matters referred to the Committee by the Minister.
1981 cS‑6.1
s27;1984 c64 s7;1988 c7 s1(7);1995 c28 s62
Part 2
Investigations
Production of records,
etc. to the Executive Director
40(1) In this section, “party” means
(a) a
registrant;
(b) a
person or company that is exempted by an order made under section 144 from the
requirement to be registered under section 75;
(c) a
reporting issuer;
(d) a
manager or custodian of assets, shares or units of an investment fund;
(e) a
general partner of a person or company referred to in clause (a), (b), (c), (f)
or (i);
(f) a
person or company purporting to distribute securities in reliance on an
exemption
(i) for which the regulations provide that a prospectus is not
required, or
(ii) in an order issued under section 144;
(g) a
transfer agent or registrar for securities of a reporting issuer;
(h) a
director or officer of a reporting issuer;
(i) a
promoter or control person of a reporting issuer;
(j) the
Canadian Investor Protection Fund;
(k) a
clearing agency.
(2) For
any purposes related to the administration of the Alberta securities laws, the
Executive Director may, by an order that is applicable generally or that is
directed to one or more parties, require a party to provide to the Executive
Director the information, documents or records as set out in the order within
the time prescribed in the order.
(3) The Executive Director may require verification
by affidavit that the party has produced to the Executive Director all of the
information, documents and records required pursuant to an order made under
subsection (2).
RSA 2000 cS‑4
s40;2005 c18 s9;2006 c30 s7
Investigation order
41(1) The
Executive Director may, by order, appoint a person to make any investigation
that the Executive Director considers necessary
(a) for
the administration of the Alberta securities laws,
(b) to
assist in the administration of the securities or exchange contract laws of
another jurisdiction,
(c) in
respect of matters relating to trading in securities or exchange contracts in
Alberta, or
(d) in
respect of matters in Alberta relating to trading in securities or exchange
contracts in another jurisdiction.
(2) If
an individual alleges under oath that a person or company has contravened the
Alberta securities laws, the Executive Director may, by order, appoint a person
to make an investigation in respect of the allegation.
(3) In
an order made under subsection (1) or (2), the Executive Director shall
prescribe the scope of the investigation that is to be carried out under the order.
(4) For
the purposes of an investigation ordered under this section, the person
appointed to make the investigation may with respect to the person or company
that is the subject of the investigation, investigate, inquire into and examine
(a) the
affairs of that person or company,
(b) documents,
records, correspondence, communications, negotiations, trades, transactions,
investigations, loans, borrowings and payments to, by, on behalf of or in
relation to or connected with that person or company,
(c) the property, assets or things owned, acquired or
alienated in whole or in part by that person or company or by any person or
company acting on behalf of or as agent for that person or company,
(d) the
assets at any time held by, the liabilities, debts, undertakings and
obligations at any time existing and the financial or other conditions at any
time prevailing in respect of that person or company, and
(e) the
relationship that may at any time exist or have existed between that person or
company and any other person or company by reason of
(i) investments,
(ii) commissions promised, secured or paid,
(iii) interests held or acquired,
(iv) the loaning or borrowing of money, securities or other property,
(v) the transfer, negotiation or holding of securities or exchange
contracts,
(vi) interlocking directorates,
(vii) common control,
(viii) undue influence or control, or
(ix) any other matter not referred to in clauses (i) to (viii).
(5) For the purposes of an investigation under this
section, a person appointed to make the investigation may examine any
documents, records or other things, whether they are in the possession or
control of the person or company in respect of which the investigation is
ordered or of any other person or company.
RSA 2000 cS‑4
s41;2007 c10 s4
Powers of investigators
42(1) The person appointed to make an investigation
under section 41 has the same power as is vested in the Court of Queen’s Bench
for the trial of civil actions
(a) to
summon and enforce the attendance of witnesses,
(b) to
compel witnesses to give evidence on oath or otherwise, and
(c) to
compel witnesses to produce documents, records, securities, exchange contracts,
contracts and things.
(2) A
person appointed to make an investigation under section 41 may make copies or
cause copies to be made of any documents, records, securities, exchange
contracts, contracts or things produced pursuant to subsection (1).
(3) The
failure or refusal of a person summoned as a witness under subsection (1) to
attend, to answer questions or to produce documents, records, securities,
exchange contracts, contracts or things that are in that person’s custody or
possession makes that person, on application to the Court of Queen’s Bench by
the person making the investigation, liable to be committed for contempt by the
Court of Queen’s Bench in the same manner as if that person were in breach of
an order or judgment of that Court.
(4) Notwithstanding
the Alberta Evidence Act, a bank or
any officer or employee of the bank is not exempt from the operation of this
section.
(5) A
person giving evidence at an investigation under section 41 may be represented
by legal counsel.
(6) If
authorized to do so by an order of the Court of Queen’s Bench, a person
conducting an investigation under section 41 may
(a) enter
into and search premises, and
(b) seize
and take possession of any documents, records, securities, exchange contracts,
contracts or things,
of the person or
company whose affairs are being investigated.
(7) An
application for an order under subsection (6) may be made ex parte unless the
Court of Queen’s Bench otherwise directs.
(8) Documents,
records, securities, exchange contracts, contracts or things seized under
subsection (6) shall, at a time and place mutually convenient to the person or
company from whom they were seized and the person making the investigation, be
made available for inspection and copying by that person or company if a
request for an opportunity to inspect or copy is made by that person or company
to the person making the investigation.
(9) Where
(a) documents,
records, securities, exchange contracts, contracts or things are seized under
subsection (6)(b), and
(b) the
matter for which the documents, records, securities, exchange contracts,
contracts or things were seized is concluded,
the Executive Director
shall return those documents, records, securities, exchange contracts,
contracts or things to the person from whom they were seized within 60 days
from the day that the matter is concluded.
(10) If
(a) documents,
records, securities, exchange contracts, contracts or things are seized under
subsection (6)(b), and
(b) the
person from whom the documents, records, securities, exchange contracts,
contracts or things are seized, alleges that the documents, records,
securities, exchange contracts, contracts or things are not relevant in respect
of the matter for which they were seized,
that person may apply
by a notice of motion to the Court of Queen’s Bench for the return of the
documents, records, securities, exchange contracts, contracts or things.
(11) On hearing an application under subsection
(10), the Court of Queen’s Bench shall order the return of any documents,
records, securities, exchange contracts, contracts or things that it determines
are not relevant to the matter for which they were seized.
1981 cS‑6.1
s29;1982 c32 s5;1988 c7 s1(42);
1991 c33 s40;1995 c28 s18
Appointment of experts
43(1) If an investigation is ordered under section
41, the Executive Director may appoint persons having special technical or
other knowledge or skills to assist and be responsible to the person appointed
under section 41.
(2) A
person appointed under subsection (1) shall
(a) examine
documents, records, securities, exchange contracts, contracts and things of the
person or company whose affairs are being investigated, and
(b) perform
other duties,
as required by the person carrying out the investigation.
1981 cS‑6.1
s30;1982 c32 s6;1988 c7 s1(42);
1991 c33 s40;1995 c28 s62
Report to Executive
Director
44(1) Every person appointed under section 41(1) or
(2) shall provide the Executive Director with
(a) a
full and complete report of the investigation including all transcripts of
evidence and material in the person’s possession relating to the investigation,
and
(b) interim
reports as requested by the Executive Director.
(2) A
report that is provided to the Executive Director under subsection (1) is
absolutely privileged and is not admissible in evidence in any action,
proceeding or prosecution.
(3) None
of the following persons are compellable to give evidence in any court or in a
proceeding of a judicial nature concerning any information that comes to the
knowledge of that person in the exercise of the powers, the performance of the
duties or the carrying out of the functions of that person pursuant to this
Part:
(a) a
person appointed to make an investigation under section 41;
(b) the
Commission;
(c) a
member of the Commission;
(d) the
Executive Director;
(e) the
Secretary;
(f) an
employee of the Commission;
(g) a
person referred to in section 16(b).
(4) Notwithstanding subsections (2) and (3), where
the Executive Director considers that it is in the public interest to do so,
the Executive Director may by order at any time authorize the disclosure of any
information, testimony, record, document, report or thing obtained pursuant to
this Part subject to those terms and conditions that the Executive Director may
impose.
1981 cS‑6.1
s31;1988 c7 s1(42);1995 c28 s19
Investigation to be
confidential
45 Anything acquired and all information or
evidence obtained pursuant to an investigation is confidential and shall not be
divulged except
(a) by
a person or company to the person’s or company’s counsel,
(b) where
authorized by the Executive Director, or
(c) as otherwise permitted by the Alberta
securities laws.
1981 cS‑6.1
s34;1988 c7 s1(42);1995 c28 s21;1999 c15 s12;
2000 c17 s36
Information
46(1) If
the Executive Director considers that it would not be prejudicial to the public
interest to do so, the Executive Director may, subject to subsections (2) and
(3), provide information to and receive information from
(a) other
securities or financial regulatory authorities, exchanges, self‑regulatory
bodies or organizations, law enforcement agencies and other governmental or
regulatory authorities in Canada and elsewhere, and
(b) any
person or company acting on behalf of or providing services to the Commission
or the Executive Director.
(2) The Commission or the Executive
Director, or either of them, may, with respect to any personal information
referred to in, dealt with or governed under section 33(a), 34(1)(a)(ii) or
40(1)(e) of the Freedom of Information and Protection of Privacy Act,
collect that information, whether directly from the individual or by some other
method, and disclose that information for the purposes of carrying out any
duties and exercising any powers of the Commission or the Executive Director
under this or any other Act.
(3) The Commission or the Executive
Director may enter into an arrangement or agreement for the purposes of
subsection (2).
(4) Any information received by the
Commission or the Executive Director under this section is confidential and
shall not be disclosed except where authorized by the Executive Director.
RSA 2000 cS‑4
s46;2003 c32 s5
Prevalence over FOIP
46.1(1) Subject
to subsection (2), if anything in sections 44, 45, 46(4), 146 or 221(4), (5),
(6) and (7) is inconsistent or in conflict with the Freedom of Information
and Protection of Privacy Act, those provisions prevail notwithstanding the
Freedom of Information and Protection of Privacy Act.
(2) Where information is collected or
received pursuant to section 44, 45, 46(4), 146 or 221(4), (5), (6) or (7),
subsection (1) ceases to apply in respect of that information after 50 years
has elapsed from the end of the year in which the information was collected or
received.
2003 c32 s5
Order to freeze property
47(1) The Executive Director may make an order as
provided in subsection (2),
(a) if
the Executive Director is about to order an investigation in respect of a
person or company under section 41,
(b) at
any time during or after the carrying out of an investigation under section 41
in respect of a person or company,
(c) if
(i) the Commission has made, or
(ii) the Executive Director has reasonable grounds to believe that the
Commission is about to make,
an order under section 198
in respect of a person or company that trading in securities of an issuer or
trading in exchange contracts shall cease,
(d) if
the Commission has made, or the Executive Director has reasonable grounds to
believe that the Commission is about to make, a decision
(i) suspending or cancelling the registration of any person or
company, or
(ii) affecting the right of any person or company to trade in
securities or exchange contracts,
or
(e) if
there is evidence of a contravention by a person or company of
(i) the Alberta securities laws, or
(ii) of the provision of any statute, other than this Act, that
relates to the trading of securities or exchange contracts.
(2) If
subsection (1) applies, the Executive Director may make an order doing one or
more of the following:
(a) directing
a person or company having on deposit, under control or for safekeeping any
funds, securities, exchange contracts or other property of the person or
company referred to in subsection (1)(a) to (e) to hold the funds, securities,
exchange contracts or other property;
(b) directing
a person or company referred to in subsection (1)(a) to (e) to refrain from withdrawing
its funds, securities, exchange contracts or other property from any other
person or company having any of them on deposit, under control or for
safekeeping;
(c) directing
a person or company referred to in subsection (1)(a) to (e) to hold all funds,
securities, exchange contracts or other property of clients or others in the
person’s or company’s possession or control in trust for any interim receiver,
custodian, trustee, receiver, receiver and manager or liquidator appointed
under the Bankruptcy and Insolvency Act
(Canada), the Judicature Act, the Companies Act, the Business Corporations Act, the Cooperatives Act, the Winding‑up and Restructuring Act
(Canada) or section 48 of this Act.
(3) An
order made under subsection (2) does not take effect until it is served on the
person or company to whom the order is directed.
(4) An
order under subsection (2)
(a) that
is directed to a financial institution applies only to the offices, branches or
agencies of the financial institution named in the order, and
(b) does
not apply to
(i) funds, securities or exchange contracts in a clearing agency, or
(ii) securities in process of transfer by a transfer agent,
unless the order expressly
so states.
(5) A
person or company in receipt of an order given under subsection (2) that is in
doubt as to
(a) the
application of the order to any funds, securities, exchange contracts or other
property, or
(b) a
claim being made to that person or company by any person or company not named
in the order,
may apply to the
Executive Director for direction as to the disposition of the funds,
securities, exchange contracts, other property or claim.
(6) On
the application of a person or company directly affected by a direction given
in an order made under subsection (2)(a), (b) or (c), the Executive Director
may make an order revoking that direction or consenting to the release of any
funds, securities, exchange contracts or other property in respect of which the
order was made under subsection (2)(a), (b) or (c).
(7) In
any of the circumstances mentioned in subsection (1)(a) to (e) the Executive
Director may send to the Registrar of Land Titles or mining recorder a notice
that proceedings are being or are about to be taken that may affect land or
mining claims belonging to the person or company referred to in the notice and
the notice shall
(a) be
registered or recorded against the lands or claims mentioned in it, and
(b) have
the same effect as the registration or recording of a certificate of lis
pendens or a caveat.
(8) The Executive Director may in writing revoke or
modify a notice given under subsection (7).
RSA 2000 cS‑4
s47;2001 cC‑28.1 s469
Appointment of
receivers, managers, trustees or liquidators
48(1) The Executive Director may apply to the Court
of Queen’s Bench for the appointment of a receiver, receiver and manager,
trustee or liquidator of the property of a person or company,
(a) if
the Executive Director is about to order an investigation in respect of the
person or company under section 41,
(b) during
or after an investigation in respect of the person or company under section 41,
(c) if
(i) the Commission has made, or
(ii) the Executive Director has reasonable grounds to believe that the
Commission is about to make,
an order under section 198
that trading in securities of an issuer or trading in exchange contracts shall
cease,
(d) if
(i) the Commission has made, or
(ii) the Executive Director has reasonable grounds to believe that the
Commission is about to make,
a decision suspending or
cancelling the registration of the person or company or affecting the right of
the person or company to trade in securities or exchange contracts,
(e) if
the person or company fails or neglects to comply with the minimum net asset
requirements, investment restrictions, ownership restrictions or capital
requirements prescribed by the regulations for that person or company, or
(f) if
there is evidence of a contravention by the person or company of
(i) the Alberta securities laws, or
(ii) of the provisions of any statute, other than this Act, that
relates to the trading of securities or exchange contracts.
(2) On
an application being made under this section, the Court may appoint a receiver,
receiver and manager, trustee or liquidator of all or any part of the property
of a person or company if the Court is satisfied that it is in the best
interests of
(a) the
creditors of that person or company,
(b) those
persons or companies whose property is in the possession or under the control
of that person or company, or
(c) the
security holders of or subscribers to that person or company.
(3) An
application under subsection (1) may be made ex parte if the Court considers it
proper to do so in the circumstances.
(4) If
an application under this section is made ex parte, the Court may make an order
appointing a receiver, receiver and manager, trustee or liquidator for a period
not exceeding 15 days.
(5) A
receiver, receiver and manager, trustee or liquidator of the property of a
person or company appointed under this section shall be the receiver, receiver
and manager, trustee or liquidator of all or part of the property
(a) owned
by the person or company, or
(b) held
by the person or company on behalf of or in trust for any other person or
company.
(6) The
receiver, receiver and manager, trustee or liquidator shall, if so directed by
the Court,
(a) have
authority to wind up or manage the business and affairs of the person or
company, and
(b) exercise those powers that are necessary or
incidental to the winding‑up or management of the business and affairs of
the person or company.
1981 cS‑6.1
s38;1988 c7 s1(11);1991 c33 s10;1995 c28 s62;
2000 c17 s36
Income and liabilities
of person or company
49 A receiver of the property of a person or
company appointed under section 48 may, subject to the rights of secured
creditors,
(a) receive
income from that property and pay liabilities in respect of that property, and
(b) realize the security of the person or
company on whose behalf the receiver is appointed.
1981 cS‑6.1 s39
Powers of a receiver and
manager
50(1) A receiver and manager of the property of a
person or company appointed under section 48 may carry on the business and
affairs of the person or company and
(a) is
vested with all the powers
(i) in the case of a person, of that person with respect to the
operation of that person’s business and affairs, and
(ii) in the case of a company, of the shareholders and directors of
the company,
and
(b) has,
in addition to those powers provided under clause (a), those powers prescribed
in the order appointing the receiver and manager.
(2) On
an order being made under section 48 appointing a receiver and manager of the
property of a person or company,
(a) in
the case of a person, the person shall not exercise any powers in respect of
the operation of the person’s business and affairs, and
(b) in
the case of a company, the shareholders and the directors of the company shall
not exercise any powers in respect of the company,
except as directed by the receiver and manager.
1981 cS‑6.1 s40
Court order
51 The Court of Queen’s Bench in making an order
under section 48 appointing a receiver or a receiver and manager may provide
for any matter or thing relating to the business and affairs of the person or
company, as the case may be, during the appointment of the receiver or the
receiver and manager.
1981 cS‑6.1 s41
Term of office
52 A receiver or a receiver and manager appointed
under section 48 remains in office until the receiver or receiver and manager
is removed from office or until
(a) the
receiver or receiver and manager winds up the business and affairs of the
person or company pursuant to authority given under section 48, or
(b) a liquidator is appointed to wind up the
business and affairs of the person or company.
1981 cS‑6.1 s42
Fees
53 The fees payable to a receiver or a receiver and
manager for his or her services, expenses and disbursements in connection with
the discharge of the duties of the receiver or receiver and manager
(a) shall
be fixed by the Court of Queen’s Bench from time to time,
(b) shall
be paid,
(i) out of the assets of the person or company in respect of which
the receiver or receiver and manager was appointed, or
(ii) if the assets of the person or company in respect of which the
receiver or receiver and manager was appointed are insufficient for the
purpose, as directed by the Court from the assets of those persons or companies
that benefitted from the appointment of the receiver or receiver and manager,
and
(c) in the case of the winding‑up of the
company, shall rank on the estate equally with the remuneration paid to the
liquidator.
1981 cS‑6.1 s43
Directions from the
Court
54(1) A receiver, receiver and manager, trustee or
liquidator may apply to the Court of Queen’s Bench for directions on any matter
arising with respect to the carrying out of the duties of the receiver,
receiver and manager, trustee or liquidator.
(2) On an application under subsection (1), the
Court may give direction, declare the rights of parties before the Court and
make any further order as it considers necessary.
1981 cS‑6.1 s44
Appointment of a
successor
55 The Court of Queen’s Bench may at any time
revoke the appointment made under section 48 of a receiver, receiver and
manager, trustee or liquidator and appoint another in place of the receiver,
receiver and manager, trustee or liquidator.
1981 cS‑6.1 s45
Funds expended by
Executive Director
56 If the Executive Director expends funds in
respect of the appointment under this Act of a receiver, receiver and manager,
trustee or liquidator that directly relate to a person or company, the amount
expended
(a) is
a debt owing by that person or company to the Government, as the case may be,
and
(b) may be recovered by the Government in the
same manner as any other debt owing to the Crown in right of Alberta.
1981 cS‑6.1
s46;1988 c7 s1(12);1995 c28 s62
Solicitor‑client
privilege
57(1) Nothing in this Part shall be interpreted so as
to affect the privilege that exists between a solicitor and the solicitor’s
client.
(2) If
a person is about to examine or seize under this Act any documents, records,
securities, exchange contracts, contracts or things in the possession of a
lawyer and the lawyer with respect to those documents, records, securities,
exchange contracts, contracts or things claims that a privilege might exist
between the lawyer and the lawyer’s client, the person who was about to examine
or seize the documents, records, securities, exchange contracts, contracts or
things shall, without examining or copying them,
(a) seize
the documents, records, securities, exchange contracts, contracts or things,
(b) seal
the documents, records, securities, exchange contracts, contracts or things in
a marked package so that the package can be identified, and
(c) place
the package in the custody of
(i) the clerk of the Court of Queen’s Bench, or
(ii) a person that the parties agree on.
(3) On
an application being brought by the lawyer, client or the person seizing the
documents, records, securities, exchange contracts, contracts or things, the
Court of Queen’s Bench shall hear the matter in camera and determine whether
the claim of the privilege is proper.
(4) If
the Court of Queen’s Bench determines
(a) that
the claim of privilege is proper, it shall order that the documents, records,
securities, exchange contracts, contracts or things seized be delivered to the
lawyer, or
(b) that
the claim is not proper, it shall order that the documents, records,
securities, exchange contracts, contracts or things be delivered to the person
who seized them.
(5) The
notice of the application referred to in subsection (3) and the supporting
documents shall be served on the Executive Director, the person having custody
of the package and the parties to the application other than the one making the
application not less than 3 days before the application is to be heard.
(6) On
being served with the notice of the application and the supporting documents,
the person having custody of the package shall promptly deliver the package to
the custody of the clerk of the Court of Queen’s Bench.
(7) In
determining the matter before it, the Court may open the package and inspect
its contents.
(8) Following its inspection of the package and its
contents under subsection (7), the Court shall reseal the contents in the
package.
1981 cS‑6.1
s47;1982 c32 s9;1988 c7 s1(42);1991 c33 s40;1995 c28 s62
Part 3
Record Keeping and
Compliance Review
Review and
examination
58(1) Notwithstanding anything in section 59 or 60,
the Executive Director may in writing appoint a person to examine the financial
affairs, books, records and other documents of the following for the purpose of
determining if that person or company is complying with Alberta securities
laws:
(a) a
registrant;
(b) a
reporting issuer;
(c) a
director, officer or promoter of a reporting issuer;
(d) a
transfer agent of a reporting issuer;
(e) a
recognized exchange;
(f) a
recognized self‑regulatory organization;
(g) a
recognized clearing agency;
(h) a
recognized quotation and trade reporting system;
(i) a
manager or a custodian of assets, shares or units of an investment fund.
(2) Where
a person carries out an examination under subsection (1), that person shall
prepare those financial or other statements and reports as may be required by
the Executive Director.
(3) A
person carrying out an examination under this section may
(a) enter
into business premises during business hours,
(b) inquire
into and examine all records, securities, exchange contracts, cash, documents,
bank accounts, vouchers and correspondence of the person or company whose
financial affairs are being examined, and
(c) make
copies of any item referred to in clause (b).
(4) No
person or company that is the subject of an examination under this section
shall withhold, destroy, conceal or refuse to give any information or thing
reasonably required for the purpose of the examination.
(5) A person or company that is the subject of an
examination under this section shall pay those fees as may be prescribed by
regulation.
RSA 2000 cS‑4
s58;2005 c18 s11;2006 c30 s8
Recognized exchanges,
and self-regulatory organizations
59(1) Every recognized exchange shall appoint an
auditor for the exchange.
(2) Where
the Executive Director considers it appropriate, a recognized self‑regulatory
organization shall appoint an auditor for the self‑regulatory
organization.
(3) Every
recognized exchange and every recognized self‑regulatory organization
shall select a panel of auditing firms for their members.
(4) Every
recognized exchange and every recognized self‑regulatory organization
shall require each of its members to appoint an auditor chosen from the panel
of auditing firms selected under subsection (3).
(5) The
auditor of a member shall
(a) in
accordance with generally accepted auditing standards, make an examination of
the annual financial statements and regulatory filings of the member as
provided for by the bylaws, rules, regulations, policies, procedures,
interpretations or practices, as the case may be, that are applicable to the
member, and
(b) report on the financial affairs of the
member to the recognized exchange or recognized self‑regulatory
organization, as the case may be, in accordance with professional reporting
standards.
1995 c28 s24
Registrants
60(1) Every registrant whose financial affairs are
not subject to examination under section 59 shall keep those books and records
that are necessary for the proper recording of the registrant’s business
transactions and financial affairs.
(2) A
registrant shall appoint an auditor who satisfies those requirements as may be
established by the Executive Director.
(3) The
auditor of a registrant shall
(a) in
accordance with generally accepted auditing standards, make an examination of
the annual financial statements and other regulatory filings of the registrant,
and
(b) prepare
a report on the financial affairs of the registrant in accordance with
professional reporting standards.
(4) Subject
to the regulations, a registrant shall file the report referred to in
subsection (3) with the Executive Director together with
(a) the
registrant’s annual financial statements prepared in accordance with generally
accepted accounting principles, and
(b) the
registrant’s other regulatory filings.
(5) The
annual financial statements and regulatory filings shall be certified by the
registrant or an officer or partner of the registrant.
(6) A registrant shall file with the Executive
Director any other information as the Executive Director may require in a form
that is acceptable to the Executive Director.
1995 c28 s24
Record‑keeping
60.1(1) This
section applies to every recognized exchange, recognized self‑regulatory
organization, recognized clearing agency, recognized quotation and trade
reporting system and reporting issuer, and every officer, director, promoter
and transfer agent of a reporting issuer.
(2) Every
person or company to which this section applies shall
(a) maintain
(i) the books and records that are necessary to record properly its
business transactions and financial affairs and the transactions that it
executes on behalf of others, and
(ii) any other books and records that may be required under the
Alberta securities laws,
and
(b) deliver
to the Commission or the Executive Director any books and records or other information
that the Commission or the Executive Director may require.
2005 c18 s12
Continuous disclosure
reviews
60.2(1) The
Executive Director may conduct a review of the disclosures that have been made
or ought to have been made by a reporting issuer or investment fund.
(2) A
reporting issuer or investment fund that is subject to a review under this
section shall, as required by the Executive Director, deliver to the Executive
Director any information and documents reasonably relevant to the review.
(3) A
reporting issuer or investment fund, or any person or company acting on behalf
of a reporting issuer or investment fund, shall not make any representation
that the Commission has in any way expressed an opinion or passed judgment on
the merits of the disclosure record of the reporting issuer or investment fund.
2005 c18 s12
Part 4
Exchanges, Self‑regulatory
Organizations and Clearing Agencies
Member of exchanges,
etc.
61 Any reference in this Part
(a) to
a member of an exchange includes
(i) any holder of a security in an organization that carries on
business as an exchange, and
(ii) any person or company that agrees to comply with the bylaws,
rules, regulations, policies, procedures, interpretations and practices of the
exchange and is granted trading access on or through the facilities of the
exchange;
(b) to
a member of a self‑regulatory organization includes any person or company
carrying on business as an investment dealer that agrees to be regulated by
that self‑regulatory organization;
(c) to
a representative of a member of an exchange includes
(i) any person or company approved by the exchange as a partner,
officer, director, salesperson, trader or assistant trader of the member, and
(ii) any employee of the member not otherwise referred to in subclause
(i);
(d) to
a representative of a member of a self‑regulatory organization includes
(i) any person or company approved by the self‑regulatory
organization as a partner, officer, director, salesperson, branch manager,
assistant branch manager or co‑branch manager of the member, and
(ii) any employee of the member not otherwise
referred to in subclause (i).
2000 c17 s8
Recognition of exchange
62(1) No person or company shall carry on business as
an exchange in Alberta unless the person or company is recognized by the
Commission as an exchange.
(2) The
Commission may, on the application of a person or company proposing to carry on
business as an exchange in Alberta, recognize the person or company as an
exchange if the Commission considers that it would not be prejudicial to the
public interest to do so.
(3) The recognition of an exchange under this
section is to be made in writing and is subject to any terms and conditions
that the Commission may impose.
1981 cS‑6.1
s52;1984 c64 s11;1988 c7 s1(41);
1991 c33 s12;1995 c28 s25
Operation of recognized
exchange
63(1) The Commission, after giving a recognized
exchange an opportunity to be heard, may
(a) suspend
or cancel its recognition as a recognized exchange, or
(b) remove,
vary or replace any terms or conditions that were previously imposed on its
recognition as a recognized exchange,
if the Commission
considers that it is in the public interest to do so.
(2) A
recognized exchange shall regulate the operations and the standards of practice
and business conduct of its members and their representatives in accordance
with the bylaws, rules, regulations, policies, procedures, interpretations and
practices of the exchange.
(3) The
authority of an exchange to regulate the operations and the standards of
practice and business conduct of its members and their representatives under
subsection (2) extends to
(a) any
former member,
(b) any
former representative of a member, and
(c) any
former representative of a former member,
with respect to that
person’s operations and conduct while a member of the exchange or a
representative of a member of the exchange.
(4) The
Commission may, if the Commission considers that it is in the public interest
to do so, make any decision
(a) that
the Commission considers is necessary to ensure that issuers whose securities
are listed and posted for trading on a recognized exchange comply with the
Alberta securities laws;
(b) respecting
the manner in which a recognized exchange carries on business;
(c) respecting
any bylaw, rule, regulation, policy, procedure, interpretation or practice of a
recognized exchange;
(d) respecting
trading on or through the facilities of a recognized exchange;
(e) respecting
any security that is listed and posted for trading on a recognized exchange;
(f) respecting
any exchange contract that is trading on a recognized exchange.
(5) Every
recognized exchange shall
(a) keep
a record showing the time at which each transaction on the exchange took place,
and
(b) supply to any customer of any member of the
exchange, on production of a written confirmation of any transaction with the
member, particulars of the time at which the transaction took place and
verification or otherwise of the matters set out in the confirmation.
1995 c28 s25;2000 c17
ss9,36
Recognized
self-regulatory organization
64(1) The Commission may, on the application of a
self‑regulatory organization, recognize the self‑regulatory
organization if the Commission considers that it would not be prejudicial to
the public interest to do so.
(2) The
recognition of a self‑regulatory organization under this section shall be
made in writing and is subject to any terms and conditions that the Commission
may impose.
(3) The
Commission, after giving a recognized self‑regulatory organization an
opportunity to be heard, may
(a) suspend
or cancel its recognition as a recognized self‑regulatory organization,
or
(b) remove, vary or replace any terms or
conditions that were previously imposed on its recognition as a recognized self‑regulatory
organization,
if the Commission
considers that it is in the public interest to do so.
(4) A
recognized self‑regulatory organization shall regulate the operations and
the standards of practice and business conduct of its members and their
representatives in accordance with the bylaws, rules, regulations, policies,
procedures, interpretations and practices of the self‑regulatory
organization.
(5) The
authority of a self‑regulatory organization to regulate the operations
and the standards of practice and business conduct of its members and their
representatives under subsection (4) extends to
(a) any
former member,
(b) any
former representative of a member, and
(c) any
former representative of a former member,
with respect to that
person’s operations and conduct while a member of the self‑regulatory
organization or a representative of a member of the self‑regulatory
organization.
(6) The Commission may, if the Commission considers
that it is in the public interest to do so, make any decision with respect to
any bylaw, rule, regulation, policy, procedure, interpretation or practice of a
recognized self‑regulatory organization.
1995 c28 s25;2000 c17
s10
Councils, committees,
etc.
65(1) A recognized exchange or a recognized self‑regulatory
organization may,
(a) with
the prior approval of the Commission, and
(b) subject
to any terms and conditions that the Commission may determine to be necessary
or appropriate in the public interest,
establish a council,
committee or other ancillary body.
(2) A
recognized exchange or a recognized self‑regulatory organization may
authorize the council, committee or other ancillary body to administer
regulatory or self‑regulatory powers or responsibilities or both.
(3) Where
an exchange or self‑regulatory organization establishes a council,
committee or other ancillary body to administer regulatory or self‑regulatory
powers or responsibilities,
(a) that
council, committee or ancillary body
(i) is included in the recognition of the recognized exchange or
recognized self‑regulatory organization, and
(ii) is subject to the same terms or conditions, if any, that are
imposed by the Commission on the recognized exchange or recognized self‑regulatory
organization,
and
(b) the
recognition of that council, committee or ancillary body is, unless otherwise
directed by the Commission, suspended, restricted or cancelled, as the case may
be, when the recognition of the recognized exchange or recognized self‑regulatory
organization is suspended, restricted or cancelled.
(4) The provisions of the Alberta securities laws
that apply to a recognized exchange or a recognized self‑regulatory
organization also apply with any necessary modifications to a council,
committee or ancillary body established under this section by that recognized
exchange or recognized self‑regulatory organization.
1995 c28 s25;2000 c17
s11
Assignment of duties of
the Commission or Executive Director
66(1) The Commission may by order, subject to any
terms and conditions that the Commission may impose, authorize a recognized
exchange or recognized self‑regulatory organization to do any act or
thing required or permitted to be done by the Commission under Part 5 or the
regulations made in respect of that Part.
(2) The
Executive Director, with the approval of the Commission, may, subject to any
terms or conditions that the Executive Director may impose, by order authorize
a recognized exchange or recognized self‑regulatory organization to do
any act or thing required or permitted to be done by the Executive Director
under Part 5 or the regulations made in respect of that Part.
(3) Notwithstanding
that the Commission or the Executive Director has given an authorization under
this section, the Commission or the Executive Director may do the act or thing
in respect of which the authorization was given.
(4) The
Commission or, with the approval of the Commission, the Executive Director may
at any time revoke or vary, in whole or in part, an authorization made under
this section.
(5) Neither the Commission nor the Executive Director
shall revoke or vary an authorization made under this section without giving
the recognized exchange or recognized self‑regulatory organization an
opportunity to have a hearing before the Commission.
1995 c28 s25
Recognized clearing
agency
67(1) The Commission may, on the application of a
clearing agency, recognize the clearing agency if the Commission considers that
it would not be prejudicial to the public interest to do so.
(2) The
recognition of a clearing agency under this section is to be made in writing
and is subject to any terms and conditions that the Commission may impose.
(3) The
Commission, after giving a recognized clearing agency an opportunity to be
heard, may
(a) suspend
or cancel its recognition as a recognized clearing agency, or
(b) remove,
vary or replace any terms or conditions that were previously imposed on its
recognition as a recognized clearing agency,
where the Commission
considers that it is in the public interest to do so.
(4) The Commission may, if the Commission considers
that it is in the public interest to do so, make any decision with respect to
any bylaw, rule, regulation, policy, procedure, interpretation or practice of a
recognized clearing agency.
1995 c28 s25
Recognized quotation and
trade reporting systems
68(1) The Commission may, on the application of a
quotation and trade reporting system, recognize the quotation and trade
reporting system if the Commission considers that it would not be prejudicial
to the public interest to do so.
(2) The
recognition of a quotation and trade reporting system under this section shall
be made in writing and is subject to any terms and conditions that the
Commission may impose.
(3) The
Commission, after giving a quotation and trade reporting system the opportunity
to be heard, may
(a) suspend
or cancel its recognition as a recognized quotation and trade reporting system,
or
(b) remove,
vary or replace any terms or conditions that were previously imposed on its
recognition as a recognized quotation and trade reporting system,
where the Commission
considers that it is in the public interest to do so.
(4) No person or company shall carry on business as
a quotation and trade reporting system or facilitate transactions of securities
or exchange contracts by means of an operation similar in nature to a quotation
and trade reporting system unless the person or company is recognized under
this section as a quotation and trade reporting system.
1999 c15 s13;2000 c17
s12
Personal information
68.1(1) In
this section, “personal information” means personal information as defined in
the Personal Information Protection Act other than business contact
information to which that Act does not apply by virtue of section 4(3)(d) of
that Act.
(2) A recognized exchange or recognized
self‑regulatory organization may, without the consent of an individual,
(a) collect
personal information about that individual, whether directly from the
individual or from or through a registrant or by any other method, and
(b) use
and disclose that information
for the purposes of an
investigation or the suppression or prevention of fraud, market manipulation or
unfair trading practices or for breaches of rules, regulations, policies or
bylaws of the recognized exchange or of the recognized self‑regulatory
organization or of any decisions of the Commission or the Executive Director
relating to either or both of the following:
(c) the
integrity of securities trading on exchanges, quotation and trade reporting
systems or alternative trading systems;
(d) the business conduct and activities of the
members of the recognized exchange or of the recognized self‑regulatory
organization and their representatives.
2003 cP‑6.5 s72
Powers re hearings, etc.
69(1) Where a recognized exchange, a recognized self‑regulatory
organization or a recognized quotation and trade reporting system is empowered
under the bylaws or rules of the exchange, self‑regulatory organization
or quotation and trade reporting system, as the case may be, to conduct
hearings, the following applies for the purposes of a hearing:
(a) a
person conducting a hearing has the same power as is vested in the Court of
Queen’s Bench for the trial of civil actions
(i) to summon and enforce the attendance of witnesses,
(ii) to compel witnesses to give evidence on oath or otherwise, and
(iii) to compel witnesses to produce documents, records, securities,
exchange contracts, contracts and things;
(b) the
failure or refusal of a person summoned as a witness under clause (a) to
attend a hearing, to answer questions or to produce documents, records,
securities, exchange contracts, contracts and things that are in that person’s
custody or possession makes that person, on application to the Court of Queen’s
Bench by the person conducting the hearing, liable to be committed for contempt
by the Court of Queen’s Bench in the same manner as if that person were in
breach of an order or judgment of that Court;
(c) a
person conducting a hearing may take evidence under oath;
(d) a
person conducting a hearing or a person authorized by a person conducting a
hearing may administer oaths for the purpose of taking evidence;
(e) the
exchange, self‑regulatory organization or quotation and trade reporting
system may, on behalf of a person conducting a hearing,
(i) summon and enforce the attendance of witnesses, and
(ii) make applications to the Court of Queen’s Bench under clause (b);
(f) the
provisions of the Alberta Rules of Court
compelling the attendance of witnesses, including provisions relating to the
payment of conduct money, apply in respect of the conduct of hearings referred
to in this section.
(2) Where an exchange, a self‑regulatory
organization or a quotation and trade reporting system referred to in
subsection (1) has made a decision after conducting a hearing, the exchange,
self‑regulatory organization or quotation and trade reporting system, as
the case may be, may at any time file a certified copy of that decision with
the clerk of the Court of Queen’s Bench, and on being filed with the clerk of
the Court of Queen’s Bench that decision has the same force and effect as if it
were a judgment of the Court of Queen’s Bench.
2000 c17 s13
Appointment of
receivers, managers, trustees or liquidators
70(1) A recognized exchange or a recognized self‑regulatory
organization may apply to the Court of Queen’s Bench for the appointment of a
receiver, receiver and manager, trustee or liquidator for all or part of the
undertaking and affairs of a member of that exchange or self‑regulatory
organization.
(2) On
an application being made under this section, the Court may appoint a receiver,
receiver and manager, trustee or liquidator of all or any part of the property
of the member if the Court is satisfied that it is in the best interests of
(a) the
recognized exchange or recognized self‑regulatory organization,
(b) the public,
(c) those
persons or companies whose property is in the possession or under the control
of the member,
(d) the
security holders or partners of the member, or
(e) the
creditors of the member.
(3) An
application under subsection (1) may be made ex parte if the Court considers it
proper to do so in the circumstances.
(4) If
an application under this section is made ex parte, the Court may make an order
appointing a receiver, receiver and manager, trustee or liquidator for a period
not exceeding 15 days.
(5) A
receiver, receiver and manager, trustee or liquidator of the property of a
member appointed under this section shall be the receiver, receiver and
manager, trustee or liquidator of all or part of the property
(a) owned
by the member, or
(b) held
by the member on behalf of or in trust for any other person or company.
(6) The
receiver, receiver and manager, trustee or liquidator shall, if so directed by
the Court,
(a) have
authority to wind up or manage the business and affairs of the member, and
(b) exercise
those powers that are necessary or incidental to the winding‑up or
management of the business and affairs of the member.
(7) Sections 49 to 55, with any necessary
modifications, apply in respect of a receiver, receiver and manager, trustee or
liquidator, as the case may be, appointed under this section.
2000 c17 s13
Acting as an exchange
when not so recognized
71(1) If a person or company is not carrying on
business as an exchange but is carrying on business as a quotation and trade
reporting system or is otherwise facilitating transactions of securities or
exchange contracts, the Commission may, if it considers it to be in the public
interest to do so, make an order
(a) declaring
that the person or company is carrying on the business of an exchange, and
(b) directing
the person or company, as the case may be,
(i) to cease carrying on business as a quotation and trade reporting
system or otherwise facilitating transactions of securities or exchange
contracts,
(ii) not to carry on business as a quotation and trade reporting
system unless the person or company is recognized under section 68 as a
quotation and trade reporting system, and
(iii) not to carry on business as an exchange unless the person or
company is recognized under section 62 as an exchange.
(2) The
Commission may make an order under this section on its own motion or on the
application of an interested person or company.
(3) While
a person or company is subject to an order made under subsection (1), that
person or company shall not carry out any functions or duties in any manner
that
(a) contravenes
that order, or
(b) is not in compliance with that order.
2000 c17 s13
Voluntary surrender of
recognition
72 On application by a recognized exchange,
a recognized self‑regulatory organization, a recognized clearing agency
or a recognized quotation and trade reporting system, the Commission may
accept, subject to any terms and conditions that the Commission may impose, the
voluntary surrender of the recognition of the exchange, self‑regulatory
organization, clearing agency or quotation and trade reporting system if the
Commission considers that it would not be prejudicial to the public interest to
accept the surrender of the recognition.
1995 c28 s25;1999 c15
s14
Review
73(1) A person or company directly affected by, or by
the administration of, a direction, decision, order or ruling made under a
bylaw, rule, regulation, policy, procedure, interpretation or practice of a
recognized exchange, recognized self‑regulatory organization, recognized
clearing agency or recognized quotation and trade reporting system may appeal
that direction, decision, order or ruling to the Commission.
(2) Section
36 applies to an appeal made under this section.
(3) Notwithstanding section 36(4), where there is
an appeal to the Commission of a direction, decision, order or ruling made by a
recognized exchange, recognized self‑regulatory organization or
recognized quotation and trade reporting system, that exchange, self‑regulatory
organization or quotation and trade reporting system may be present and make
representations at the appeal.
1995 c28 s25;1999 c15
s15;2000 c17 s14
74 Repealed 2005 c18 s13.
Part 5
Registration
Registration
75(1) No person or company shall
(a) trade
in a security or an exchange contract or act as an underwriter unless the
person or company is registered with the Executive Director as
(i) a dealer,
(ii) a salesperson, or
(iii) a partner, a director or an officer of a registered dealer that
acts on behalf of the dealer,
or
(b) act
as an advisor unless the person or company is registered with the Executive
Director as
(i) an advisor, or
(ii) a partner, an advising employee or an officer of a registered
advisor that acts on behalf of the advisor.
(2) While
a person’s or company’s registration under this section is subject to any terms
or conditions, that person or company shall not carry out any functions or
duties for which the person or company is registered in any manner that
(a) contravenes
any of those terms or conditions, or
(b) is
not in compliance with those terms or conditions.
(3) Repealed
2003 c32 s6.
(4) A
person or company applying for registration under this section shall not trade
in a security or exchange contract or act as an underwriter or advisor until
registration has been granted.
(5) The
termination of the employment of a salesperson with a registered dealer or the
employment of an advising employee with a registered advisor shall operate as a
suspension of the registration of the salesperson or advising employee until
(a) the
Executive Director has been notified by another registered dealer or another
registered advisor of the employment of the salesperson or advising employee by
that other registered dealer or registered advisor, and
(b) the
reinstatement of the registration has been approved by the Executive Director.
(6) The
Executive Director may designate as “non‑trading” any employee or class
of employees of a registered dealer that does not usually trade in securities
or exchange contracts.
(7) A designation made under subsection (6) may be
cancelled as to any employee or class of employees if the Executive Director is
satisfied that the employee or any member of the class of employees should be registered
under this Part.
RSA 2000 cS‑4
s75;2003 c32 s6
Registration by
Executive Director
76(1) Unless it appears to the Executive Director
that
(a) an
applicant is not suitable for registration, renewal of registration,
reinstatement of registration or amendment of registration, or
(b) the
proposed registration, renewal of registration, reinstatement of registration
or amendment of registration is objectionable,
the Executive Director
shall grant to the applicant the registration, renewal of registration,
reinstatement of registration or amendment of registration being applied for.
(2) The
Executive Director may restrict a registration by imposing terms and conditions
on the registration and, without limiting the generality of these powers, may
(a) restrict
the duration of the registration, and
(b) restrict
the registration to trades in certain securities or exchange contracts or a
certain class of securities or exchange contracts.
(3) The Executive Director shall not refuse to
grant, renew, reinstate or amend registration or impose terms and conditions on
it without giving the registrant or applicant an opportunity to be heard.
RSA 2000 cS‑4
s76;2006 c30 s9
77 Repealed 2006 c30 s10.
Surrender of
registration
78(1) If
a registrant applies to surrender its registration, the Executive Director
shall accept the surrender unless the Executive Director considers it
prejudicial to the public interest to do so.
(2) On
receiving an application under subsection (1), the Executive Director may,
without providing an opportunity to be heard, suspend the registration or
impose conditions or restrictions on the registration.
RSA 2000 cS‑4
s78;2003 c32 s7;2006 c30 s11
79 Repealed 2006 c30 s12.
80 Repealed 2006 c30 s13.
81 Repealed 2006 c30 s14.
Further information
82 The Executive Director may require one or more
of the following:
(a) that
further information or material be submitted by an applicant or a registrant
within a specified time;
(b) that
there be verification by affidavit or otherwise of any information or material
then or previously submitted;
(c) that
(i) the applicant or the registrant, or
(ii) any partner, officer, director, governor or trustee of, or any
person performing a like function for, or any employee of the applicant or
registrant,
submit
to examination under oath by a person designated by the Executive Director.
1981 cS‑6.1
s61;1988 c7 s1(43);1995 c28 s62
Non‑residents
83(1) The Executive Director may refuse registration
to an individual if the Executive Director is satisfied, on the basis of the
statements in the application or from any other source of information, that the
applicant
(a) has
not been a resident of Canada for at least one year immediately prior to the
date the application is made,
(b) is
not a resident of Alberta at the date the application is made, or
(c) does
not intend to make the applicant’s permanent home in Alberta if the application
is granted.
(2) Notwithstanding
subsection (1), an individual may be registered if at the date the application
is made that individual
(a) is
registered in a capacity corresponding to that of a dealer, advisor,
underwriter or salesperson under the laws of a province or territory governing
securities or exchange contracts, and
(b) has
been so registered for a period of not less than one year immediately preceding
the date the application is made.
(3) The
Executive Director may refuse registration to a company or person other than an
individual if the Executive Director is satisfied, on the basis of the statements
in the application or from any other source of information available to the
Executive Director, that one or more of its officers or directors
(a) has
not been a resident of Canada for at least one year immediately prior to the
date the application is made,
(b) is
not a resident of Alberta at the date the application is made, or
(c) does
not intend to make the officer’s or director’s permanent home in Alberta if the
application is granted.
(4) Notwithstanding
subsection (3), a company or person other than an individual may be registered
if at the date the application is made one or more of its officers or directors
not resident in Alberta is registered in a capacity corresponding to that of a
dealer, advisor, underwriter or salesperson under the laws of a jurisdiction
where the dealer, advisor, underwriter or salesperson has been so registered
for a period of not less than one year immediately preceding the date the
application is made.
(5) For
the purposes of this section, an individual is not deemed to have given up the
individual’s residence in Canada or Alberta, as the case may be, by reason only
of the individual’s absence
(a) while
serving as a member of the Canadian Forces, or
(b) while attending a university, college,
school, institute or other educational institution.
1981 cS‑6.1
s62;1982 c32 s11;1988 c7 s1(43);1991 c33 s15;
1995 c28 s62
84 to 89 Repealed
2005 c18 s14.
Part 7
Trading in Securities and
Exchange Contracts Generally
Requirements for confirmation of trade
90(1) Every registered dealer who has acted as
principal or agent in connection with any trade in a security or an exchange
contract shall promptly send to the customer a written confirmation of the
transaction prepared in accordance with the regulations.
(2) Every
dealer who has acted as agent in connection with a trade in a security or an
exchange contract shall, at the request of the Executive Director, promptly
(a) make
a reasonable inquiry in order to provide to the Executive Director particulars
that are sufficient to identify, and
(b) provide
to the Executive Director the name of and those particulars arising from the
inquiry that are sufficient to identify,
the person or company from, to or through whom the security
or exchange contract was bought or sold.
1981 cS‑6.1
s68;1984 c64 s13;1988 c7 s1(43);1991 c33 s19;
1994 c23 s43;1995 c28 s62
Attendance on or calls
to residences
91(1) The Executive Director may, by order, suspend,
cancel, restrict or impose terms and conditions on the right of any person or
company or class of persons or companies named or described in the order to
(a) attend
at a residence, or
(b) call
to a residence by telephone,
for the purpose of
trading in any security or exchange contract or any class of securities or
exchange contracts.
(2) The Executive Director shall not make an order
under subsection (1) without giving the person or company or class of persons
or companies affected an opportunity to have a hearing before the Executive
Director.
1981 cS‑6.1
s69;1988 c7 s1(43);1991 c33 s20;1995 c28 s62
Prohibitions respecting
representations
92(1) Unless otherwise permitted by the Executive
Director, no person or company shall represent that the person or company or
any other person or company will
(a) resell
or repurchase a security,
(b) refund
any purchase price of a security,
(c) refund
all or any margin or premium paid in respect of an exchange contract, or
(d) assume
all or part of an obligation under an exchange contract.
(2) Subsection
(1) does not apply to a security that carries or is accompanied with
(a) an
obligation of the issuer to redeem or repurchase the security, or
(b) a
right of the owner of the security to require the issuer to redeem or
repurchase the security.
(3) Subject
to the regulations, no person or company, with the intention of effecting a
trade in a security or exchange contract, shall
(a) give
any undertaking relating to the future value or price of the security or
exchange contract,
(b) except
with the written permission of the Executive Director, make any representation
(i) that the security will be listed on any exchange or quoted on any
quotation and trade reporting system, or
(ii) that application has been or will be made to list the security on
any exchange or quote the security on any quotation and trade reporting system,
(A) unless
(I) the securities being traded, and
(II) securities of the same issuer,
are
currently listed on an exchange or quoted on a quotation and trade reporting
system, or
(B) unless the exchange or quotation and trade
reporting system has granted approval to the listing or quoting of the
securities, conditional or otherwise, or has consented to, or indicated that it
does not object to, the representation,
or
(c) repealed
2005 c18 s15;
(d) engage
in an unfair practice.
(4) No
person shall represent that the person is offering to trade in a security
(a) at
the market price, or
(b) at
a price related to the market price,
unless the person reasonably believes that a market for the
security exists that is not made, created or controlled by the person, the
person’s employer or an affiliate or by a person or company for whom the person
is acting in the transaction.
(4.1) No person or company shall make a
statement that the person or company knows or reasonably ought to know
(a) in
any material respect and at the time and in the light of the circumstances in
which it is made,
(i) is misleading or untrue, or
(ii) does not state a fact that is required to be stated or that is
necessary to make the statement not misleading,
and
(b) would
reasonably be expected to have a significant effect on the market price or
value of a security or an exchange contract.
(5) For the purposes of this section,
“unfair practice” means any one or more of the following:
(a) putting
unreasonable pressure on a person to purchase, hold or sell a security or an
exchange contract;
(b) taking
advantage of a person’s inability or incapacity to reasonably protect his or
her own interest because of physical or mental infirmity, ignorance, illiteracy,
age or inability to understand the character, nature or language of any matter
relating to a decision to purchase, hold or sell a security or an exchange
contract;
(c) imposing
terms or conditions in respect of a transaction that are harsh, oppressive or
excessively one‑sided.
RSA 2000 cS‑4
s92;2003 c32 s12;2005 c18 s15
Prohibited transaction
93 No person or company shall, directly or
indirectly, engage or participate in any act, practice or course of conduct
relating to a security or exchange contract that the person or company knows or
reasonably ought to know will
(a) result
in or contribute to
(i) a false or misleading appearance of trading activity in a
security or an exchange contract, or
(ii) an artificial price for a security or an exchange contract,
or
(b) perpetrate
a fraud on any person or company.
RSA 2000 cS‑4
s93;2005 c18 s16
Duty to comply with
Commission decisions
93.1 A person or company shall
comply with decisions of the Commission or the Executive Director made under
Alberta securities laws.
2005 c18 s17
Duty to comply with
undertaking
93.2 A person or company that gives a written
undertaking to the Commission or the Executive Director shall comply with the
undertaking.
2005 c18 s17
Front running
93.3(1) In
this section, “material order information” means information that relates to
(a) the
intention of a person or company responsible for making decisions about an
investment portfolio to trade a security on behalf of the investment portfolio,
(b) the
intention of a registrant trading on behalf of an investment portfolio to trade
a security on behalf of the investment portfolio, or
(c) an
unexecuted order, or the intention of any person or company to place an order,
to trade a security,
and that, if
disclosed, would reasonably be expected to affect the market price of the
security.
(2) A
person or company that knows of material order information shall not, and shall
not recommend or encourage another person to,
(a) purchase
or sell the securities to which the material order information relates,
(b) acquire,
dispose of, or exercise a put or call option or other right or obligation to
purchase or sell the securities,
(c) enter
into a related financial instrument or acquire or dispose of rights or
obligations under a related financial instrument, or
(d) change
that person’s
(i) direct or indirect beneficial ownership of, or control or
direction over,
(A) the securities, or
(B) a put or call option or other right or
obligation to purchase or sell the securities,
or
(ii) interest in, or rights or obligations associated with, a related
financial instrument.
(3) A
person or company that knows of material order information shall not inform
another person or company of the material order information unless it is
necessary in the course of the person’s or company’s business.
2005 c18 s17
Obstruction of justice
93.4(1) A
person or company shall not, and shall not attempt to, destroy, conceal or
withhold any information, property or thing reasonably required for a hearing,
review or investigation under this Act.
(2) A
person or company contravenes subsection (1) if the person or company knows or
ought reasonably to know that a hearing, review or investigation is to be
conducted and takes any action referred to in subsection (1) before the
hearing, review or investigation.
2005 c18 s17
Dealer as principal
94(1) If a registered dealer, with the intention of
effecting a trade in a security with any person or company other than another
registered dealer,
(a) proposes
to act in the trade as a principal, and
(b) makes
any statement in writing to the person or company in respect of the security,
the registered dealer
shall disclose in the statement that the registered dealer acts as a principal.
(2) A
statement made under subsection (1) shall be made by the registered dealer
before the registered dealer
(a) enters
into a contract for the sale or purchase of the security, or
(b) accepts
payment or receives any security or other consideration under or in
anticipation of the contract,
whichever occurs
first.
(3) A
statement made in compliance with this section or the regulations that a
registered dealer proposes to act or has acted as principal in connection with
a trade in a security does not prevent that dealer from acting as agent in
connection with a trade of the security.
(4) This section does not apply to trades in
respect of which the regulations provide that registration is not required.
RSA 2000 cS‑4
s94;2005 c18 s18
Disclosure by advisors
95(1) Subject to the regulations, a registered
advisor shall cause to be printed
(a) in
a conspicuous position on all printed material issued, published or sent out by
the advisor in which the advisor recommends that a specific security be
purchased, sold or held, and
(b) in
type not less legible than that used in the body of the printed matter,
a full and complete
statement of any financial or other interest that
(c) the
advisor, or
(d) any
partner, director, officer, person or company that,
(i) if the advisor is a reporting issuer, is an insider of the
advisor, or
(ii) if the advisor is not a reporting issuer, would be an insider of
the advisor if the advisor were a reporting issuer,
may have either
directly or indirectly in any securities referred to in the printed matter or
in the sale or purchase of the securities.
(2) A
statement made under subsection (1) concerning
(a) the
registered advisor, or
(b) any
partner, director, officer, person or company referred to in subsection (1)(d),
shall include at least
the following:
(c) any
ownership, beneficial or otherwise, that any of them may have in respect of the
securities or in any securities issued by the same issuer;
(d) any
option that any of them has in respect of the securities and the terms of the
option;
(e) any
commission or other remuneration that any of them has received or may expect to
receive from any person or company in connection with any trade in the
securities;
(f) any
financial arrangement relating to the securities that any of them has with any
person or company;
(g) any financial arrangement that any of them
has with any underwriter or other person or company that has any interest in
the securities.
1981 cS‑6.1
s72;1989 c19 s4
Disclosure by registered
dealer
96 If a registered dealer recommends in any printed
material intended for general circulation a purchase, sale, exchange or hold of
a security, the registered dealer shall, in type not less legible than that
used in the body of the publication, state whether it or any of its officers or
directors
(a) has
at any time during the previous 12 months
(i) assumed an underwriting liability with respect to the securities,
or
(ii) for consideration provided financial advice to the issuer of the
securities,
or
(b) will receive any fees as a result of the recommended
action.
1981 cS‑6.1 s73
Disclosure by registered
dealer
97(1) A registered dealer shall provide to any of its
customers, within 30 days after receiving the customer’s request,
(a) the
names of the officers and the partners or the directors, as the case may be, of
the dealer as of the date of the request or any other date specified in the
request,
(b) the
names of any person or company having directly or indirectly an interest of not
less than 5% of the registered dealer’s capital, and
(c) the
most recently prepared annual financial statement of the dealer’s financial
position as filed
(i) with the self‑regulatory organization of which the dealer
is a member, or
(ii) with the Executive Director,
that is made up and
certified as required by the regulations.
(2) A
registered dealer shall inform its customers on every statement of account or
in another manner as the Executive Director may approve that the information
referred to in subsection (1) is available.
(3) If
the Executive Director determines that a registered dealer or a class of
registered dealers is
(a) pursuant
to the conditions of registration, or
(b) in
regulations imposed by a self‑regulating organization,
required to provide to customers information similar to the
information required under subsections (1) and (2), the Executive Director may
by order exempt the registered dealer or class of registered dealers from the
requirements of subsections (1) and (2).
RSA 2000 cS‑4
s97;2007 c10 s13
Provision of risk
disclosure statement
98 Subject to the regulations, a registered dealer
or advisor shall provide a risk disclosure statement to a customer prior to
opening an account for trading in exchange contracts in respect of that
customer.
1991 c33 s23
Use of name
99 No registrant shall use the name of another
registrant unless the first‑mentioned registrant is a partner, officer or
agent of or is authorized to do so in writing by the other registrant.
1981 cS‑6.1 s75
Representation or
holding out of registration
100(1) A
person or company shall not represent that the person or company is registered
under this Act unless
(a) the
representation is true, and
(b) in
making the representation, the person or company specifies the person or
company’s category of registration under this Act and the regulations.
(2) A
person or company shall not make a statement about something that a reasonable
investor would consider important in deciding whether to enter into or maintain
a trading or advising relationship with the person or company if the statement
is untrue or omits information necessary to prevent the statement from being
false or misleading in the circumstances in which it is made.
RSA 2000 cS‑4
s100;2006 c30 s16
Representations
101 No person or company shall make any
representation that the Commission, a member of the Commission, the Executive
Director, the Secretary or any person employed by the Commission has in any
manner expressed an opinion or passed judgment on
(a) the
financial standing, fitness or conduct of a registrant, or
(b) the merits of a security, exchange contract
or issuer.
1981 cS‑6.1
s76;1988 c7 s1(17);1991 c33 s24;1995 c28 s31
Margin contracts
102(1) If
(a) a
person or a partner or employee of a partnership or a director, officer or
employee of a company,
(i) after he or she or the partnership or company has contracted as a
registered dealer with a customer to buy and carry on margin any securities of
an issuer either in Canada or elsewhere, and
(ii) while the contract referred to in subclause (i) continues, he or
she or the partnership or company sells or causes to be sold securities of the
same issuer for any account in which the person, a partner or employee of the
partnership or the company or a director of the company, as the case may be,
has a direct or indirect interest,
and
(b) the
effect of the sale referred to in clause (a)(ii) would, otherwise than
unintentionally, be to reduce the amount of the securities in the hands of the
dealer or under its control in the ordinary course of business to below the
amount of the securities that the dealer should be carrying for all its
customers,
the dealer shall
disclose that fact to the customer and the contract with the customer is, at
the option of the customer, voidable.
(2) If
a customer exercises the customer’s option under subsection (1) to void a
contract, the customer may recover from the dealer
(a) all
the money paid by that customer with interest on it, and
(b) securities
deposited by that customer,
as the case may be, in
respect of that contract.
(3) The customer may exercise the option referred
to in subsection (1) within 30 days from the day that the disclosure was made
under subsection (1) by sending a notice to that effect to the dealer.
1981 cS‑6.1 s77
Declaration of short
position
103 A person or company,
(a) that
places an order for the sale of a security through a registered dealer that is
acting as the person’s or company’s agent, and
(b) that,
(i) at the time of placing the order, does not own the security, or
(ii) if acting as agent, knows the person’s or company’s principal
does not own the security,
shall, at the time of placing the order to sell, declare to
the registered dealer that the person or company or the person’s or company’s
principal, as the case may be, does not own the security.
1981 cS‑6.1 s78
Rights of beneficial
owners
104(1) Subject to subsection (5), voting securities of
an issuer registered in the name of
(a) a
registrant or in the name of the registrant’s nominee, or
(b) a
custodian or in the name of the custodian’s nominee, if the issuer is a mutual
fund that is a reporting issuer,
that are not
beneficially owned by the registrant or the custodian, as the case may be,
shall not be voted by the registrant or custodian at any meeting of security
holders of the issuer.
(2) Where
(a) the
registrant or custodian referred to in subsection (1) has received a copy of a
notice
(i) of a meeting of security holders of an issuer,
(ii) of a take‑over bid circular, issuer bid circular or exempt
offer relating to securities of an issuer, or
(iii) of a rights offering,
and
(b) the
beneficial owner has agreed to pay the reasonable costs to be incurred by the
registrant or custodian,
the registrant or
custodian, as the case may be, shall promptly send to the beneficial owner of
the securities a copy of that notice and any other notice, financial statement,
information circular, take‑over bid circular, issuer bid circular,
directors’ circular, director’s circular, officer’s circular or other similar
material respecting those securities that is received by the registrant or
custodian.
(3) Subsection
(2) only applies if the registrant or custodian knows the name and address of
the beneficial owner of the securities
(a) at
the record date for notice of the meeting of security holders,
(b) at
the date of the take‑over bid, issuer bid or exempt offer, or
(c) at
the date of the rights offering,
as the case may be.
(4) At
the request of a registrant or custodian, the person or company sending
material referred to in subsection (2) shall promptly furnish to the registrant
or custodian, at the expense of the sender, the requisite number of copies of
the material.
(5) A
registrant or custodian shall vote or give a proxy requiring a nominee to vote
any voting securities referred to in subsection (1) in accordance with any
written voting instructions received from the beneficial owner.
(6) A
registrant or custodian shall, if requested in writing by a beneficial owner,
give to the beneficial owner or the beneficial owner’s nominee a proxy enabling
the beneficial owner or the beneficial owner’s nominee to vote any voting
securities referred to in subsection (1).
(7) For
the purposes of this section, “custodian” means a person or company that
(a) has
physical possession of securities, and
(b) holds the securities for another person or
company.
1981 cS‑6.1 s79
Advertising and sales
material
105(1) The Executive Director may order a registered
dealer to send to the Executive Director copies of all advertising or sales
material that the dealer intends to use in connection with trading in
securities or exchange contracts if the Executive Director is satisfied that
the dealer’s past conduct in respect of advertising or sales material used by
the dealer in connection with trading in securities or exchange contracts is
such that it is necessary for the Executive Director to inspect the material
before it is used in connection with trading in securities or exchange
contracts.
(2) The
Executive Director shall not make an order under subsection (1) until the
Executive Director has given the registered dealer an opportunity to have a
hearing before the Executive Director.
(3) Any
advertising or sales material that is to be sent to the Executive Director
pursuant to an order made under subsection (1) shall be sent to the Executive
Director at least 14 days before it is to be used in connection with trading in
securities or exchange contracts.
(4) With
respect to any advertising or sales material sent to the Executive Director
under subsection (1), the Executive Director may decline to make any
representation or objection concerning the material or by order do one or more
of the following:
(a) prohibit
the use of the material;
(b) prescribe
deletions to be made to the material before it may be used;
(c) prescribe
changes to be made to the material before it may be used.
(5) If
(a) sales
or advertising material is sent to the Executive Director, and
(b) within
14 days from the day the Executive Director receives the sales or advertising material,
the Executive Director does not advise the dealer of any objection to the use
of the material,
the dealer may proceed
to use the material in connection with trading in securities or exchange
contracts.
(6) Where the Executive Director declines to make
any representation or objection under subsection (4), it shall not be construed
to mean that the Executive Director has made any judgment on the merits of the
material or its contents.
1981 cS‑6.1
s80;1988 c7 s1(43);1991 c33 s40;1995 c28 s62
Part 8
Trading in Exchange Contracts
Trading on recognized
exchange, etc.
106 No person or company shall trade in an exchange
contract on an exchange in Alberta unless
(a) the
exchange is recognized by the Commission under section 62, and
(b) the form of the exchange contract has been
accepted by the Commission.
1991 c33 s25;1995 c28
s62
Form of exchange
contract
107(1) For the purposes of section 106(b), the
Commission, on application by an exchange, may by order accept the form of an
exchange contract.
(2) The Commission shall not refuse to accept the
form of an exchange contract without giving the applicant an opportunity to
have a hearing before the Commission.
1991 c33 s25;1995 c28
s62
Trading on recognized
exchange
108 A registrant shall not trade in an exchange
contract on behalf of another person or company on an exchange located outside
Alberta unless the exchange is recognized by the Commission.
1991 c33 s25;1995 c28
s62
Recognition of exchange
109(1) For the purposes of section 108, the Commission,
on application by an exchange or on the Commission’s own motion, may by order
recognize an exchange located outside Alberta.
(2) The Commission shall not refuse to recognize an
exchange under subsection (1) without giving the applicant an opportunity to
have a hearing before the Commission.
1991 c33 s25;1995 c28
s32
Part 9
Distribution by Prospectuses
Filing prospectus
110(1) No person or company shall trade in a security
on the person’s or company’s own account or on behalf of any other person or company
if the trade would be a distribution of the security unless
(a) a
preliminary prospectus has been filed and the Executive Director has issued a
receipt for it, and
(b) a
prospectus has been filed and the Executive Director has issued a receipt for
it.
(2) A preliminary prospectus and a prospectus may
be filed in accordance with this Part to enable the issuer to become a
reporting issuer, notwithstanding the fact that no distribution is
contemplated.
1981 cS‑6.1
s81;1995 c28 s62
Preliminary prospectus
111(1) A preliminary prospectus shall, subject to
subsection (2), comply with the requirements of the Alberta securities laws
respecting the form and content of a prospectus.
(2) The
report or reports of the auditor or accountant required by the regulations and
any information with respect to
(a) the
price to the underwriter,
(b) the
offering price of any securities, and
(c) matters
dependent on or relating to those prices,
may be omitted from a preliminary prospectus.
1981 cS‑6.1
s82;2000 c17 s36
Receipt for preliminary
prospectus
112 The Executive Director shall promptly issue a
receipt for a preliminary prospectus on the filing of the preliminary
prospectus.
1981 cS‑6.1
s83;1995 c28 s62
Prospectus and
supplemental material
113(1) A prospectus shall
(a) provide
full, true and plain disclosure of all material facts relating to the
securities proposed to be issued or distributed, and
(b) comply
with the requirements of the Alberta securities laws.
(2) A prospectus shall contain or be accompanied
with financial statements, reports or other documents in accordance with the
Alberta securities laws.
1981 cS‑6.1
s84;2000 c17 s36
Preliminary prospectus ‑
adverse material change
114(1) If an adverse material change occurs after a
receipt for a preliminary prospectus is issued but before a receipt for the
prospectus is issued, an amendment to that preliminary prospectus shall be
filed within 10 days from the day that the change occurs.
(2) An
amendment to a preliminary prospectus shall, promptly after it has been filed,
be forwarded to each recipient of the preliminary prospectus according to the
record maintained under section 125.
(3) An amendment to a preliminary prospectus filed
under subsection (1) shall, immediately on filing, form part of the preliminary
prospectus.
1981 cS‑6.1 s85
Prospectus ‑
material change
115(1) If a material change occurs after a receipt for
a prospectus is issued but prior to the completion of the distribution under
that prospectus, an amendment to the prospectus shall be filed within 10 days
from the day that the change occurs.
(2) The
Executive Director may issue a receipt for an amendment filed under subsection
(1) unless the Executive Director considers that it is not in the public
interest to do so.
(3) The
Executive Director shall not issue a receipt for an amendment filed under
subsection (1) if it appears to the Executive Director that any of the
circumstances set out in section 120(2) are present.
(4) An amendment to a prospectus filed under
subsection (1) shall, immediately on a receipt being issued for the filing,
form part of the prospectus.
1981 cS‑6.1
s89;1984 c64 ss17,18;1988 c7 s1(43);1995 c28 s33
Certificates
116(1) A preliminary prospectus, a prospectus and an
amendment to a prospectus filed with the Executive Director shall contain a
certificate signed
(a) in
the case of a company, by
(i) the chief executive officer,
(ii) the chief financial officer, and
(iii) any 2 directors, other than those persons referred to in
subclauses (i) and (ii), who are duly authorized by the board of directors to
sign on behalf of the board of directors,
(b) in
the case of an issuer other than a company, by the persons who perform the
functions for the issuer that are similar to the functions performed by the
persons referred to in clause (a),
(c) by
the person or company who is a promoter or guarantor of the issuer, if any, and
(d) by
any other person as the Executive Director requires.
(2) A
certificate referred to in subsection (1) that is contained in a preliminary
prospectus or a prospectus shall state the following:
The foregoing constitutes full, true and plain disclosure of all
material facts relating to the securities offered by this prospectus as
required by Part 9 of the Securities Act and the regulations under it.
(3) A
certificate referred to in subsection (1) that is contained in an amendment to
a prospectus shall state the following:
The foregoing, together with the prospectus dated _________________,
constitutes full, true and plain disclosure of all material facts relating to
the securities offered by the prospectus as required by Part 9 of the
Securities Act and the regulations under it.
(4) A
prospectus filed under section 110(2) shall contain a certificate signed
(a) in
the case of a company, by
(i) the chief executive officer,
(ii) the chief financial officer, and
(iii) any 2 directors, other than those persons referred to in
subclauses (i) and (ii), who are duly authorized by the board of directors to
sign on behalf of the board of directors,
(b) in
the case of an issuer other than a company, by the persons who perform the
functions for the issuer that are similar to the functions performed by the
persons referred to in clause (a),
(c) by
the person or company that is a promoter or guarantor of the issuer, if any,
and
(d) by
any other person as the Executive Director requires.
(5) A
certificate referred to in subsection (4) shall state the following:
The foregoing constitutes full, true and plain disclosure of all
material facts relating to the securities previously issued by the issuer as
required by Part 9 of the Securities Act and the regulations under it.
(6) Notwithstanding
subsection (1) or (4), if the Executive Director is satisfied that
(a) subsection
(1) or (4) can not be complied with, and
(b) the
preliminary prospectus, prospectus or amendment to a prospectus, as the case
may be, meets all other requirements for filing,
the Executive Director
may waive the requirements of subsection (1) or (4), as the case may be, and prescribe
specific signing requirements in respect of that preliminary prospectus,
prospectus or amendment to a prospectus.
(7) Where
a certificate is to be signed under this section, the Executive Director may
require a person or company to sign that certificate if the person or company
(a) was a promoter of the issuer within the 2
preceding years, or
(b) is
a guarantor of the securities being distributed.
(8) Notwithstanding
subsection (1) or (4), the Executive Director may
(a) exempt
a promoter or the guarantor from the signing requirements of this section, or
(b) authorize an agent of the promoter or the
guarantor duly appointed in writing by the promoter or the guarantor for the
purpose to sign the certificate on behalf of the promoter or the guarantor.
1981 cS‑6.1
s90;1984 c64 s19;1988 c7 s1(42)(43);
1995 c28 s34;1999 c15 s23
Underwriter’s certificate
117(1) If there is an underwriter, a preliminary
prospectus and a prospectus shall contain a certificate in the following form,
signed by the underwriter who, with respect to the securities offered by the
prospectus, is in a contractual relationship with the issuer or security holder
whose securities are being offered by the prospectus:
To the best of our knowledge, information and belief, the foregoing
constitutes full, true and plain disclosure of all material facts relating to
the securities offered by this prospectus as required by Part 9 of the
Securities Act and the regulations under it.
(2) If
there is an underwriter, an amendment to a prospectus shall contain a
certificate in the following form, signed by the underwriter who, with respect
to the securities offered by the prospectus, is in a contractual relationship
with the issuer or security holder whose securities are being offered by the
prospectus:
To the best of our knowledge, information and belief, the foregoing,
together with the prospectus dated ____________, contains full, true and plain
disclosure of all material facts relating to the securities offered by the
prospectus as required by Part 9 of the Securities Act and the regulations
under it.
(3) Notwithstanding subsections (1) and (2), the
Executive Director may authorize an agent of an underwriter duly appointed in
writing by the underwriter for the purpose to sign the certificate on behalf of
the underwriter.
1981 cS‑6.1
s91;1984 c64 s20;1988 c7 s1(43);1995 c28 s62
Statement of rights
118(1) Every prospectus shall contain
(a) a
statement of the rights given to a purchaser by sections 130 and 203, and
(b) a
statement of the limits on the time within which an action to enforce a right
under section 203 must be commenced.
(2) Every prospectus of a mutual fund shall
contain, in addition to the statements required under subsection (1), a
statement of the rights given to the purchaser by section 210.
1981 cS‑6.1
s92;1982 c32 s15
Other forms of
prospectus
119(1) If a person or company meets the requirements
of the regulations, that person or company may file in accordance with the
regulations
(a) a
preliminary short form prospectus, a short form prospectus, a pro forma short
form prospectus or an exchange offering prospectus, or
(b) any
other prospectus not referred to in clause (a) that is permitted by the
regulations.
(2) The filing of a prospectus referred to in
subsection (1) shall constitute compliance with this Part on the issuance of a
receipt for that prospectus.
1984 c64 s21
Receipts for
prospectuses and referrals
120(1) The Executive Director may issue a receipt for
a prospectus filed under this Part unless the Executive Director considers that
it is not in the public interest to do so.
(2) The
Executive Director shall not issue a receipt under subsection (1) if it appears
to the Executive Director that
(a) the prospectus or any document required to
be filed with it
(i) fails to comply in any substantial respect with any of the
requirements of this Part or the regulations,
(ii) contains any statement, promise, estimate or forecast that is
misleading, false or deceptive, or
(iii) contains a misrepresentation,
(b) an
unconscionable consideration has been paid or given or is intended to be paid
or given for promotional purposes or for the acquisition of property,
(c) the
proceeds from the sale of the securities to which the prospectus relates that
are to be paid into the treasury of the issuer, together with other resources
of the issuer, are insufficient to accomplish the purpose of the issue stated
in the prospectus,
(d) having
regard to the financial condition of the issuer or an officer, director,
promoter or a person or company or combination of persons or companies holding
sufficient of the securities of the issuer to affect materially the control of
the issuer, the issuer cannot reasonably be expected to be financially
responsible in the conduct of its business,
(e) the
past conduct of the issuer or an officer, director, promoter or a person or
company or combination of persons or companies holding sufficient of the
securities of the issuer to affect materially the control of the issuer affords
reasonable grounds for belief that the business of the issuer will not be
conducted with integrity and in the best interests of its security holders,
(f) an
escrow or pooling agreement that the Executive Director considers necessary or
advisable with respect to securities has not been entered into,
(g) an
agreement that the Executive Director considers necessary or advisable to
accomplish the objects indicated in the prospectus for the holding in trust of
the proceeds payable to the issuer from the sale of the securities pending the
distribution of the securities has not been entered into,
(h) in
the case of a prospectus filed by a finance company
(i) the plan of distribution of the securities offered is not in the
public interest,
(ii) the securities offered are not secured in a manner, on those
terms and by those means as are required by the regulations, or
(iii) the finance company does not meet those financial and other
requirements and conditions that are specified in the regulations,
or
(i) a
person or company that
(i) has prepared or certified any part of the prospectus, or
(ii) is named as having prepared or certified a report or valuation
used in or in connection with a prospectus
is not acceptable to the
Executive Director.
(3) No
person or company filing a prospectus shall be refused a receipt for that
prospectus without an opportunity to have a hearing before the Executive
Director.
(4) If
in the opinion of the Executive Director a preliminary prospectus, pro forma
prospectus or prospectus raises
(a) a
material question involving the public interest, or
(b) a
question of interpretation respecting a provision of subsection (2) not
previously considered by the Commission,
that might result in
the Executive Director refusing to direct the issue of a receipt, the Executive
Director may refer the question to the Commission for determination.
(5) For
the purpose of referring a question to the Commission, the Executive Director
shall submit to the Commission
(a) a
written statement setting out the question,
(b) a
written statement of the facts on which the question is based, and
(c) any
additional material
(i) that the Executive Director considers necessary for the
determination of the question, or
(ii) that is requested by the Commission.
(6) On
receipt by the Commission of the question, the statement of the facts and any
additional material submitted under subsection (5), the Commission shall
promptly serve on those persons or companies that in the opinion of the
Commission should be served,
(a) a
copy of the question, and
(b) any
other material that the Commission considers necessary.
(7) The
Commission after hearing the matter shall decide the question.
(8) Subject to any order of the Court of Appeal
made under section 38, the decision of the Commission on the question is
binding on the Executive Director.
1981 cS‑6.1
s96;1984 c64 s22;1988 c7 s1(41)(43);1995 c28 s36
Time limits on
distributions
121(1) In this section, “lapse date” means
(a) in
the case of a prospectus, the date on which a prospectus ceases to be valid for
the distribution of securities for which the prospectus was filed, and
(b) in
the case of a summary statement, the date on which a summary statement ceases
to be valid for the distribution of securities for which the summary statement
was filed.
(2) Subject
to subsection (6), a distribution of a security to which section 110(1) applies
shall not continue after the lapse date of the prospectus that relates to that
security unless a new prospectus that complies with this Part is filed and the
Executive Director has issued a receipt for it.
(3) For
the purposes of subsection (2), the lapse date of a prospectus is the date
provided for in the regulations.
(4) Notwithstanding
subsection (2), the Executive Director may by order restrict the period of time
to less than 12 months within which securities may be distributed pursuant to a
prospectus.
(5) If
the Executive Director has made an order under subsection (4), the Executive
Director may extend the period of time stated in the order to a period of time
that is not greater than that allowed under subsection (2).
(6) A
distribution may be continued for a further 12 months beyond the lapse date of
a prospectus if
(a) a
pro forma prospectus prepared in accordance with the regulations is filed not
less than 30 days prior to the lapse date of the prospectus,
(b) a
new prospectus is filed within 10 days following the lapse date of the
prospectus, and
(c) a
receipt for the new prospectus referred to in clause (b) is issued by the Executive
Director within the 20 days following the lapse date of the prospectus.
(7) Subject
to any extension granted under subsection (9), all trades completed in reliance
on subsection (6) after the lapse date may be cancelled at the option of the
purchaser if any of the conditions to the continuation of a distribution under
subsection (6) are not complied with.
(8) A
purchaser must exercise the purchaser’s option under subsection (7) within 90
days from the day on which the purchaser became aware that a condition under
subsection (6) was not complied with.
(9) The Commission may, on an application of a
reporting issuer, extend the time limits prescribed under subsection (6) if the
Commission considers that it would not be prejudicial to the public interest to
do so.
1981 cS‑6.1
s97;1982 c32 s18;1984 c64 s23;1988 c7 s1(41)(43);
1995 c28 s37;1999 c15 s24
Distribution of
previously issued securities
122(1) If a person or company proposing to make a
distribution of previously issued securities of an issuer is unable to obtain
from the issuer of the securities information or material that is necessary for
the purpose of the distribution or for enabling that person or company to
comply with this Part and the regulations, the Executive Director may order the
issuer of the securities to give to the person or company that proposes to make
the distribution that information and material that the Executive Director
considers necessary for the purposes of the distribution or for enabling that
person or company to comply with this Part and the regulations.
(2) If
a person or company proposing to make a distribution of previously issued
securities of an issuer is unable to obtain the signatures to the certificates
required by this Part or the regulations or otherwise to comply with this Part
or the regulations, the Executive Director, on being satisfied that
(a) all
reasonable efforts have been made to comply with this Part and the regulations,
and
(b) no
person or company is likely to be prejudicially affected by the failure to
comply with this Part or the regulations,
may make an order waiving any of the provisions of this
Part or the regulations as the Executive Director considers advisable to
facilitate the distribution.
1981 cS‑6.1
s98;1988 c7 s1(43);1995 c28 s62
Part 10
Distribution Generally
Distribution of material
123 During the period of time between the issuance
of a receipt for a preliminary prospectus and the issuance of a receipt for a
prospectus it is permitted to do the following:
(a) communicate
with any person or company
(i) identifying the security proposed to be issued,
(ii) stating the price of the security if it is then determined,
(iii) stating the name and address of a person or company from whom
purchases of the security may be made, and
(iv) any further information as may be permitted or required by the
regulations,
if every communication
states the name and address of a person or company from whom a preliminary
prospectus may be obtained;
(b) distribute
a preliminary prospectus;
(c) solicit expressions of interest from a
prospective purchaser if, prior to the solicitation or promptly after the
prospective purchaser indicates an interest in
purchasing the security, a copy of the preliminary prospectus is
forwarded to the prospective purchaser.
1981 cS‑6.1 s99
Distribution of
preliminary prospectus
124 Any dealer acting under section 123 shall, in
addition to the requirements of section 123(c), send a copy of the preliminary
prospectus to each prospective purchaser who, without solicitation,
(a) indicates an interest in purchasing the
security, and
(b) requests a copy of the preliminary
prospectus.
1981 cS‑6.1
s100;1984 c64 s24
Distribution list
125 A dealer acting under section 123 shall maintain
a record of the names and addresses of all persons and companies to whom the
preliminary prospectus has been forwarded.
1981 cS‑6.1 s101
Defective preliminary
prospectus
126(1) If it appears to the Executive Director that a
preliminary prospectus is defective in that it does not substantially comply
with the requirements of the Alberta securities laws as to form and content,
the Executive Director may, without giving notice, order that the trading
permitted under section 123 in the security to which the preliminary prospectus
relates cease.
(2) An order made under subsection (1) remains in
force until a revised preliminary prospectus satisfactory to the Executive
Director is filed and forwarded to each recipient of the defective preliminary
prospectus who was shown on the record maintained under section 125 to have
received the defective preliminary prospectus.
1981 cS‑6.1
s102;1988 c7 s1(43);1995 c28 s62;2000 c17 s36
Material given on
distribution
127 From the date that the Executive Director issues
a receipt for a prospectus, a person or company trading in the security in a
distribution pursuant to the prospectus, shall not distribute any material
respecting the security that is prohibited by the regulations or by an order
made by the Executive Director under section 76 or 105.
1981 cS‑6.1
s103;1988 c7 s1(43);1995 c28 s62
Order to cease trading
128(1) If it appears to the Commission, after a
receipt is issued for a prospectus, that any of the circumstances set out in
section 120(2) exist, the Commission may order that the distribution of the
securities under the prospectus cease.
(2) An
order made under this section shall be served by the Commission on
(a) the
issuer of the securities to which the prospectus relates, and
(b) any
person or company that the Commission so directs.
(3) On
receipt of the order,
(a) distribution
of the securities pursuant to the prospectus by the person or company named in
the order shall cease, and
(b) any
receipt issued by the Executive Director for the prospectus is revoked.
(4) An order shall not be made under subsection (1)
without the issuer being given an opportunity to have a hearing before the
Commission.
1981 cS‑6.1
s104;1988 c7 s1(41);1995 c28 s62
Obligation to deliver
prospectus
129 A dealer, not acting as an agent of the
purchaser, who receives an order or subscription for a security offered in a
distribution to which section 110(1) or 121 applies, unless the dealer has
previously done so, shall send to a purchaser of the security the latest
prospectus and any amendment to the prospectus filed either
(a) before
entering into an agreement of purchase resulting from the order or
subscription, or
(b) not later than midnight on the 2nd day,
exclusive of Saturdays and holidays, after entering into the agreement.
1981 cS‑6.1
s105;1984 c64 s25
Revocation of purchase
130(1) An agreement to purchase securities offered in
a subscription to which section 110(1) or 121 applies is not binding on the
purchaser if the dealer receives, not later than midnight on the 2nd day
exclusive of Saturdays and holidays, after receipt by the purchaser of the
latest prospectus or any amendment to the prospectus, notice in writing that
the purchaser does not intend to be bound by the agreement of purchase.
(2) A
beneficial owner who is not the purchaser under this section may exercise the
same rights under subsection (1) as may be exercised by a purchaser.
(3) A
purchaser referred to in subsection (1) who is not the beneficial owner of the
securities shall advise the person or company that is the beneficial owner of
the securities of the provisions of subsections (1) and (2).
(4) Subsection
(3) only applies if the purchaser knows the name and address of the beneficial
owner of the securities.
(5) Subsections
(1) to (3) do not apply if the beneficial owner of the securities is a
registrant.
(6) The
receipt of the notice referred to in subsection (1) by a dealer is deemed to be
receipt of the notice by the vendor of the security.
(7) The onus of proving that the time for giving
notice under subsection (1) has expired is on the dealer from whom the
purchaser has agreed to purchase the security.
1981 cS‑6.1 s106
Part 11
Exemptions from Prospectus Requirements
131 to 132 Repealed
2005 c18 s19.
133 to 140 Repealed
2003 c32 s16.
Reporting issuer ‑
default
141 The Commission may publish a list of
defaulting reporting issuers.
RSA 2000 cS‑4
s141;2003 c32 s17;2006 c30 s29
142 and 143 Repealed 2005 c18 s20.
Discretionary exemptions
144(1) The Commission may, if the Commission considers
that it would not be prejudicial to the public interest to do so, make an order
exempting a trade from section 75 or 110.
(2) The
Commission may, if the Commission considers that it would not be prejudicial to
the public interest to do so, make an order that a trade, an intended trade or
a class of trades or intended trades is deemed to be a distribution.
(3) The
Commission may, if the Commission considers that it would not be prejudicial to
the public interest to do so, make an order declaring whether a distribution
has been concluded or is still in progress.
(4) An
order under this section may be made by the Commission on its own motion or on
an application of a person or company directly affected by the trade in respect
of which the application is being made.
(5) An
order made under subsection (1) may, at the direction of the Commission, come
into force on a date prior to the date on which the order is made.
(6) A decision of the Commission under this section
is final and there is no appeal from it.
1981 cS‑6.1
s116;1988 c7 s1(41);1995 c28 s40;1999 c15 s27
Reporting issuer by
declaration
145(1) On
(a) the
application of an issuer, or
(b) the
motion of the Executive Director,
the Commission may, if
the Commission considers that it would not be prejudicial to the public interest
to do so, make an order declaring that a person or company is a reporting
issuer for the purposes of this Act and the regulations.
(2) An order under subsection (1) shall not be made
without giving the person or company in respect of which the order is made an
opportunity to have a hearing before the Commission.
1981 cS‑6.1
s117;1984 c64 s37;1988 c7 s1(20);
1995 c28 s41;1999 c15 s28
Part 12
Continuous Disclosure
Disclosure generally
146 A reporting issuer shall, in accordance
with the regulations,
(a) provide
prescribed periodic disclosure about its business and affairs,
(b) provide
disclosure of a material change, and
(c) provide other prescribed disclosure.
RSA 2000 cS‑4
s146;2003 c32 s18;2006 c30 s30
Disclosure of material
fact or change
147(1) For the purposes of subsection (2), a security
of a reporting issuer includes
(a) a
put, call, option or other right or obligation to purchase or sell securities
of the reporting issuer, or
(b) a
security the market price of which varies materially with the market price of
the securities of the reporting issuer.
(2) No
person or company in a special relationship with a reporting issuer shall
purchase or sell securities of the reporting issuer with the knowledge of a
material fact or material change with respect to the reporting issuer that has
not been generally disclosed.
(3) No
reporting issuer or person or company in a special relationship with a
reporting issuer shall, other than when it is necessary in the course of
business, inform another person or company of a material fact or material
change with respect to the reporting issuer before the material fact or
material change has been generally disclosed.
(3.1) No
reporting issuer or person or company in a special relationship with a
reporting issuer with knowledge of a material fact or material change with
respect to the reporting issuer that has not been generally disclosed shall
recommend or encourage another person or company to
(a) purchase
or sell a security of the reporting issuer, or
(b) enter
into a transaction involving a security the value of which is derived from or
varies materially with the market price or value of a security of the reporting
issuer.
(4) No
person or company that proposes
(a) to
make a take‑over bid, as defined in Part 14, for the securities of a
reporting issuer,
(b) to
become a party to a reorganization, amalgamation, merger, arrangement or
similar business combination with a reporting issuer, or
(c) to
acquire a substantial portion of the property of a reporting issuer,
shall, other than when
it is necessary in the course of business for the carrying out of the take‑over
bid, business combination or acquisition, inform another person or company of a
material fact or material change with respect to the reporting issuer before
the material fact or material change has been generally disclosed.
(5) No
person or company shall be found to have contravened subsection (2) if that
person or company does one or more of the following:
(a) proves
that
(i) the person or company had knowledge of the material fact or
material change by reason only that the material fact or material change was
known to one or more of that person’s or company’s directors, officers,
partners, employees or agents,
(ii) in the case where that person is an individual, that person did
not have any actual knowledge of the material fact or material change,
(iii) the decision to purchase or sell the securities was made by that
person’s or company’s director, officer, partner, employee or agent who did not
have any actual knowledge of the material fact or material change, and
(iv) the person’s or company’s director, officer, partner, employee or
agent who had actual knowledge of the material fact or material change did not,
with respect to the purchase or sale of the securities, give any specific
advice based on that knowledge to that person’s or company’s director, officer,
partner, employee or agent who made the decision to purchase or sell the
securities;
(b) proves
that the person or company
(i) purchased or sold the securities, as an agent for another person
or company pursuant to
(A) an unsolicited order, or
(B) a solicited order given prior to the person
or company that acted as agent having knowledge of the material fact or
material change,
and
(ii) did not, with respect to the purchase or sale of the securities,
give any specific advice to that other person or company based on the knowledge
of that material fact or change;
(c) proves
that the purchase or sale of the securities was made pursuant to the person’s
or company’s participation in an automatic dividend reinvestment plan, an
automatic security purchase plan or another similar automatic plan that the
person or company had entered into prior to the person or company acquiring knowledge
of the material fact or material change;
(d) proves
that the purchase or sale of the securities was made pursuant to a legal
obligation that the person or company had entered into prior to the person or
company acquiring knowledge of the material fact or material change;
(e) proves
that the person or company, as an agent for another person or company,
purchased or sold the securities as a result of that other person’s or
company’s
(i) participation in an automatic dividend reinvestment plan, an automatic
security purchase plan or another similar automatic plan, or
(ii) legal obligation.
(6) No
person or company shall be found to have contravened subsection (2), (3) ,
(3.1) or (4) if that person or company does one or more of the following:
(a) proves
that the person or company reasonably believed that the material fact or
material change had been generally disclosed;
(b) proves
that the person or company reasonably believed that
(i) the other party to the purchase or sale of the securities, or
(ii) the other person or company informed of the material fact or
material change,
had prior knowledge of or
ought reasonably to have known of the material fact or material change.
(7) Where
a person or company with knowledge of a material fact or material change with
respect to a reporting issuer purchases or sells securities of that reporting
issuer for the account of another person or company while acting as agent with
discretionary authority for that other person or company, the person or company
for whose account the securities were purchased or sold is not to be found to
have contravened subsection (2) if
(a) the
transaction was entered into without the knowledge of the person or company for
whose account the securities were purchased or sold,
(b) the
material fact or material change was not communicated to the person or company
for whose account the securities were purchased or sold, or
(c) the
person or company for whose account the securities were purchased or sold had
actual knowledge of the material fact or material change but did not exercise
influence over or make recommendations to the person or company acting as the
agent with the discretionary authority.
(8) It is not a contravention of this section to
provide information to the Commission.
RSA 2000 cS‑4
s147;2005 c18 s21
148 Repealed 2003 c32 s19.
149 to 152 Repealed 2006 c30 s31.
Deemed
not to be a reporting issuer
153 On the application of a reporting issuer,
the Commission may, if the Commission considers that it would not be prejudicial
to the public interest to do so, make an order that the reporting issuer is
deemed to have ceased to be a reporting issuer.
1981 cS‑6.1
s125;1984 c64 s42;1988 c7 s1(41);1995 c28 s43;
1999 c15 s30
Part 13
Proxies and Proxy Solicitations
154 Repealed 2006 c30 s32.
155 and 156 Repealed 2003 c32 s24.
Voting
‑ proxies
157(1) Notwithstanding that the form of proxy of those
proxies present at a meeting specifies how a person or company whose proxy is
solicited may vote the securities registered in the name of that person or
company, the chair of the meeting may, subject to subsection (2), refuse to
conduct a vote by way of ballot on a matter or group of matters.
(2) At
a meeting the vote shall be conducted by ballot if
(a) a
poll is demanded by any security holder present in person or represented by
proxy at the meeting, or
(b) the
proxies
(i) require that the securities represented by them be voted against
what would otherwise be the decision of the meeting in relation to those
matters or group of matters being decided, and
(ii) represent more than 5% of all the voting
rights attached to all the securities entitled to be voted and represented at
the meeting.
1981 cS‑6.1 s129
Proxies and information
circular
157.1(1) Where
the regulations provide for the form, content, filing and sending of
information circulars or form of proxy, any person or company that sends or is
required to send an information circular or a form of proxy to security holders
of a reporting issuer must do so in accordance with those regulations.
(2) A proxy that is executed by a
security holder may confer authority, and is subject to any restrictions, as
prescribed or otherwise provided for under the regulations.
2003 c32 s25
Part 14
Take‑over Bids and Issuer Bids
Interpretation
158 For the purposes of this Part,
(a) “interested
person” means
(i) an issuer whose securities are the subject of a take-over bid,
issuer bid or other offer to acquire,
(ii) a security holder, director or officer of an issuer described in
subclause (i),
(iii) an offeror,
(iv) the Executive Director, and
(v) any person or company not referred to in subclauses (i) to (iv)
who, in the opinion of the Commission or the Court of Queen’s Bench, as the
case may be, is a proper person to make an application under section 179 or
180;
(b) “issuer
bid” means a direct or indirect offer to acquire or redeem a security or a
direct or indirect acquisition or redemption of a security that is
(i) made by the issuer of the security, and
(ii) within a prescribed class of offers, acquisitions or redemptions;
(c) “take-over
bid” means a direct or indirect offer to acquire a security that is
(i) made directly or indirectly by a person or company other than the
issuer of the security, and
(ii) within a prescribed class of offers to acquire.
RSA 2000 cS‑4
s158;2006 c30 s33
Making a bid
159 A person or company shall not
make a take-over bid or issuer bid, whether alone or acting jointly or in
concert with one or more persons, except in accordance with the regulations.
RSA 2000 cS‑4
s159;2006 c30 s33
Directors’ or director’s or officer’s recommendation
160(1) When a take-over bid has been made, the directors of the
issuer whose securities are the subject of the bid shall
(a) determine whether to recommend acceptance or rejection of the bid
or determine not to make a recommendation, and
(b) make the recommendation, or a statement that they are not making
a recommendation, in accordance with the regulations.
(2) An individual director or officer of the issuer
described in subsection (1) may recommend acceptance or rejection of the
take-over bid if the recommendation is made in accordance with the regulations.
2000 c30 s33
161 to 175 Repealed 2006 c30 s33.
176 to 178 Repealed 2006 c30 s34.
Applications
to the Commission
179(1) On
application by an interested person, if the Commission considers that a person
has not complied or is not complying with this Part or the regulations, the
Commission may make an order
(a) restraining
the distribution of any document, record or materials used or issued in
connection with a take-over bid or issuer bid,
(b) requiring
an amendment to or variation of any document, record or materials used or
issued in connection with a take-over bid or issuer bid and requiring the distribution
of amended, varied or corrected information,
(c) directing
any person or company to comply with this Part or the regulations,
(d) restraining
any person or company from contravening this Part or the regulations, or
(e) directing
the directors and officers of any person or company to cause the person or
company to comply with or to cease contravening this Part or the regulations.
(2) On
application by an interested person, the Commission may order that a person or
company is exempt from any requirement under this Part or the regulations if
the Commission considers it would not be prejudicial to the public interest to
do so.
RSA 2000 cS‑4
s179;2006 c30 s35
Applications to the
court
180(1) On
application by an interested person, if the Court of Queen’s Bench is satisfied
that a person or company has not complied with this Part or the regulations,
the Court of Queen’s Bench may make an interim or final order as the court sees
fit, including, without limitation, an order
(a) compensating
any interested person who is a party to the application for damages suffered as
a result of a contravention of this Part or the regulations,
(b) rescinding
a transaction with any interested person, including the issue of a security or
a purchase and sale of a security,
(c) requiring
any person or company to dispose of any securities acquired pursuant to or in
connection with a take-over bid or issuer bid,
(d) prohibiting
any person or company from exercising any or all of the voting rights attached
to any securities, or
(e) requiring
the trial of an issue.
(2) If
the Executive Director is not the applicant under subsection (1), the Executive
Director
(a) must
be given notice of the application, and
(b) is
entitled to appear at the hearing and make representations to the Court of
Queen’s Bench.
RSA 2000 cS‑4
s180;2006 c30 s36
Part 15
Insider Trading and Self‑dealing
Interpretation
181(1) In this Part,
(a) “mutual
fund” means, except in section 185, a mutual fund that is a reporting issuer;
(b) “related
mutual funds” includes more than one mutual fund under common management;
(c) “related
person or company” means, in relation to a mutual fund, a person in whom or a
company in which, the mutual fund, its management company and its distribution
company are prohibited by this Part from making any investment.
(2) For
the purposes of this Part,
(a) any
issuer in which
(i) a mutual fund holds in excess of 10% of the voting securities, or
(ii) a mutual fund and related mutual funds hold in excess of 20% of
the voting securities,
is deemed to be a related
person or company of that mutual fund or of each of those mutual funds, as the
case may be;
(b) the
acquisition or disposition of a put, call or other option with respect to a
security is deemed to be a change in the beneficial ownership of the security
to which the put, call or other option relates;
(c) with
respect to reporting under section 182, ownership is deemed to pass at the time
(i) an offer to sell is accepted by the purchaser or the purchaser’s
agent, or
(ii) an offer to buy is accepted by the vendor or
the vendor’s agent.
1981 cS‑6.1 s146
Reports of insider
182(1) Subject to the regulations, a person or company
that becomes an insider of a reporting issuer, other than a mutual fund, shall
file a report with the Executive Director disclosing any direct or indirect
beneficial ownership of or control or direction over securities of the
reporting issuer.
(2) Subject
to the regulations, an insider
(a) who
has filed or is required to file a report under this section or any predecessor
of it, and
(b) whose
direct or indirect beneficial ownership of or control or direction over
securities of the reporting issuer changes from that shown or required to be
shown in the report or in the latest report filed by the insider under this
section or any predecessor of it,
shall file with the
Executive Director a report of the following:
(c) the
insider’s direct or indirect beneficial ownership of or the insider’s control
or direction over securities of the reporting issuer;
(d) the
transfer, if any, of the insider’s securities of the reporting issuer into the
name of an agent, nominee or custodian other than giving collateral for a bona
fide debt;
(e) the
change or changes in the report or latest report, as the case may be, setting
out those details of each transaction that are required by the regulations.
(3) Subject to the regulations, a person or company
that becomes an insider of a reporting issuer by reason of section 8 shall file
with the Executive Director the reports required by subsections (1) and (2) of
this section for the previous 6 months or such shorter period that the person
or company was a director or officer of the reporting issuer.
RSA 2000 cS‑4
s182;2007 c10 s17
Early warning
182.1 If a person or company acquires
beneficial ownership, directly or indirectly of, or direct or indirect control
or direction over, securities of a prescribed type or class of a reporting
issuer representing a prescribed percentage of the outstanding securities of that
type or class, the person or company and any person or company acting jointly
or in concert with the person or company shall make and file disclosure in
accordance with the regulations and comply with any prohibitions in the
regulations on transactions in securities of the reporting issuer.
2006 c30 s39
Report of a legal owner
183 If voting securities are registered in the name
of a person or company other than the beneficial owner and the person or
company knows that
(a)
the securities are beneficially owned by an insider, and
(b) the
insider has failed to file a report of ownership as required by this Part,
the person or company shall file with the Executive
Director a report in accordance with the regulations unless the transfer to the
person or company was for the purpose of giving collateral for a bona fide
debt.
1981 cS‑6.1
s150;1988 c7 s1(27);1995 c28 s62
Interpretation
184(1) For the purposes of sections 185 to 189,
(a) “investment”
means a purchase of any security or any class of securities of an issuer
including loans to persons or companies, but does not include advances or
loans, whether secured or unsecured, that
(i) are made by a mutual fund or its management company or
distribution company, and
(ii) are ancillary to the main business of the mutual fund or its
management company or distribution company;
(b) a
person or company or a combination of persons or companies has a significant
interest in an issuer, if,
(i) in the case of a person or company, the person or company, as the
case may be, owns beneficially, either directly or indirectly, more than 10%,
or
(ii) in the case of a combination of persons or companies, they own
beneficially, either individually or together and either directly or
indirectly, more than 50%,
of the outstanding shares
or units of the issuer;
(c) a
person or company or a combination of persons or companies is a substantial
security holder of an issuer if that person or company or combination of
persons or companies owns beneficially, either individually or together or
directly or indirectly, voting securities to which are attached more than 20%
of the voting rights attached to all the voting securities of the issuer for
the time being outstanding;
(d) if
a person or company or a combination of persons or companies owns beneficially,
directly or indirectly, voting securities of an issuer, that person or company
or combination of persons or companies is deemed to own beneficially a
proportion of voting securities of any other issuer that are owned beneficially,
directly or indirectly, by the first mentioned issuer, in a proportion that is
equal to the proportion of the voting securities of the first mentioned issuer
that are owned beneficially, directly or indirectly by that person or company
or combination of persons or companies.
(2) For the purposes of subsection (1)(c), when
computing the percentage of voting rights attached to voting securities owned
by an underwriter there shall be excluded any voting securities acquired by the
person as underwriter in a distribution of the securities up until the time of
completion or cessation of the distribution by the underwriter.
1981 cS‑6.1 s151
Loans and investments of
mutual funds
185(1) No mutual fund shall knowingly make an
investment by way of loan to
(a) an
officer or director of the mutual fund or its management company or its
distribution company or an associate of any of them, or
(b) an
individual, if the individual or an associate of the individual is a
substantial security holder of the mutual fund or its management company or its
distribution company.
(2) No
mutual fund shall knowingly make an investment
(a) in
a person or company that is a substantial security holder of the mutual fund or
its management company or its distribution company,
(b) in
a person or company in which the mutual fund, alone or together with one or
more related mutual funds, is a substantial security holder, or
(c) in
an issuer in which
(i) an officer or director of the mutual fund or its management
company or its distribution company or an associate of any of them has a
significant interest, or
(ii) a person or company that is a substantial security holder of the
mutual fund or its management company or in which the mutual fund’s
distribution company has a significant interest.
(3) No mutual fund or its management company or its
distribution company shall knowingly hold an investment that is an investment
described in this section at any time after July 31, 1982.
1981 cS‑6.1 s152
Indirect investment
186(1) No mutual fund or its management company or its
distribution company shall knowingly enter into any contract or other
arrangement that results in its being directly or indirectly liable or
contingently liable in respect of any investment by way of loan to or other investment
in a person or company
(a) to
whom it is by section 185 prohibited from making a loan, or
(b) in
which it is prohibited from making an investment.
(2) For the purpose of section 185, a contract or
other arrangement referred to in subsection (1) is deemed to be a loan or an
investment, as the case may be.
1981 cS‑6.1 s153
187 Repealed 2006 c30 s41.
Permitted
investment ‑ mutual fund
188 A mutual fund is not prohibited from making an
investment in an issuer by reason only that a person or company or a
combination of persons or companies that owns beneficially, directly or
indirectly, voting securities of the mutual fund or its management company or
its distribution company is by reason of the investment deemed under section
184(d) to own beneficially voting securities of the issuer.
1981 cS‑6.1 s155
Fees on investment
189(1) No mutual fund shall make an investment in
consequence of which a related person or company of the mutual fund will
receive a fee or other compensation except fees paid pursuant to a contract
that is disclosed in a preliminary prospectus or prospectus that is filed by
the mutual fund and is accepted by the Executive Director.
(2) The
Commission may
(a) on
the application of a mutual fund, and
(b) if
the Commission considers that it would not be prejudicial to the public
interest to do so,
order that subsection (1) does not apply to the mutual
fund.
1981 cS‑6.1
s156;1988 c7 s1(41)(43);1995 c28 s48
Standard of care for
management
of investment fund
190 Every investment fund manager shall
(a) exercise
the powers and discharge the duties of its office honestly, in good faith and
in the best interests of the investment fund, and
(b) exercise
the degree of care, diligence and skill that a reasonably prudent person would
exercise in the circumstances.
RSA 2000 cS‑4
s190;2006 c30 s42
Filing by management
companies
191(1) Every management company shall, in respect of
each mutual fund to which it provides service or advice, file a report prepared
in accordance with the regulations of the following matters within 30 days from
the end of the month in which the matter occurred:
(a) every
transaction of purchase or sale of securities between the mutual fund and any
related person or company;
(b) every
loan
(i) received by the mutual fund from, or
(ii) made by the mutual fund to,
any of its related persons
or companies;
(c) every
purchase or sale effected by the mutual fund through any related person or
company with respect to which the related person or company received a fee
either from the mutual fund or from the other party to the transaction or from
both;
(d) every
transaction, other than an arrangement relating to insider trading in portfolio
securities, in which the mutual fund is a joint participant with one or more of
its related persons or companies.
(2) The Commission may order that subsection (1)
does not apply to any transaction or class of transactions.
1981 cS‑6.1
s158;1988 c7 s1(41);1995 c28 s62
Portfolio managers
192(1) In this section, “responsible person” means a
portfolio manager and includes
(a) every
individual who is a partner, director or officer of a portfolio manager,
(b) every
affiliate of a portfolio manager, and
(c) every
individual who is
(i) a director, officer or employee of an affiliate of a portfolio
manager, or
(ii) is an employee of the portfolio manager,
if the affiliate or the
individual participates in the formulation of, or has access prior to the
implementation of, investment decisions made on behalf of or the advice given
to the client of the portfolio manager.
(2) A
portfolio manager shall not knowingly cause any investment in a portfolio
managed by it to be made up of any of the following:
(a) an
investment in any issuer in which a responsible person or an associate of a responsible
person is an officer or director unless
(i) that specific fact is disclosed to the client, and
(ii) the written consent of the client to the investment is obtained
before the purchase;
(b) a
purchase or sale of the securities of any issuer from or to the account of a
responsible person or any associate of a responsible person;
(c) a loan made to a responsible person or an
associate of a responsible person.
1981 cS‑6.1 s159
Trades by mutual fund
insiders
193 No person or company that has access to
(a) information
concerning the investment program of a mutual fund, or
(b) the
investment portfolio managed for a client by a portfolio manager,
shall purchase or sell
securities of an issuer for the person’s or company’s account if
(c) the
portfolio securities of
(i) the mutual fund, or
(ii) the investment portfolio managed for a client by a portfolio
manager
include securities of that
issuer, and
(d) the information is used by the person or
company for the person’s or company’s direct benefit or advantage.
1981 cS‑6.1 s160
Authorized exceptions to
prohibitions
193.1 If the regulations so provide, a body
established under section 193.2(1) by an investment fund may approve a
transaction that is prohibited under this Part, in which case the prohibition
does not apply to the transaction.
2006 c30 s43
Oversight, etc., of
investment funds
193.2(1) If
required to do so by the regulations, an investment fund shall establish and
maintain a body for the purposes of overseeing activities of the investment
fund and the investment fund manager, reviewing or approving prescribed matters
affecting the investment fund, including transactions referred to in section
193.1, and disclosing information to security holders of the fund, to the
investment fund manager and to the Commission.
(2) The
body has such powers and duties as may be prescribed by the regulations.
2006 c30 s43
Part 16
Enforcement
General offences and
penalties
194(1) A person or company that contravenes Alberta
securities laws is guilty of an offence and is liable to a fine of not more
than $5 000 000 or to imprisonment for a term of not more than 5
years less a day, or to both.
(2) No
person or company is guilty of an offence under section 92(4.1) if the person
or company, as the case may be, did not know, and in the exercise of reasonable
diligence would not have known, that the statement referred to in that
subsection was misleading or untrue or that it omitted to state a fact that was
required to be stated or that was necessary to make the statement not
misleading in light of the circumstances in which it was made.
(3) Every
director or officer of a person or company or a person other than an individual
who authorizes, permits or acquiesces in the commission of an offence under
subsection (1) by the person or company, whether or not a charge has been laid
or a finding of guilt has been made against the person or company in respect of
the offence under subsection (1), is also guilty of an offence and is liable to
a fine of not more than $5 000 000 or to imprisonment for a term of
not more than 5 years less one day or to both.
(4) Despite
the fine under subsection (1), a person or company that contravenes section 147
is guilty of an offence and is liable to a fine of
(a) an
amount not less than the profit made by the person or company because of the
contravention, and
(b) an
amount not more than the greater of
(i) $5 000 000, and
(ii) an amount equal to triple the amount of the profit made or the
loss avoided by the person or company because of the contravention.
(5) If
it is not possible to determine the profit made or the loss avoided by a person
or company by reason of the contravention, subsection (4) does not apply and
subsection (1) applies.
(6) If
a person or company is guilty of an offence under this section, the court
(a) may
make an order requiring the person or company to compensate or make restitution
to an aggrieved person or company, and
(b) may make any other order that the court
considers appropriate in the circumstances.
RSA 2000 cS‑4
s194;2003 c32 s26;2005 c18 s22
Interpretation
195(1) In this section,
(a) “highest
price received” means the highest price at which the seller sold any one
security of the securities sold after the seller had knowledge of the material
fact or material change;
(b) “lowest
price paid” means the lowest price paid by the purchaser for any one security
of the securities that the purchaser purchased after the purchaser had
knowledge of the material fact or material change;
(c) “market
price” means the weighted average market price of the securities as determined
with respect to the first 20 trading days for that security following the
general disclosure of the material fact or material change;
(d) “purchaser”
means a person or company that purchased securities in contravention of section
147(2);
(e) “securities”
means securities purchased or sold in contravention of section 147(2);
(f) “seller”
means a person or company that sold securities in contravention of section
147(2).
(2) For
the purposes of section 194(4) and (5),
(a) “loss
avoided” means the amount by which the amount received for the security sold in
contravention of section 147(2) exceeds the average trading price of the
security in the 20 trading days following the general disclosure of the
material fact or the material change;
(b) “profit
made” means
(i) the amount by which the average trading price of the security in
the 20 days following general disclosure of the material fact or the material
change exceeds the amount paid for the security purchased in contravention of
section 147(2),
(ii) in respect of a short sale, the amount by which the amount
received for the security sold in contravention of section 147(2) exceeds the
average trading price of the security in the 20 trading days following general
disclosure of the material fact or the material change, or
(iii) the value of any consideration received for
informing another person or company of a material fact or material change with
respect to the reporting issuer in contravention of section 147(3) or (4).
RSA 2000 cS‑4
s195;2005 c18 s23
Extra-provincial warrant
196(1) If a provincial judge, magistrate or justice of
another province or territory issues a warrant for the arrest of a person on a
charge of contravening any provision of a statute or regulation of that
province that is similar to this Act or the regulations, a provincial judge or
justice of Alberta within whose jurisdiction that person is or is suspected to
be, may, on satisfactory proof of the handwriting of the provincial judge,
magistrate or justice who issued the warrant, make an endorsement on the
warrant in the form prescribed by the regulations.
(2) A
warrant endorsed under subsection (1) is sufficient authority to
(a) the
person bringing the warrant,
(b) all
persons to whom the warrant was originally directed, and
(c) all
peace officers within the territorial jurisdiction of the provincial judge or
justice so endorsing the warrant,
to execute it within
Alberta and to take the person arrested under it either out of or anywhere in
Alberta and to re‑arrest the person anywhere in Alberta.
(3) A peace officer of Alberta or of any other
province or territory who is passing through Alberta having in the peace
officer’s custody a person arrested in another province or territory under a
warrant endorsed under subsection (1) is entitled to hold, take and re‑arrest
the accused anywhere in Alberta under the warrant without proof of the warrant
or the endorsement of it.
1981 cS‑6.1
s163;1995 c28 s51
Declaration of
non-compliance
197(1) The Executive Director, in addition to any
other rights that the Executive Director or the Commission may have, may, where
the Executive Director considers it to be in the public interest to do so,
apply to the Court of Queen’s Bench for a declaration that a person or company
has not complied with or is not complying with any provision of the Alberta
securities laws.
(2) Neither
the Executive Director nor the Commission is required, before making an
application under subsection (1), to hold a hearing to determine whether the
person or company has not complied with or is not complying with any provision
of the Alberta securities laws.
(3) If
the Court makes a declaration under subsection (1), the Court may,
notwithstanding
(a) the
imposition of any penalty under section 194, or
(b) any
order made under section 198 or 199,
make any order under
this section that the Court considers appropriate with respect to the person or
company.
(4) Without
limiting the generality of subsection (3), an order made under subsection (3)
may include one or more of the following:
(a) an
order that the person or company comply with the provision or the decision;
(b) an
order that the person or company purchase securities of a security holder;
(c) an
order rescinding any transaction relating to trading in securities or exchange
contracts;
(d) an
order requiring the issuance, cancellation, purchase, exchange or disposition
of a security or exchange contract;
(e) an
order prohibiting the voting or exercise of any other right attaching to a
security or exchange contract;
(f) an
order appointing officers and directors in place of or in addition to all or
any of the officers of the issuer that is the subject of the application;
(g) an
order directing a person or company to submit to a review by the Commission of
the person’s or company’s practices and procedures and to institute changes as
directed by the Commission;
(h) an
order directing that the person or company repay to a security holder any part
of the money paid by the security holder for a security or exchange contract;
(i) an
order requiring the person or company to compensate or make restitution to an
aggrieved person or company;
(j) an
order requiring the person or company to pay general or punitive damages to any
other person or company;
(k) an
order requiring the person or company to pay to the Minister any amounts
obtained as a result of the non‑compliance with any provision of the
Alberta securities laws.
(5) An application under this section may be made
ex parte, unless the Court of Queen’s Bench otherwise directs.
RSA 2000 cS‑4
s197;2005 c18 s24;2006 c23 s74
Cease trading order,
etc.
198(1) Where the Commission considers that it is in
the public interest to do so, the Commission may order one or more of the
following:
(a) that
trading in or purchasing cease in respect of any security or exchange contract
as specified in the order;
(b) that
a person or company cease trading in or purchasing securities, exchange
contracts, specified securities or a class of securities or exchange contracts
as specified in the order;
(b.1) that
the registration or recognition of a person or company under Alberta securities
laws be suspended or restricted for such period as is specified in the order or
be terminated, or that terms and conditions be imposed on the registration or
recognition;
(b.2) that
a registrant be reprimanded;
(c) that
any or all of the exemptions contained in the Alberta securities laws do not
apply to the person or company named in the order;
(d) that
a person resign one or more positions that the person holds as a director or
officer of an issuer;
(e) that
a person is prohibited from becoming or acting as a director or officer or as
both a director and an officer of any issuer;
(f) that
a person or company is prohibited from disseminating to the public, or
authorizing the dissemination to the public of, any information, document,
record or other material of any kind that is described in the order;
(g) that
a person or company disseminate to the public, by the method, if any, described
in the order, the information, document, record or other material relating to
the affairs of the registrant or issuer that the Commission considers must be
disseminated;
(h) that
a person or company amend, in the manner specified in the order, any
information or record of any kind disseminated to the public as described in
the order;
(i) if
a person or company has not complied with the Alberta securities laws, that the
person or company pay to the Commission any amounts obtained or payments or
losses avoided as a result of the non‑compliance.
(1.1) The Commission may, after providing
an opportunity to be heard, make an order under subsection (1)(a) to (h) in
respect of a person or company if the person or company
(a) has
been convicted in Canada or elsewhere of an offence
(i) arising from a transaction, business or course of conduct related
to securities or exchange contracts, or
(ii) under laws respecting trading in securities or exchange contracts,
(b) has
been found by a court in Canada or elsewhere to have contravened laws
respecting trading in securities or exchange contracts,
(c) is
subject to an order made by a securities regulatory authority in Canada or
elsewhere imposing sanctions, conditions, restrictions or requirements on the
person or company, or
(d) has
agreed with a securities regulatory authority in Canada or elsewhere to be
subject to sanctions, conditions, restrictions or requirements.
(1.2) The
Commission may, after providing an opportunity to be heard, make an order under
subsection (1)(a) to (h) against a director or officer of a company or of a
person other than an individual who authorizes, permits or acquiesces in the
contravention of Alberta securities laws or conduct contrary to the public
interest.
(2) An
order under subsection (1) , (1.1) or (1.2) is subject to any terms and
conditions that the Commission may impose.
(3) The Commission shall not make an order under
subsection (1) without conducting a hearing.
RSA 2000 cS‑4
s198;2005 c18 s25;2006 c30 s44;
2007 c10 s19
Administrative penalty
199(1) If the Commission, after a hearing,
(a) determines
that
(i) a person or company has contravened or failed to comply with any
provision of Alberta securities laws, or
(ii) a director or officer of a person or company or a person other
than an individual authorized, permitted or acquiesced in a contravention or
failure to comply with any provision of Alberta securities laws by the person
or company,
and
(b) considers
it to be in the public interest to make the order,
the Commission may
order the person or company to pay an administrative penalty of not more than
$1 000 000 for each contravention or failure to comply.
(2) The Commission may make an order pursuant to
this section notwithstanding the imposition of any other penalty or sanction on
the person or company or the making of any other order by the Commission
related to the same matter.
RSA 2000 cS‑4
s199;2005 c18 s26;2006 c30 s45
Filing decision with
Court
200(1) Where the Commission has made a decision after
conducting a hearing, the Commission may at any time file a certified copy of
that decision with the clerk of the Court of Queen’s Bench, and on being filed
with the clerk of the Court of Queen’s Bench that decision has the same force
and effect as if it were a judgment of the Court of Queen’s Bench.
(2) Where a decision filed under subsection (1)
includes an administrative penalty levied pursuant to section 199, the
administrative penalty in the amount specified in the decision may be collected
as a judgment of the Court of Queen’s Bench for the recovery of debt.
1991 c33 s33;1995 c28
s62;1999 c15 s36
Limitation period
201 No proceedings under this Part shall be
commenced in a court or before the Commission more than 6 years from the day of
the occurrence of the event that gave rise to the proceedings.
1981 cS‑6.1
s167;1988 c7 s1(32);1991 c33 s34;1995 c28 s62
Payment of costs
202(1) If, in respect of a person or company whose
affairs were the subject of an investigation, the Commission or the Executive
Director
(a) is
satisfied that the person or company has not complied with, or is not complying
with, any provision of the Alberta securities laws, or
(b) considers
that the person or company has not acted in the public interest,
the Commission or the
Executive Director, as the case may be, may, after conducting a hearing, order
the person or company to pay, subject to the regulations, the costs of the
investigation, including any costs incurred in respect of services provided by
persons appointed or engaged under section 28, 41 or 43 or the appearance of
any witnesses under this Act.
(2) If,
in respect of a person or company whose affairs were the subject of a hearing,
the Commission or the Executive Director, as the case may be, after conducting
the hearing
(a) is
satisfied that the person or company has not complied with, or is not complying
with, any provision of the Alberta securities laws, or
(b) considers
that the person or company has not acted in the public interest,
the Commission or the
Executive Director, as the case may be, may order the person or company to pay,
subject to the regulations, the costs of or related to the hearing that are
incurred by or on behalf of the Commission or the Executive Director, including
any costs incurred in respect of services provided by persons appointed or
engaged under section 28, 41 or 43 or the appearance of any witnesses under
this Act.
(3) Where
a person or company is guilty of an offence under the Alberta securities laws,
the Executive Director may order the person or company to pay, subject to the
regulations, the costs of any investigation carried out in respect of that
offence, including any costs incurred in respect of services provided by
persons appointed or engaged under section 28, 41 or 43 and the appearance of
any witnesses under this Act.
(4) The
Executive Director may prepare and file with the clerk of the Court of Queen’s
Bench a certificate certifying the amount of the costs that the person or company
is required to pay under subsection (1), (2) or (3).
(5) A
certificate filed under subsection (4) with the clerk of the Court of Queen’s
Bench has the same force and effect as if it were a judgment of the Court of
Queen’s Bench for the recovery of debt in the amount specified in the
certificate together with costs of filing.
(6) The Alberta
Rules of Court with respect to costs and the taxation of costs do not apply
to costs referred to in this section.
1991 c33 s35;1995 c28
s53;2000 c17 s28
Part 17
Civil Liability
Civil liability ‑
prospectus
203(1) If a prospectus contains a misrepresentation, a
purchaser who purchases a security offered by it during the period of
distribution has, without regard to whether the purchaser relied on the
misrepresentation, a right of action for damages against
(a) the
issuer or a selling security holder on whose behalf the distribution is made,
(b) each
underwriter of the securities who is required to sign the certificate referred
to in section 117,
(c) every
director of the issuer at the time the prospectus was filed,
(d) every
person or company whose consent has been filed pursuant to a requirement of the
regulations but only with respect to reports, opinions or statements that have
been made by them, and
(e) every
person or company, other than the ones referred to in clauses (a) to (d), who
signed the prospectus.
(2) If
a prospectus contains a misrepresentation, a purchaser who purchases a security
offered by it during the period of distribution has, without regard to whether
the purchaser relied on the misrepresentation, a right of action for rescission
against
(a) the
issuer or a selling security holder on whose behalf the distribution is made,
(b) each
underwriter of the securities who is required to sign the certificate referred
to in section 117, and
(c) any
other underwriter of the securities.
(3) If
the purchaser elects to exercise a right of action for rescission against a
person or company, the purchaser shall have no right of action for damages against
that person or company.
(4) No
person or company is liable under subsection (1) or (2) if the person or
company proves that the purchaser purchased the securities with knowledge of
the misrepresentation.
(5) No
person or company, other than the issuer or selling security holder, is liable
under subsection (1) or (2) if the person or company proves
(a) that
the prospectus was filed without the person’s or company’s knowledge or consent
and that, on becoming aware of its filing, the person or company promptly gave
reasonable general notice that it was so filed;
(b) that,
after the issue of a receipt for the prospectus and before the purchase of the
securities by the purchaser, on becoming aware of any misrepresentation in the
prospectus the person or company withdrew the person’s or company’s consent to
it and gave reasonable general notice of the withdrawal and the reason for it;
(c) that,
with respect to any part of the prospectus purporting to be made on the
authority of an expert or purporting to be a copy of or an extract from a
report, opinion or statement of an expert, the person or company had no
reasonable grounds to believe and did not believe that
(i) there had been a misrepresentation,
(ii) the part of the prospectus did not fairly represent the report,
opinion or statement of the expert, or
(iii) the part of the prospectus was not a fair copy of or extract from
the report, opinion or statement of the expert;
(d) that,
with respect to any part of the prospectus purporting to be made on the
person’s or company’s own authority as an expert or purporting to be a copy of
or an extract from the person’s or company’s own report, opinion or statement
as an expert, but that contains a misrepresentation attributable to a failure
to represent fairly the person’s or company’s report, opinion or statement as
an expert,
(i) the person or company had, after reasonable investigation,
reasonable grounds to believe and did believe that the part of the prospectus
fairly represented the person’s or company’s report, opinion or statement, or
(ii) on becoming aware that the part of the prospectus did not fairly
represent the person’s or company’s report, opinion or statement as an expert,
the person or company promptly advised the Executive Director and gave
reasonable general notice that misuse had been made of it and that the person
or company would not be responsible for that part of the prospectus;
(e) that,
with respect to a false statement purporting to be a statement made by an
official person or contained in what purports to be a copy of or extract from a
public official document,
(i) it was a correct and fair representation of the statement or copy
of or extract from the document, and
(ii) the person or company had reasonable grounds to believe and did
believe that the statement was true.
(6) No
person or company, other than the issuer or selling security holder, is liable
under subsection (1) or (2) with respect to any part of the prospectus
purporting to be made on the person’s or company’s own authority as an expert
or purporting to be a copy of or an extract from the person’s or company’s own
report, opinion or statement as an expert unless the person or company
(a) did
not conduct an investigation sufficient to provide reasonable grounds for a
belief that there had been no misrepresentation, or
(b) believed
there had been a misrepresentation.
(7) No
person or company, other than the issuer or selling security holder, is liable
under subsection (1) or (2) with respect to any part of the prospectus not
purporting to be made on the authority of an expert and not purporting to be a
copy of or an extract from a report, opinion or statement of an expert unless
the person or company
(a) did
not conduct an investigation sufficient to provide reasonable grounds for a
belief that there had been no misrepresentation, or
(b) believed
there had been a misrepresentation.
(8) No
underwriter is liable for more than the total public offering price represented
by the portion of the distribution underwritten by the underwriter.
(9) In
an action for damages pursuant to subsection (1), the defendant is not liable
for all or any portion of the damages that the defendant proves do not
represent the depreciation in value of the security as a result of the misrepresentation
relied on.
(10) All
or any one or more of the persons or companies specified in subsection (1) that
are found to be liable or accept liability under this section are jointly and
severally liable.
(11) If
in a distribution of securities
(a) no
receipt for a prospectus was issued,
(b) no
exemption exists or was given exempting the filing of a prospectus, and
(c) a
misrepresentation existed in respect of the distribution,
each purchaser of the
securities has a right of rescission and a right of action for damages as if a
prospectus containing a misrepresentation had been filed in respect of the
distribution.
(12) Repealed
2005 c18 s27.
(13) The
amount recoverable under this section shall not exceed the price at which the
securities were offered to the public.
(13.1) A defendant who is found liable to
pay a sum in damages may recover a contribution, in whole or in part, from a
person who is jointly and severally liable under this section to make the same
payment in the same cause of action unless, in all circumstances of the case,
the court is satisfied that it would not be just and equitable.
(14) The
right of action for rescission or damages conferred by this section is in
addition to and does not derogate from any other right that the purchaser may
have at law.
(15) If
a misrepresentation is contained in a record incorporated by reference in, or
deemed incorporated into, a prospectus, the misrepresentation is deemed to be
contained in the prospectus.
RSA 2000 cS‑4
s203;2003 c32 s27;2005 c18 s27;
2007 c10 s20
Civil liability -
offering memorandum
204(1) If
an offering memorandum contains a misrepresentation when a person or company
purchases a security offered by the offering memorandum, the purchaser has,
without regard to whether the purchaser relied on the misrepresentation, a
right of action
(a) for
damages against
(i) the issuer,
(ii) every director of the issuer at the date of the offering
memorandum, and
(iii) every person or company who signed the offering memorandum,
and
(b) for
rescission against the issuer.
(2) Notwithstanding subsection (1)(b),
if the purchaser elects to exercise a right of rescission against the issuer,
the purchaser has no right of action for damages against a person or company
referred to in subsection (1)(a).
(3) Where a misrepresentation is
contained in an offering memorandum, no person or company is liable under
subsection (1)
(a) if
the person or company proves that the purchaser had knowledge of the
misrepresentation;
(b) if
the person or company proves that the offering memorandum was sent to the
purchaser without the person’s or company’s knowledge or consent and that, on
becoming aware of its being sent, the person or company promptly gave
reasonable notice to the issuer that it was sent without the knowledge and
consent of the person or company;
(c) if
the person or company proves that the person or company, on becoming aware of
the misrepresentation in the offering memorandum, withdrew the person’s or
company’s consent to the offering memorandum and gave reasonable notice to the
issuer of the withdrawal and the reason for it;
(d) if,
with respect to any part of the offering memorandum purporting to be made on
the authority of an expert or purporting to be a copy of, or an extract from, a
report, opinion or statement of an expert, the person or company proves that
the person or company did not have any reasonable grounds to believe and did
not believe that
(i) there had been a misrepresentation, or
(ii) the relevant part of the offering memorandum
(A) did not fairly represent the report, opinion
or statement of the expert, or
(B) was not a fair copy of, or an extract from,
the report, opinion or statement of the expert;
(e) with
respect to any part of the offering memorandum not purporting to be made on the
authority of an expert and not purporting to be a copy of, or an extract from,
a report, opinion or statement of an expert, unless the person or company
(i) did not conduct an investigation sufficient to provide reasonable
grounds for a belief that there had been no misrepresentation, or
(ii) believed there had been a misrepresentation.
(4) The amount recoverable under this
section shall not exceed the price at which the securities were offered under
the offering memorandum.
(5) Subsection (3)(b) to (e) do not
apply to the issuer.
(6) In an action for damages pursuant to
subsection (1), the defendant is not liable for all or any part of the damages
that the defendant proves do not represent the depreciation in value of the
security as a result of the misrepresentation.
(7) All or any one or more of the
persons or companies specified in subsection (1) that are found to be liable or
accept liability under this section are jointly and severally liable.
(8) A defendant who is found liable to
pay a sum in damages may recover a contribution, in whole or in part, from a
person who is jointly and severally liable under this section to make the same
payment in the same cause of action unless, in all circumstances of the case,
the court is satisfied that it would not be just and equitable.
(9) The right of action for rescission
or damages conferred by this section is in addition to and does not derogate
from any other right that the purchaser may have at law.
(10) If a misrepresentation is contained
in a record incorporated by reference in, or deemed incorporated into, an
offering memorandum, the misrepresentation is deemed to be contained in the
offering memorandum.
RSA 2000 cS‑4
s204;2003 c32 s28;2007 c10 s21
Civil liability ‑
circular
205(1) If
a take‑over bid circular or a notice of change or variation is sent to
the holders of securities of an offeree issuer or to the holders of securities
convertible into securities of an offeree issuer as required under the
regulations and that document contains a misrepresentation, each of those
holders may, without regard to whether the holders relied on the
misrepresentation, elect to exercise a right of action
(a) for
rescission or damages against the offeror, or
(b) for
damages against
(i) every person who, at the time the circular or notice was signed,
was a director of the offeror,
(ii) every person or company whose consent has been filed pursuant to
a requirement of the regulations, but only with respect to reports, opinions or
statements that have been made by them, and
(iii) each person, other than the ones referred to in subclause (i),
who signed a certificate in the circular or notice.
(2) If
a directors’ circular or an individual director’s or officer’s circular or any
notice of change or variation to one of those circulars is sent to security
holders of an offeree issuer as required under the regulations and that
document contains a misrepresentation, each of the persons or companies to whom
the circular or notice was sent is deemed to have relied on the
misrepresentation, and
(a) in
respect of a misrepresentation in a directors’ circular or a notice of change
or variation to it, has a right of action for damages against
(i) every director or officer who signed the circular or notice of
change or variation, and
(ii) every person or company whose consent has
been filed pursuant to a requirement of the regulations, but only with respect
to reports, opinions or statements that have been made by them,
and
(b) in
respect of a misrepresentation in an individual director’s or officer’s
circular or a notice of change or variation to it, has a right of action for
damages against
(i) every director or officer who signed the circular or notice of
change or variation, and
(ii) every person or company whose consent has been filed pursuant to
the regulations, but only with respect to reports, opinions or statements that
have been made by them.
(3) The
provisions of subsection (1) apply to an issuer bid circular or a notice of
change or variation that contains a misrepresentation.
(4) No
person or company is liable under subsection (1), (2) or (3) if the person or
company proves that the security holder had knowledge of the misrepresentation.
(5) No
person or company, other than the offeror, is liable under subsection (1), (2)
or (3) if the person or company proves that
(a) the
circular or the notice of change or variation in respect of it, as the case may
be, was sent without the person’s or company’s knowledge or consent and that,
on becoming aware of it, the person or company promptly gave reasonable general
notice that it was so sent;
(b) after
the sending of the circular or the notice of change or variation in respect of
it, as the case may be, on becoming aware of any misrepresentation in the circular
or the notice of change or variation in respect of it, the person or company
withdrew the person’s or company’s consent to it and gave reasonable general
notice of the withdrawal and the reason for it;
(c) with
respect to any part of the circular or the notice of change or variation in
respect of it purporting to be made on the authority of an expert or purporting
to be a copy of or an extract from a report, opinion or statement of an expert,
the person or company had no reasonable grounds to believe and did not believe
(i) that there had been a misrepresentation,
(ii) that the part of the circular or the change or variation did not
fairly represent the report, opinion or statement of the expert, or
(iii) that the part of the circular or the change or variation was not
a fair copy of or extract from the report, opinion or statement of the expert;
(d) with
respect to any part of the circular or the notice of change or variation in
respect of it purporting to be made on the person’s or company’s own authority
as an expert or purporting to be a copy of or an extract from the person’s or
company’s own report, opinion or statement as an expert, but that contains a
misrepresentation attributable to a failure to represent fairly the person’s or
company’s report, opinion or statement as an expert,
(i) the person or company had, after conducting an investigation,
reasonable grounds to believe and did believe that the part of the circular
fairly represented the person’s or company’s report, opinion or statement as an
expert, or
(ii) on becoming aware that the part of the circular did not fairly
represent the person’s or company’s report, opinion or statement as an expert,
the person or company promptly advised the Executive Director and gave
reasonable general notice that misuse had been made of it and that the person
or company would not be responsible for that part of the circular;
(e) with
respect to a false statement purporting to be a statement made by an official
person or contained in what purports to be a copy of or extract from a public
official document,
(i) it was a correct and fair representation of the statement or copy
of or extract from the document, and
(ii) the person or company had reasonable grounds to believe and did
believe that the statement was true.
(6) No
person or company, other than the offeror, is liable under subsection (1), (2)
or (3) with respect to any part of the circular or the notice of change or
variation in respect of it purporting to be made on the person’s or company’s
own authority as an expert or purporting to be a copy of or an extract from the
person’s or company’s own report, opinion or statement as an expert unless the
person or company
(a) did
not conduct an investigation sufficient to provide reasonable grounds for a
belief that there had been no misrepresentation, or
(b) believed
there had been a misrepresentation.
(7) No
person or company, other than the offeror, is liable under subsection (1), (2)
or (3) with respect to any part of the circular or the notice of change or
variation in respect of it not purporting to be made on the authority of an
expert and not purporting to be a copy of or an extract from a report, opinion
or statement of an expert unless the person or company
(a) did
not conduct an investigation sufficient to provide reasonable grounds for a
belief that there had been no misrepresentation, or
(b) believed
there had been a misrepresentation.
(8) All
or any one or more of the persons or companies specified in subsection (1), (2)
or (3) that are found to be liable or accept liability under this section are
jointly and severally liable.
(9) In
an action for damages pursuant to subsection (1), (2) or (3) based on a
misrepresentation affecting a security offered by the offeror in exchange for securities
of the offeree issuer, the defendant is not liable for all or any portion of
the damages that the defendant proves do not represent the depreciation in
value of the security as a result of the misrepresentation.
(10) Repealed
2006 c30 s47.
(10.1) A defendant who is found liable to
pay a sum in damages may recover a contribution, in whole or in part, from a
person who is jointly and severally liable under this section to make the same
payment in the same cause of action unless, in all circumstances of the case,
the court is satisfied that it would not be just and equitable.
(11) The
right of action for rescission or damages conferred by this section is in
addition to and without derogation from any other right that the security
holders may have at law.
(12) If
a misrepresentation is contained in a record incorporated by reference in, or
deemed incorporated into, a circular or a notice of change or variation, the
misrepresentation is deemed to be contained in the circular or the notice of
change or variation.
RSA 2000 cS‑4
s205;2003 c32 s29;
2006 c30 s47;2007 c10 s22
Defence to liability for
misrepresentation
205.1 A person or company is not liable in an
action under section 203, 204 or 205 for a misrepresentation in forward‑looking
information if the person or company proves all of the following:
(a) the
document containing the forward‑looking information contained, proximate
to that information,
(i) reasonable cautionary language identifying the forward‑looking
information as such, and identifying material factors that could cause actual
results to differ materially from a conclusion, forecast or projection in the
forward‑looking information, and
(ii) a statement of the material factors or assumptions that were
applied in drawing a conclusion or making a forecast or projection set out in
the forward‑looking information;
(b) the person or company had a reasonable basis
for drawing the conclusions or making the forecasts and projections set out in
the forward‑looking information.
2006 c30 s48
Liability of dealer,
offeror or issuer
206 A person who is
(a) a
purchaser of a security to whom a prospectus was required to be sent in
compliance with section 129, but was not so sent,
(b) a
security holder of an offeree issuer or another person or company that is not a
security holder of an offeree issuer to which
(i) a take‑over bid and take‑over bid circular,
(ii) an issuer bid and issuer bid circular, or
(iii) a notice of change or variation to that bid or circular referred
to in subclause (i) or (ii)
was required to be sent
under the regulations, but was not so sent, or
(c) a
purchaser of a security to whom an offering memorandum was required to be sent
in compliance with Alberta securities laws but was not sent within the time
prescribed for sending the offering memorandum,
has a right of action for rescission or damages against the
dealer, offeror or issuer, as the case may be, who did not comply with the
statutory requirement.
RSA 2000 cS‑4
s206;2003 c32 s30;2006 c30 s49
Liability ‑ material
fact or change
207(1) Every person or company in a special
relationship with a reporting issuer that
(a) purchases
or sells securities of the reporting issuer, and
(b) has
knowledge of a material fact or material change in respect of the reporting issuer
that has not been generally disclosed,
is liable to
compensate the seller or purchaser of the securities, as the case may be, for
damages as a result of the trade.
(2) Subsection
(1) does not apply to the person or company if the person or company
(a) proves
that the person or company reasonably believed that the material fact or
material change had been generally disclosed;
(b) proves
that the material fact or material change was known or ought reasonably to have
been known to the seller or purchaser, as the case may be;
(c) proves
that
(i) the person or company had knowledge of the material fact or
material change by reason only that the material fact or material change was
known to one or more of that person’s or company’s directors, officers, partners,
employees or agents,
(ii) in the case where that person is an individual, that person did
not have any actual knowledge of the material fact or material change,
(iii) the decision to purchase or sell the securities was made by that
person’s or company’s director, officer, partner, employee or agent who did not
have any actual knowledge of the material fact or material change, and
(iv) the person’s or company’s director, officer, partner, employee or
agent who had actual knowledge of the material fact or material change did not,
with respect to the purchase or sale of the securities, give any specific
advice based on that knowledge to that person’s or company’s director, officer,
partner, employee or agent who made the decision to purchase or sell the
securities;
(d) proves
that the person or company
(i) purchased or sold the securities as an agent for another person
or company pursuant to
(A) an unsolicited order, or
(B) a solicited order given prior to the person
or company that acted as agent having knowledge of the material fact or
material change,
and
(ii) did not, with respect to the purchase or sale of the securities,
give any specific advice to that other person or company based on the knowledge
of that material fact or change;
(e) proves
that the purchase or sale of the securities was made pursuant to the person’s
or company’s participation in an automatic dividend reinvestment plan, an
automatic security purchase plan or another similar automatic plan that the
person or company had entered into prior to the person or company acquiring
knowledge of the material fact or material change;
(f) proves
that the purchase or sale of the securities was made pursuant to a legal
obligation that the person or company had entered into prior to the person or
company acquiring knowledge of the material fact or material change;
(g) proves
that the person or company, as an agent for another person or company,
purchased or sold the securities as a result of that other person’s or
company’s
(i) participation in an automatic dividend reinvestment plan, an
automatic security purchase plan or another similar automatic plan, or
(ii) legal obligation.
(3) Every
(a) reporting
issuer,
(b) person
or company in a special relationship with a reporting issuer, or
(c) person
or company that proposes
(i) to make a take‑over bid, as defined in Part 14, for the
securities of a reporting issuer,
(ii) to become a party to a reorganization, amalgamation, merger,
arrangement or similar business combination with a reporting issuer, or
(iii) to acquire a substantial portion of the property of a reporting
issuer,
who informs another
person or company of a material fact or material change with respect to that
reporting issuer that has not been generally disclosed is liable to compensate
for damages any person or company that afterwards sells securities of the
reporting issuer to or purchases securities of the reporting issuer from, the
person or company that received the information.
(4) Subsection
(3) does not apply if
(a) the
person or company that informed the other person or company proves that the
informing person or company reasonably believed that the material fact or
material change had been generally disclosed,
(b) the
material fact or material change was known or ought reasonably to have been
known to the seller or purchaser, as the case may be,
(c) in
the case of an action against a reporting issuer or a person or company in a
special relationship with the reporting issuer, the information was given when it
was necessary in the course of business, or
(d) in
the case of an action against a person or company described in subsection
(3)(c)(i), (ii) or (iii), the information was given when it was necessary in
the course of business for the carrying out of the take‑over bid,
business combination or acquisition.
(5) Every
person or company in a special relationship with a reporting issuer
(a) who
is an insider or an associate or an affiliate of the reporting issuer, and
(b) who
(i) purchases or sells the securities of the reporting issuer with
knowledge of a material fact or material change in respect of the reporting
issuer that has not been generally disclosed, or
(ii) directly or indirectly communicates, other than when it is
necessary in the course of business, knowledge of a material fact or material
change in respect of the reporting issuer that has not been generally
disclosed,
is accountable to the
reporting issuer for any benefit or advantage received or receivable by the
person or company as a result of the purchase, sale or communication, as the
case may be.
(6) Subsection
(5) does not apply if the person or company in the special relationship
reasonably believed that the material fact or material change had been
generally disclosed.
(7) Any
person or company that has access to information concerning
(a) the
investment program of a mutual fund, or
(b) the
investment portfolio managed for a client by
(i) a portfolio manager, or
(ii) a registered dealer acting as a portfolio manager,
and uses the
information for the person’s or company’s direct benefit or advantage to
purchase or sell securities of an issuer for the person’s or company’s accounts
is accountable to the mutual fund or the client of the portfolio manager or
registered dealer, as the case may be, for any benefit or advantage received or
receivable as a result of the purchase or sale, if the securities of that
issuer are included, as the case may be, in the investment portfolio managed
for the client by the portfolio manager or registered dealer, or the portfolio
securities of the mutual fund.
(8) All
or any one or more of the persons or companies
(a) in
a special relationship with a reporting issuer, and
(b) liable
under subsection (1) or (3),
as to the same
transaction or series of transactions, are jointly and severally liable.
(9) In
assessing damages under subsection (1) or (3) the court shall consider,
(a) if
the plaintiff is a purchaser, the price that the plaintiff paid for the
security less the weighted average market price of the security as determined
with respect to the first 20 trading days for that security following the
general disclosure of the material fact or material change, or
(b) if
the plaintiff is a vendor, the weighted average market price of the security as
determined with respect to the first 20 trading days for that security
following the general disclosure of the material fact or material change less
the price that the plaintiff received for the security.
(10) Notwithstanding
subsection (9), the court may consider any other measure of damages as may be
relevant in the circumstances.
(11) For
the purpose of subsections (1), (3) and (5), a security of the reporting issuer
includes
(a) a
put, call, option or other right or obligation to purchase or sell securities
of the reporting issuer, or
(b) a security, the market price of which varies
materially with the market price of the securities of the reporting issuer.
1981 cS‑6.1
s171;1982 c32 s31;1984 c64 s53;1988 c7 s1(42);
1989 c19 s14
Action by the Executive
Director
208(1) On application by the Executive Director or by
any person or company that was at the time of a transaction referred to in
section 207(1) or (3), or is at the time of the application, a security holder
of the reporting issuer, the Court of Queen’s Bench may make an order
(a) requiring
the Executive Director, or
(b) authorizing
the person or company or the Executive Director,
to commence or
continue an action in the name of and on behalf of the reporting issuer to
enforce the liability created by section 207(5).
(2) The
Court shall not make an order under subsection (1) unless it is satisfied that
(a) the
Executive Director or the person or company has reasonable grounds for
believing that the reporting issuer has a cause of action under section 207(5),
and
(b) either
(i) the reporting issuer has refused or failed to commence an action
under section 207 within 60 days from the day that it received a written
request from the Executive Director or the person or company to do so, or
(ii) the reporting issuer has failed to prosecute diligently an action
commenced by it under section 207.
(3) On
application by the Executive Director or by any person or company that was at
the time of a transaction referred to in section 207(7), or is at the time of
the application, a security holder of the investment fund, the Court of Queen’s
Bench may make an order,
(a) requiring
the Executive Director, or
(b) authorizing
the person or company or the Executive Director,
to commence and
prosecute or to continue an action in the name of and on behalf of the
investment fund to enforce the liability created by section 207(7).
(4) The
Court shall not make an order under subsection (3) unless it is satisfied that
(a) the
Executive Director or the person or company has reasonable grounds for
believing that the investment fund has a cause of action under section 207(7),
and
(b) the
investment fund has either
(i) refused or failed to commence an action under section 207(7)
within 60 days from the day that it received a written request from the
Executive Director or the person or company to do so, or
(ii) failed to prosecute diligently an action commenced by it under
section 207(7).
(5) If
an action under section 207(5) or (7) is commenced, commenced and prosecuted or
continued, by the directors of a reporting issuer, the Court of Queen’s Bench
may order that the costs properly incurred by the directors in commencing,
commencing and prosecuting or continuing the action, as the case may be, shall
be paid by the reporting issuer, if the Court is satisfied that the action was,
on its face, in the best interests of the reporting issuer and its security
holders.
(6) If
an action under section 207(5) or (7) is commenced, commenced and prosecuted or
continued, by a person or company that is a security holder of the reporting
issuer, the Court of Queen’s Bench may
order that the costs properly incurred by that person or company in commencing,
commencing and prosecuting or continuing the action, as the case may be, must be
paid by the reporting issuer, if the Court is satisfied that
(a) the
reporting issuer failed to commence the action or had commenced it but had
failed to prosecute it diligently, and
(b) the
continuance of the action is, on its face, in the best interests of the
reporting issuer and the security holders of the reporting issuer.
(7) When
an action under section 207(5) or (7) is commenced, commenced and prosecuted or
continued, by the Executive Director, the Court of Queen’s Bench shall order
the reporting issuer to pay all costs properly incurred by the Executive
Director in commencing, commencing and prosecuting or continuing the action, as
the case may be.
(8) In
determining whether an action or its continuance is, on its face, in the best
interests of a reporting issuer and its security holders, the Court shall
consider the relationship between
(a) the
potential benefit to be derived from the action by the reporting issuer and its
security holders, and
(b) the
cost involved in respect of the action.
(9) Notice
of every application under subsection (1) or (3) must be given to the Executive
Director, the reporting issuer, or the investment fund, as the case may be, and
each of them may appear and be heard.
(10) In
every action commenced, commenced and
prosecuted or continued by the Executive Director under this section, the
reporting issuer or investment fund, as the case may be, shall provide to the
Executive Director all books, records, documents and other material or
information
(a) that
are
(i) known to the reporting issuer or investment fund, or
(ii) reasonably ascertainable by the reporting issuer or investment
fund, and
(b) that are relevant to the action.
RSA 2000 cS‑4
s208;2006 c30 s50
Rescission of contract
209(1) If section 94(1) applies to a contract and the
section is not complied with, a person or company that has entered into the
contract may rescind the contract only if the person or company is the owner of
the securities at the time notice for rescission is given.
(2) A
person or company may rescind a contract under subsection (1) by sending
written notice of rescission to the registered dealer within 60 days from the
day of the delivery of the security to or by the person, as the case may be.
(3) If
section 90(1) applies to a contract and a registered dealer has failed to
comply with the regulations by not disclosing that the registered dealer acted
as principal, a person or company that has entered into the contract may
rescind the contract.
(4) A
person or company may rescind a contract under subsection (3) by sending
written notice of rescission to the registered dealer within 7 days from the
day of the delivery of the written confirmation of the contract.
(5) In
an action respecting a rescission to which this section applies, the onus of
proving compliance with section 90 or 94 is on the registered dealer.
(6) No action respecting a rescission under this
section shall be commenced after the expiration of a period of 90 days from the
day of the sending of the notice under subsection (2) or (4).
1981 cS‑6.1
s173;1994 c23 s43
Rescission re offering
memorandum
209.1 A purchaser of a security to whom an
offering memorandum is required to be sent may rescind the contract to purchase
the security by sending written notice to the issuer not later than midnight on
the 2nd day, exclusive of Saturdays and holidays, after the purchaser signs the
agreement to purchase the securities.
2003 c32 s31
Rescission by purchase ‑
mutual fund
210(1) Every purchaser of a security of a mutual fund
may, if the amount of the purchase does not exceed the sum of $50 000,
rescind the purchase.
(2) A
purchaser may rescind a purchase under subsection (1) by sending written notice
of the rescission to the registered dealer from whom the purchase was made
within
(a) 48
hours from the time the purchaser received the confirmation for a lump sum
purchase, or
(b) 60
days from the day the purchaser received the confirmation for the initial
payment under a contractual plan.
(3) Subject
to subsection (5), the amount the purchaser is entitled to recover on exercise
of the right to rescind under this section shall not exceed the net asset value
of the securities purchased at the time the right to rescind is exercised.
(4) The
right to rescind a purchase made under a contractual plan may be exercised only
with respect to payments scheduled to be made within the time specified in
subsection (2) for rescinding a purchase made under a contractual plan.
(5) Every registered dealer from whom the purchase
was made shall reimburse the purchaser who has exercised the purchaser’s right
of rescission in accordance with this section for the amount of sales charges
and fees relevant to the investment of the purchaser in the mutual fund in
respect of the shares or units of which the notice of rescission was given.
1981 cS‑6.1 s174
Limitation period
211 Unless otherwise provided in this Act, no action
may be commenced to enforce a right created by this Part more than,
(a) in
the case of an action for rescission, 180 days from the day of the transaction
that gave rise to the cause of action, or
(b) in
the case of any action, other than an action for rescission, the earlier of
(i) 180 days from the day that the plaintiff first had knowledge of
the facts giving rise to the cause of action, or
(ii) 3 years from the day of the transaction that
gave rise to the cause of action.
RSA 2000 cS‑4
s211;2003 c32 s32
Part 17.01
Civil Liability for Secondary
Market Disclosure
Definitions
211.01 In this Part,
(a) “compensation”
means compensation received during the 12‑month period immediately
preceding the day on which the misrepresentation was made or on which the
failure to make timely disclosure first occurred, together with the fair market
value of all deferred compensation including, without limitation, options,
pension benefits and stock appreciation rights, granted during the same period,
valued as of the date that such compensation is awarded;
(b) “core
document” means,
(i) where used in relation to
(A) a director of a responsible issuer who is
not also an officer of the responsible issuer,
(B) an influential person, other than an officer
of the responsible issuer or an investment fund manager where the responsible
issuer is an investment fund, or
(C) a director or officer of an influential
person who is not also an officer of the responsible issuer, other than an
officer of an investment fund manager,
a prospectus, a
take-over bid circular, an issuer bid circular, a directors’ circular, a rights
offering circular, management’s discussion and analysis, an annual information
form, an information circular, annual financial statements and interim
financial statements of the responsible issuer;
(ii) where used in relation to
(A) a responsible issuer or an officer of the
responsible issuer,
(B) an investment fund manager where the
responsible issuer is an investment fund, or
(C) an officer of an investment fund manager
where the responsible issuer is an investment fund,
a prospectus, a
take-over bid circular, an issuer bid circular, a directors’ circular, a rights
offering circular, management’s discussion and analysis, an annual information
form, an information circular, annual financial statements, interim financial
statements and a material change report required under section 146 of the
responsible issuer, and
(iii) such other documents as may be prescribed by regulation for the
purposes of this definition;
(c) “document”
means any written communication, including a communication prepared and
transmitted only in electronic form,
(i) that is required to be filed with the Commission, or
(ii) that is not required to be filed with the Commission and
(A) that is filed with the Commission,
(B) that is filed or required to be filed with a
government or an agency of a government under applicable securities or
corporate law or with any exchange or
quotation and trade reporting system under its bylaws, rules or regulations, or
(C) that is any other communication the content
of which would reasonably be expected to affect the market price or value of a
security of the responsible issuer;
(d) “expert”
means a person or company whose profession gives authority to a statement made
in a professional capacity by the person or company, including, without
limitation, an accountant, actuary, appraiser, auditor, engineer, financial
analyst, geologist or lawyer but not including an entity that is an approved
rating organization;
(e) “failure
to make timely disclosure” means a failure to disclose a material change in the
manner and at the time required under this Act;
(f) “influential
person” means, in respect of a responsible issuer,
(i) a control person,
(ii) a promoter,
(iii) an insider who is not a director or officer of the responsible
issuer, or
(iv) an investment fund manager, if the responsible issuer is an
investment fund;
(g) “issuer’s
security” means a security of a responsible issuer and includes a security
(i) the market price or value of which, or payment obligations under
which, are derived from or based on a security of the responsible issuer, and
(ii) that is created by a person or company on behalf of the
responsible issuer or is guaranteed by the responsible issuer;
(h) “liability
limit” means,
(i) in the case of a responsible issuer, the greater of
(A) 5% of its market capitalization as defined
in the regulations, and
(B) $1 000 000,
(ii) in the case of a director or officer of a responsible issuer, the
greater of
(A) $25 000, and
(B) 50% of the aggregate of the director’s or
officer’s compensation from the responsible issuer and its affiliates,
(iii) in the case of an influential person who is not an individual,
the greater of
(A) 5% of its market capitalization as defined
in the regulations, and
(B) $1 000 000,
(iv) in the case of an influential person who is an individual, the
greater of
(A) $25 000, and
(B) 50% of the aggregate of the influential
person’s compensation from the responsible issuer and its affiliates,
(v) in the case of a director or officer of an influential person,
the greater of
(A) $25 000, and
(B) 50% of the aggregate of the director’s or
officer’s compensation from the influential person and its affiliates,
(vi) in the case of an expert, the greater of
(A) $1 000 000, and
(B) the revenue that the expert and the
affiliates of the expert have earned from the responsible issuer and its
affiliates during the 12 months preceding the misrepresentation,
and
(vii) in the case of each person who made a public oral statement,
other than an individual referred to in subclause (iv), (v) or (vi), the
greater of
(A) $25 000, and
(B) 50% of the aggregate of the person’s
compensation from the responsible issuer and its affiliates;
(i) “management’s
discussion and analysis” means the section of an annual information form,
annual report or other document that contains management’s discussion and
analysis of the financial condition and results of operations of a responsible
issuer as required under Alberta securities laws;
(j) “public
oral statement” means an oral statement made in circumstances in which a
reasonable person would believe that information contained in the statement
will become generally disclosed;
(k) “release”
means, with respect to information or a document, to file with the Commission
or any other securities regulatory authority in Canada or an exchange or to
otherwise make available to the public;
(l) “responsible
issuer” means
(i) a reporting issuer, or
(ii) any other issuer with a real and substantial connection to
Alberta, any of whose securities are publicly traded;
(m) “trading
day” means a day during which the principal market as defined in the
regulations for the security is open for trading.
2006 c30 s52
Application
211.02 This Part does not apply to
(a) the
purchase of a security offered by a prospectus during the period of
distribution,
(b) the
acquisition of an issuer’s security pursuant to a distribution that is exempt
from section 110, except as may be prescribed by regulation,
(c) the
acquisition or disposition of an issuer’s security in connection with or
pursuant to a take-over bid or issuer bid, except as may be prescribed by
regulation, or
(d) such
other transactions or class of transactions as may be prescribed by regulation.
2006 c30 s52
Liability for secondary
market disclosure
211.03(1) Where
a responsible issuer or a person or company with actual, implied or apparent
authority to act on behalf of a responsible issuer releases a document that
contains a misrepresentation, a person or company who acquires or disposes of
the issuer’s security during the period between the time when the document was
released and the time when the misrepresentation contained in the document was
publicly corrected has, without regard to whether the person or company relied
on the misrepresentation, a right of action for damages against
(a) the
responsible issuer,
(b) each
director of the responsible issuer at the time the document was released,
(c) each
officer of the responsible issuer who authorized, permitted or acquiesced in
the release of the document,
(d) each
influential person, and each director and officer of an influential person, who
knowingly influenced
(i) the responsible issuer or any person or company acting on behalf
of the responsible issuer to release the document, or
(ii) a director or officer of the responsible issuer to authorize,
permit or acquiesce in the release of the document,
and
(e) each
expert where
(i) the misrepresentation is also contained in a report, statement or
opinion made by the expert,
(ii) the document includes, summarizes or quotes from the report,
statement or opinion of the expert, and
(iii) if the document was released by a person or company other than
the expert, the expert consented in writing to the use of the report, statement
or opinion in the document.
(2) Where
a person with actual, implied or apparent authority to speak on behalf of a
responsible issuer makes a public oral statement that relates to the business
or affairs of the responsible issuer and that contains a misrepresentation, a
person or company who acquires or disposes of the issuer’s security during the
period between the time when the public oral statement was made and the time
when the misrepresentation contained in the public oral statement was publicly
corrected has, without regard to whether the person or company relied on the
misrepresentation, a right of action for damages against
(a) the
responsible issuer,
(b) the
person who made the public oral statement,
(c) each
director and officer of the responsible issuer who authorized, permitted or
acquiesced in the making of the public oral statement,
(d) each
influential person, and each director and officer of the influential person,
who knowingly influenced
(i) the person who made the public oral statement to make the public
oral statement, or
(ii) a director or officer of the responsible issuer to authorize,
permit or acquiesce in the making of the public oral statement,
and
(e) each
expert where
(i) the misrepresentation is also contained in a report, statement or
opinion made by the expert,
(ii) the person making the public oral statement includes, summarizes
or quotes from the report, statement or opinion of the expert, and
(iii) if the public oral statement was made by a person other than the
expert, the expert consented in writing to the use of the report, statement or
opinion in the public oral statement.
(3) Where
an influential person or a person or company with actual, implied or apparent
authority to act or speak on behalf of the influential person releases a document
or makes a public oral statement that relates to a responsible issuer and that
contains a misrepresentation, a person or company who acquires or disposes of
the issuer’s security during the period between the time when the document was
released or the public oral statement was made and the time when the
misrepresentation contained in the document or public oral statement was
publicly corrected has, without regard to whether the person or company relied
on the misrepresentation, a right of action for damages against
(a) the
responsible issuer, if a director or officer of the responsible issuer, or
where the responsible issuer is an investment fund, the investment fund
manager, authorized, permitted or acquiesced in the release of the document or
the making of the public oral statement,
(b) the
person who made the public oral statement,
(c) each
director and officer of the responsible issuer who authorized, permitted or
acquiesced in the release of the document or the making of the public oral
statement,
(d) the
influential person,
(e) each
director and officer of the influential person who authorized, permitted or
acquiesced in the release of the document or the making of the public oral
statement, and
(f) each
expert where
(i) the misrepresentation is also contained in a report, statement or
opinion made by the expert,
(ii) the document or public oral statement includes, summarizes or
quotes from the report, statement or opinion of the expert, and
(iii) if the document was released or the public oral statement was
made by a person other than the expert, the expert consented in writing to the
use of the report, statement or opinion in the document or public oral
statement.
(4) Where
a responsible issuer fails to make a timely disclosure, a person or company who
acquires or disposes of the issuer’s security between the time when the
material change was required to be disclosed in the manner required under this
Act and the subsequent disclosure of the material change has, without regard to
whether the person or company relied on the responsible issuer having complied
with its disclosure requirements, a right of action for damages against
(a) the
responsible issuer,
(b) each
director and officer of the responsible issuer who authorized, permitted or acquiesced
in the failure to make timely disclosure, and
(c) each
influential person, and each director and officer of an influential person, who
knowingly influenced
(i) the responsible issuer or any person or company acting on behalf
of the responsible issuer in the failure to make timely disclosure, or
(ii) a director or officer of the responsible issuer to authorize,
permit or acquiesce in the failure to make timely disclosure.
(5) In
an action under this section, a person who is a director or officer of an
influential person is not liable in that capacity if the person is liable as a
director or officer of the responsible issuer.
(6) In an action under this section,
(a) multiple
misrepresentations having common subject‑matter or content may, in the
discretion of the court, be treated as a single misrepresentation, and
(b) multiple
instances of failure to make timely disclosure of a material change or material
changes concerning common subject‑matter may, in the discretion of the
court, be treated as a single failure to make timely disclosure.
(7) In an action under subsection (2) or (3), if
the person who made the public oral statement had apparent authority, but not
implied or actual authority, to speak on behalf of the issuer, no other person
is liable with respect to any of the responsible issuer’s securities that were
acquired or disposed of before that other person became, or should reasonably
have become, aware of the misrepresentation.
2006 c30 s52
Burden
of Proof and Defences
Non-core documents and
public oral statements
211.04(1) In
an action under section 211.03 in relation to a misrepresentation in a document
that is not a core document or a misrepresentation in a public oral statement,
a person or company is not liable, subject to subsection (2), unless the
plaintiff proves that the person or company
(a) knew,
at the time that the document was released or the public oral statement was
made, that the document or public oral statement contained the
misrepresentation,
(b) at
or before the time that the document was released or the public oral statement
was made, deliberately avoided acquiring knowledge that the document or public
oral statement contained the misrepresentation, or
(c) was,
through action or failure to act, guilty of gross misconduct in connection with
the release of the document or the making of the public oral statement that
contained the misrepresentation.
(2) A
plaintiff is not required to prove any of the matters set out in subsection (1)
in an action under section 211.03 in relation to an expert.
(3) In
an action under section 211.03 in relation to a failure to make timely
disclosure, a person or company is not liable, subject to subsection (4),
unless the plaintiff proves that the person or company
(a) knew,
at the time that the failure to make timely disclosure first occurred, of the
change and that the change was a material change,
(b) at
the time or before the failure to make timely disclosure first occurred,
deliberately avoided acquiring knowledge of the change or that the change was a
material change, or
(c) was,
through action or failure to act, guilty of gross misconduct in connection with
the failure to make timely disclosure.
(4) A
plaintiff is not required to prove any of the matters set out in subsection (3)
in an action under section 211.03 in relation to
(a) a
responsible issuer,
(b) an
officer of a responsible issuer,
(c) an
investment fund manager, or
(d) an
officer of an investment fund manager.
(5) A
person or company is not liable in an action under section 211.03 in relation
to a misrepresentation or a failure to make timely disclosure if that person or
company proves that the plaintiff acquired or disposed of the issuer’s security
(a) with
knowledge that the document or public oral statement contained a
misrepresentation, or
(b) with
knowledge of the material change.
(6) A
person or company is not liable in an action under section 211.03 in relation
to
(a) a
misrepresentation if that person or company proves that,
(i) before the release of the document or the making of the public
oral statement containing the misrepresentation, the person or company
conducted or caused to be conducted a reasonable investigation, and
(ii) at the time of the release of the document or the making of the
public oral statement, the person or company had no reasonable grounds to
believe that the document or public oral statement contained the
misrepresentation,
or
(b) a
failure to make timely disclosure if that person or company proves that
(i) before the failure to make timely disclosure first occurred, the
person or company conducted or caused to be conducted a reasonable
investigation, and
(ii) the person or company had no reasonable grounds to believe that
the failure to make timely disclosure would occur.
(7) In
determining whether an investigation was reasonable under subsection (6), or
whether any person or company is guilty of gross misconduct under subsection
(1) or (3), the court shall consider all relevant circumstances, including
(a) the
nature of the responsible issuer,
(b) the
knowledge, experience and function of the person or company,
(c) the
office held, if the person was an officer,
(d) the
presence or absence of another relationship with the responsible issuer, if the
person was a director,
(e) the
existence, if any, and the nature of any system designed to ensure that the
responsible issuer meets its continuous disclosure obligations,
(f) the
reasonableness of reliance by the person or company on the responsible issuer’s
disclosure compliance system and on the responsible issuer’s officers,
employees and others whose duties would in the ordinary course have given them
knowledge of the relevant facts,
(g) the
period within which disclosure was required to be made under the applicable
law,
(h) in
respect of a report, statement or opinion of an expert, any professional
standards applicable to the expert,
(i) the
extent to which the person or company knew, or should reasonably have known,
the content and medium of dissemination of the document or public oral
statement,
(j) in
the case of a misrepresentation, the role and responsibility of the person or
company in the preparation and release of the document or the making of the
public oral statement containing the misrepresentation or the ascertaining of
the facts contained in that document or public oral statement, and
(k) in
the case of a failure to make timely disclosure, the role and responsibility of
the person or company involved in a decision not to disclose the material
change.
(8) A
person or company is not liable in an action under section 211.03 in respect of a failure to make timely
disclosure if
(a) the
person or company proves that the material change was disclosed by the
responsible issuer in a report filed on a confidential basis with the
Commission under section 146,
(b) the
responsible issuer had a reasonable basis for making the disclosure on a
confidential basis,
(c) where
the information contained in the report filed on a confidential basis remains
material, disclosure of the material change was made public promptly when the
basis for confidentiality ceased to exist,
(d) the
person or company or responsible issuer did not release a document or make a
public oral statement that, due to the undisclosed material change, contained a
misrepresentation, and
(e) where
the material change became publicly known in a manner other than the manner
required under this Act, the responsible issuer promptly disclosed the material
change in the manner required under this Act.
(9) A
person or company is not liable in an action under section 211.03 for a
misrepresentation in forward‑looking information if the person or company
proves all of the following:
(a) the
document or public oral statement containing the forward‑looking information
contained, proximate to that information,
(i) reasonable cautionary language identifying the forward‑looking
information as such, and identifying material factors that could cause actual
results to differ materially from a conclusion, forecast or projection in the
forward‑looking information, and
(ii) a statement of the material factors or assumptions that were
applied in drawing a conclusion or making a forecast or projection set out in
the forward‑looking information;
(b) the
person or company had a reasonable basis for drawing the conclusions or making
the forecasts and projections set out in the forward‑looking information.
(10) A
person or company is deemed to have satisfied the requirements of subsection
(9)(a) with respect to a public oral statement containing forward‑looking
information if the person who made the public oral statement
(a) made
a cautionary statement that the oral statement contains forward‑looking
information,
(b) stated
that
(i) the actual results could differ materially from a conclusion,
forecast or projection in the forward‑looking information, and
(ii) certain material factors or assumptions were applied in drawing a
conclusion or making a forecast or projection as reflected in the forward‑looking
information,
and
(c) stated
that additional information about
(i) the material factors that could cause actual results to differ
materially from the conclusion, forecast or projection in the forward‑looking
information, and
(ii) the material factors or assumptions that were applied in drawing
a conclusion or making a forecast or projection as reflected in the forward‑looking
information,
is contained in a readily
available document or in a portion of such a document and has identified that
document or that portion of the document.
(11) For
the purposes of subsection (10)(c), a document filed with the Commission or
otherwise generally disclosed is deemed to be readily available.
(12) Subsection
(9) does not relieve a person or company of liability respecting forward‑looking
information in a financial statement required to be filed under this Act or
forward‑looking information in a document released in connection with an
initial public offering.
(13) A
person or company, other than an expert, is not liable in an action under
section 211.03 with respect to any part of a document or public oral statement
that includes, summarizes or quotes from a report, statement or opinion made by
the expert in respect of which the responsible issuer obtained the written
consent of the expert to the use of the report, statement or opinion if the
consent had not been withdrawn in writing before the document was released or
the public oral statement was made, if the person or company proves that
(a) the
person or company did not know and had no reasonable grounds to believe that
there had been a misrepresentation in the part of the document or public oral
statement made on the authority of the expert, and
(b) the
part of the document or oral public statement fairly represented the report,
statement or opinion made by the expert.
(14) An
expert is not liable in an action under section 211.03 with respect to any part
of a document or public oral statement that includes, summarizes or quotes from
a report, statement or opinion made by the expert if the expert proves that the
written consent previously provided was withdrawn in writing before the
document was released or the public oral statement was made.
(15) A
person or company is not liable in an action under section 211.03 in respect of
a misrepresentation in a document, other than a document required to be filed
with the Commission, if the person or company proves that, at the time of
release of the document, the person or company did not know and had no
reasonable grounds to believe that the document would be released.
(16) A
person or company is not liable in an action under section 211.03 for a
misrepresentation in a document or a public oral statement if the person or
company proves that
(a) the
misrepresentation was also contained in a document filed by or on behalf of
another person or company, other than the responsible issuer, with the
Commission or any other securities regulatory authority in Canada or an
exchange and was not corrected in another document filed by or on behalf of
that other person or company with the Commission or that other securities
regulatory authority in Canada or exchange before the release of the document
or the public oral statement made by or on behalf of the responsible issuer,
(b) the
document or public oral statement contained a reference identifying the
document that was the source of the misrepresentation, and
(c) when
the document was released or the public oral statement was made, the person or
company did not know and had no reasonable grounds to believe that the document
or public oral statement contained a misrepresentation.
(17) A
person or company, other than the responsible issuer, is not liable in an
action under section 211.03 if the misrepresentation or failure to make timely
disclosure was made without the knowledge or consent of the person or company
and if, after the person or company became aware of the misrepresentation
before it was corrected, or the failure to make timely disclosure before it was
disclosed in the manner required under this Act,
(a) the
person or company promptly notified the directors of the responsible issuer or
other persons acting in a similar capacity of the misrepresentation or the
failure to make timely disclosure, and
(b) if
no correction of the misrepresentation or no subsequent disclosure of the
material change in the manner required under this Act was made by the
responsible issuer within 2 business days after the notification under clause
(a), the person or company, unless
prohibited by law or by professional confidentiality rules, promptly and in
writing notified the Commission of the misrepresentation or failure to make
timely disclosure.
2006 c30 s52
Damages
Assessment of damages
211.05(1) Damages
shall be assessed in favour of a person or company that acquired an issuer’s
securities after the release of a document or the making of a public oral
statement containing a misrepresentation or after a failure to make timely
disclosure as follows:
(a) in
respect of any of the securities of the responsible issuer that the person or
company subsequently disposed of on or before the 10th trading day after the
public correction of the misrepresentation or the disclosure of the material
change in the manner required under this Act, assessed damages shall equal the
difference between the average price paid for those securities, including any
commissions paid in respect of them, and the price received on the disposition
of those securities, without deducting any commissions paid in respect of the
disposition, calculated taking into account the result of hedging or other risk
limitation transactions;
(b) in
respect of any of the securities of the responsible issuer that the person or
company subsequently disposed of after the 10th trading day after the public
correction of the misrepresentation or the disclosure of the material change in
the manner required under this Act, assessed damages shall equal the lesser of
(i) an amount equal to the difference between the average price paid
for those securities, including any commissions paid in respect of them, and
the price received on the disposition of those securities, without deducting
any commissions paid in respect of the disposition, calculated taking into
account the result of hedging or other risk limitation transactions, and
(ii) an amount equal to the number of securities that the person
disposed of, multiplied by the difference between the average price per
security paid for those securities, including any commissions paid in respect
of that disposition determined on a per security basis, and
(A) if the issuer’s securities trade on a
published market, the trading price of the issuer’s securities on the principal
market (as those terms are defined in the regulations) for the 10 trading days
following the public correction of the misrepresentation or the disclosure of
the material change in the manner required under this Act, or
(B) if there is no published market, the amount
that the court considers just;
(c) in
respect of any of the securities of the responsible issuer that the person or
company has not disposed of, assessed damages shall equal the number of
securities acquired, multiplied by the difference between the average price per
security paid for those securities, including any commissions paid in respect
thereof determined on a per security basis, and
(i) if the issuer’s securities trade on a published market, the
trading price of the issuer’s securities on the principal market as defined in
the regulations for the 10 trading days following the public correction of the
misrepresentation or the disclosure of the material change in the manner
required under this Act, or
(ii) if there is no published market, the amount that the court
considers just.
(2) Damages
shall be assessed in favour of a person or company that disposed of securities
after a document was released or a public oral statement made containing a
misrepresentation or after a failure to make timely disclosure as follows:
(a) in
respect of any of the securities of the responsible issuer that the person or
company subsequently acquired on or before the 10th trading day after the
public correction of the misrepresentation or the disclosure of the material
change in the manner required under this Act, assessed damages shall equal the
difference between the average price received on the disposition of those
securities, deducting any commissions paid in respect of the disposition and
the price paid for those securities, without including any commissions paid in
respect of them, calculated taking into account the result of hedging or other
risk limitation transactions;
(b) in
respect of any of the securities of the responsible issuer that the person or
company subsequently acquired after the 10th trading day after the public
correction of the misrepresentation or the disclosure of the material change in
the manner required under this Act, assessed damages shall equal the lesser of
(i) an amount equal to the difference between the average price
received on the disposition of those securities, deducting any commissions paid
in respect of the disposition and the price paid for those securities, without
including any commissions paid in respect of them, calculated taking into
account the result of hedging or other risk limitation transactions, and
(ii) an amount equal to the number of securities that the person
disposed of, multiplied by the difference between the average price per
security received on the disposition of those securities, deducting any
commissions paid in respect of the disposition determined on a per security
basis, and
(A) if the issuer’s securities trade on a
published market, the trading price of the issuer’s securities on the principal
market as defined in the regulations for the 10 trading days following the
public correction of the misrepresentation or the disclosure of the material
change in the manner required under this Act, or
(B) if there is no published market, the amount
that the court considers just;
(c) in
respect of any of the securities of the responsible issuer that the person or
company has not acquired, assessed damages shall equal the number of securities
that the person or company disposed of, multiplied by the difference between
the average price per security received on the disposition of those securities,
deducting any commissions paid in respect of the disposition determined on a
per security basis, and
(i) if the issuer’s securities trade on a published market, the
trading price of the issuer’s securities on the principal market as defined in
the regulations for the 10 trading days following the public correction of the
misrepresentation or the disclosure of the material change in the manner
required under this Act, or
(ii) if there is no published market, the amount that the court
considers just.
(3) Notwithstanding subsections (1) and (2),
assessed damages shall not include any amount that the defendant proves is
attributable to a change in the market price of securities that is unrelated to
the misrepresentation or the failure to make timely disclosure.
2006 c30 s52
Proportionate liability
211.06(1) In
an action under section 211.03, the court shall determine, in respect of each
defendant found liable in the action, the defendant’s responsibility for the
damages assessed in favour of all plaintiffs in the action, and each such
defendant is liable, subject to the limits set out in section 211.07(1), to the
plaintiffs for only that portion of the aggregate amount of damages assessed in
favour of the plaintiffs that corresponds to that defendant’s responsibility
for the damages.
(2) Notwithstanding
subsection (1), where, in an action under section 211.03 in respect of a
misrepresentation or a failure to make timely disclosure, a court determines
that a particular defendant, other than the responsible issuer, authorized,
permitted or acquiesced in the making of the misrepresentation or the failure
to make timely disclosure while knowing it to be a misrepresentation or a
failure to make timely disclosure, the whole amount of the damages assessed in
the action may be recovered from that defendant.
(3) Each
defendant in respect of whom the court has made a determination under
subsection (2) is jointly and severally liable with each other defendant in
respect of whom the court has made a determination under subsection (2).
(4) Any defendant against whom recovery is obtained
under subsection (2) is entitled to claim contribution from any other defendant
who is found liable in the action.
2006 c30 s52
Limits on damages
211.07(1) Notwithstanding
section 211.05, the damages payable by a person or company in an action under
section 211.03 is the lesser of
(a) the
aggregate damages assessed against the person or company in the action, and
(b) the
liability limit for the person or company less the aggregate of all damages
assessed after appeals, if any, against the person or company in all other
actions brought under section 211.03, and under comparable legislation in other
provinces or territories in Canada in respect of that misrepresentation or
failure to make timely disclosure, and less any amount paid in settlement of
any such actions.
(2) Subsection (1) does not apply to a person or
company, other than the responsible issuer, if the plaintiff proves that the
person or company authorized, permitted or acquiesced in the making of the
misrepresentation or the failure to make timely disclosure while knowing that
it was a misrepresentation or a failure to make timely disclosure, or
influenced the making of the misrepresentation or the failure to make timely
disclosure while knowing that it was a misrepresentation or a failure to make
timely disclosure.
2006 c30 s52
Procedural
Matters
Leave to proceed
211.08(1) No
action may be commenced under section 211.03 without leave of the court granted
on motion with notice to each defendant.
(2) The
court shall grant leave only where it is satisfied that
(a) the
action is being brought in good faith, and
(b) there
is a reasonable possibility that the action will be resolved at trial in favour
of the plaintiff.
(3) On
an application under this section, the plaintiff and each defendant shall serve
and file one or more affidavits setting forth the material facts on which each
intends to rely.
(4) The
maker of such an affidavit may be examined on it in accordance with the Alberta
Rules of Court.
(5) A copy of the application for leave to proceed
and any affidavits filed with the court shall be sent to the Commission when
filed.
2006 c30 s52
Notice
211.09 A person or company that has been granted
leave to commence an action under section 211.03 shall
(a) promptly
issue a news release disclosing that leave has been granted to commence an
action under section 211.03,
(b) send
a written notice to the Commission within 7 days of leave being granted,
together with a copy of the news release, and
(c) send
a copy of the statement of claim or other originating document to the
Commission when filed.
2006 c30 s52
Restriction on
discontinuation, etc. of action
211.091 An action under section 211.03 shall not
be discontinued, abandoned or settled without the approval of the court given
on such terms as the court thinks fit including, without limitation, terms as
to costs, and in determining whether to approve the settlement of the action,
the court shall consider, among other things, whether there are any other
actions outstanding under section 211.03 or under comparable legislation in
other provinces or territories in Canada in respect of the same
misrepresentation or failure to make timely disclosure.
2006 c30 s52
Costs
211.092 Notwithstanding the Court of Queen’s
Bench Act and the Class Proceedings Act, the prevailing party in an
action under section 211.03 is entitled to costs determined by a court in
accordance with the Alberta Rules of Court.
2006 c30 s52
Power of the Commission
211.093 The Commission may intervene in an action
under section 211.03 and in an application for leave under section 211.08.
2006 c30 s52
No derogation from other
rights
211.094 The right of action for damages and the
defences to an action under section 211.03 are in addition to and without
derogation from any other rights or defences the plaintiff or defendant may
have in an action brought otherwise than under this Part.
2006 c30 s52
Limitation period
211.095 No action shall be commenced under
section 211.03,
(a) in
the case of misrepresentation in a document, later than the earlier of
(i) 3 years after the date on which the document containing the
misrepresentation was first released, and
(ii) 6 months after the issuance of a news release disclosing that
leave has been granted to commence an action under section 211.03 or under
comparable legislation in the other provinces or territories in Canada in
respect of the same misrepresentation;
(b) in
the case of a misrepresentation in a public oral statement, later than the
earlier of
(i) 3 years after the date on which the public oral statement
containing the misrepresentation was made, and
(ii) 6 months after the issuance of a news release disclosing that
leave has been granted to commence an action under section 211.03 or under
comparable legislation in another province or territory of Canada in respect of
the same misrepresentation,
and
(c) in
the case of a failure to make timely disclosure, later than the earlier of
(i) 3 years after the date on which the requisite disclosure was
required to be made, and
(ii) 6 months after the issuance of a news release disclosing that
leave has been granted to commence an action under section 211.03 or under
comparable legislation in another province or territory of Canada in respect of
the same failure to make timely disclosure.
2006 c30 s52
Part 17.1
Interjurisdictional Co‑operation
Definitions
211.1(1) In
this Part,
(a) “Alberta
authority” means any power, function or duty of the Commission or of the Executive
Director that is, or is intended to be, performed or exercised by the
Commission or the Executive Director under the Alberta securities laws;
(b) “extra‑provincial
authority” means any power, function or duty of an extra‑provincial
securities commission that is, or is intended to be, performed or exercised by
that commission under the extra‑provincial securities laws under which
that commission operates;
(c) “extra‑provincial
securities commission” means a body empowered by the laws of a province or territory
other than Alberta to regulate trading in securities or exchange contracts or
to administer or enforce laws respecting trading in securities or exchange
contracts;
(d) “extra‑provincial
securities laws” means the laws of another province or territory of Canada
that, with respect to that province or territory, deals with the regulation of
securities markets and the trading in securities and exchange contracts in that
province or territory.
(e) repealed
2006 c30 s54.
(2) A reference to an extra‑provincial
securities commission includes, unless otherwise provided,
(a) its
delegate, and
(b) any
person or company who in respect of that extra-provincial securities commission
exercises a power or performs a duty or function that is substantially similar
to a power, duty or function exercised or performed by the Executive Director
under this Act.
2005 c18 s28;2006 c30
s54
Delegation and
acceptance of authority
211.2(1) Subject
to any regulations made under section 211.6, the Commission may by order, for
the purposes of this Part,
(a) delegate
any Alberta authority to an extra-provincial securities commission, and
(b) accept
a delegation or other transfer of any extra-provincial authority from an
extra-provincial securities commission.
(2) The
Commission shall not delegate any power, function or duty of the Commission or
of the Executive Director that is, or is intended to be, performed or exercised
by the Commission or the Executive Director under Part 1, this Part or section
224 or 224.1.
2005 c18 s28;2006 c30
s55
Subdelegation
211.3(1) Subject
to any restrictions or conditions imposed by an extra‑provincial
securities commission with respect to a delegation of extra‑provincial
authority to the Commission, the Commission may subdelegate that extra‑provincial
authority in the manner and to the extent that the Commission or the Executive
Director, as the case may be, may give an authorization under section 17, 22 or
66 or otherwise delegate any Alberta authority under the Alberta securities
laws.
(2) Subject
to any restrictions or conditions imposed by the Commission with respect to a
delegation of Alberta authority to an extra‑provincial securities
commission, nothing in this Part is to be construed as prohibiting the extra‑provincial
securities commission from subdelegating that Alberta authority in the manner
and to the extent that the extra‑provincial securities commission may
delegate its authority under the extra‑provincial securities laws under
which it operates.
2005 c18 s28
Adoption or incorporation
of extra‑provincial
securities laws
211.4(1) Subject
to any regulations made under section 211.6, the Commission may by order adopt
or incorporate by reference as Alberta securities laws all or any provisions of
any extra-provincial securities laws of a jurisdiction to be applied to
(a) a
person or company or class of persons or companies whose primary jurisdiction
is that extra-provincial jurisdiction, or
(b) trades
or other activities involving a person or company or a class of persons or
companies referred to in clause (a).
(2) If
the Commission adopts or incorporates by reference an extra-provincial
securities law under subsection (1), it may adopt or incorporate it by
reference as amended from time to time, whether before or after the adoption or
incorporation by reference, and with the necessary changes.
2005 c18 s28;2006 c30
s56
Exemptions
211.41 Subject to any regulations made under
section 211.6, the Commission may by order exempt a person, company, security,
exchange contract or trade or a class of persons, companies, securities,
exchange contracts or trades from all or any requirements of Alberta securities
laws if the person, company, security, exchange contract or trade or class of
persons, companies, securities, exchange contracts or trades, as the case may
be, satisfies the conditions set out in the order.
2005 c18 s28;2006 c30
s57
211.42 Repealed 2006 c30 s57.
Exercise
of discretion, interprovincial reliance
211.5(1) Subject
to any regulations made under section 211.6, if the Commission or Executive
Director is empowered to make a decision regarding a person, company, trade,
security or exchange contract, the Commission or the Executive Director may
make a decision on the basis that the Commission or the Executive Director, as
the case may be, considers that an extra-provincial securities commission has
made a substantially similar decision regarding the person, company, trade,
security or exchange contract.
(2) Subject
to any regulations made under section 211.6, notwithstanding any provision of
this Act, the Commission or Executive Director may make a decision referred to
in subsection (1) without giving the person affected by the decision an
opportunity to be heard.
2005 c18 s28;2006 c30
s58
Regulations
211.6(1) The
Lieutenant Governor in Council may make regulations respecting
(a) the
delegation of any Alberta authority to an extra‑provincial securities
commission;
(b) the
acceptance by the Commission of any delegation or other authority of an
extra-provincial authority from an extra-provincial securities commission;
(c) any
amendments to, or the revocation of, any delegation or acceptance of a
delegation referred to in clause (a) or (b);
(d) the
adoption or incorporation by reference of extra-provincial securities laws
under section 211.4, including the administration of those laws once adopted or
incorporated by reference;
(e) the
administration of exemptions from Alberta securities laws under section 211.41;
(f) repealed
2006 c30 s59;
(g) the
administration of extra‑provincial securities laws arising from or as a
result of any matters described in clauses (a) to (f).
(2) The Commission may, subject to this
section and the regulations referred to in section 223(ii), make rules in
respect of any of the matters in respect of which the Lieutenant Governor in
Council may make regulations under subsection (1).
(3) Rules made by the Commission under
subsection (2) must be approved by the Minister.
(4) Notwithstanding that the Commission
may make rules,
(a) where
the provisions of a regulation made under subsection (1) and a rule made under
subsection (2) conflict, the regulation prevails, and
(b) the
Lieutenant Governor in Council may amend or repeal any rules made by the
Commission under subsection (2).
(5) A rule made by the Commission under
subsection (2) has the same force and effect as a regulation made by the
Lieutenant Governor in Council under subsection (1).
(6) The Regulations Act does not
apply to a rule made by the Commission under subsection (2).
2005 c18 s28;2006 c30
s59
Immunity re Alberta
authority
211.7(1) In
this section,
(a) “Commission”
includes the Executive Director and any member, officer, employee, appointee or
agent of the Commission;
(b) “securities
regulatory authority” means
(i) an extra‑provincial securities
commission referred to in subsection (2) and includes any member, officer,
employee, appointee or agent of that commission;
(ii) any person referred to in subsection (2)(b);
(iii) any exchange, quotation and trade reporting
system or self‑regulatory organization referred to in subsection (2)(c).
(2) This section applies only with
respect to an Alberta authority
(a) that
has been delegated by the Commission to an extra‑provincial securities
commission,
(b) that
is being, or is intended to be, exercised by a person where that Alberta
authority has been subdelegated to that person by an extra‑provincial
securities commission, including a subdelegate of that person but not including
an exchange, a quotation and trade reporting system or a self‑regulatory
organization recognized or authorized by that extra‑provincial securities
commission, or
(c) that
is being, or is intended to be, exercised by an exchange, a quotation and trade
reporting system or a self‑regulatory organization recognized or
authorized by an extra‑provincial securities commission to carry on
business where that Alberta authority has been subdelegated to it by the extra‑provincial
securities commission.
(3) No action or other proceeding for
damages may be instituted against the Commission or a securities regulatory
authority
(a) for
any act done in good faith in the performance or exercise, or the intended
performance or exercise,
(i) of any Alberta authority, or
(ii) of a delegation, or the acceptance of a delegation, of any
Alberta authority,
or
(b) for
any neglect or default in the performance or exercise in good faith
(i) of any Alberta authority, or
(ii) of a delegation, or the acceptance of a delegation, of any
Alberta authority.
2005 c18 s28
Immunity re extra‑provincial
authority
211.8(1) In
this section,
(a) “Commission”
includes the Executive Director and any member, officer, employee, appointee or
agent of the Commission;
(b) “securities
regulatory authority” means
(i) any person referred to in subsection (2)(b);
(ii) any exchange, quotation and trade reporting system or self‑regulatory
organization referred to in subsection (2)(c).
(2) This section applies only with
respect to an extra‑provincial authority
(a) that
has been delegated by an extra‑provincial securities commission to the
Commission,
(b) that
is being, or is intended to be, exercised by a person where that extra‑provincial
authority has been subdelegated to that person by the Commission, including a
subdelegate of that person but not including a recognized exchange, a
recognized quotation and trade reporting system or a recognized self‑regulatory
organization, or
(c) that
is being, or is intended to be, exercised by a recognized exchange, a
recognized quotation and trade reporting system or a recognized self‑regulatory
organization where that extra‑provincial authority has been subdelegated
to it by the Commission.
(3) No action or other proceeding for
damages may be instituted against the Commission or a securities regulatory
authority
(a) for
any act done in good faith in the performance or exercise, or the intended
performance or exercise,
(i) of any extra‑provincial authority, or
(ii) of a delegation, or the acceptance of a delegation, of any extra‑provincial
authority,
or
(b) for
any neglect or default in the performance or exercise in good faith
(i) of any extra‑provincial authority, or
(ii) of a delegation, or acceptance of a delegation, of any extra‑provincial
authority.
2005 c18 s28
Appeal re extra‑provincial
decision
211.9(1) In
this section, “extra‑provincial decision” means a decision of an extra‑provincial
securities commission made under an Alberta authority delegated to that extra‑provincial
securities commission by the Commission.
(2) A
person or company that is directly affected by an extra‑provincial
decision may appeal that extra‑provincial decision to the Court of
Appeal.
(3) An appeal under this section shall
be commenced by a notice of appeal filed with the Court of Appeal within 30
days from the day that the extra‑provincial securities commission serves
the notice of its decision on the person or company appealing the decision.
(4) The practice and procedure in the
Court of Appeal in respect of an appeal under this section shall, with any
necessary modification that the Court of Appeal considers appropriate, be the
same as on an appeal from a judgment of the Court of Queen’s Bench in an
action.
(5) The Court of Appeal may, with
respect to an appeal under this section,
(a) make
any order or direction that it considers appropriate with respect to the
commencement or conduct of or any matter relating to the appeal;
(b) confirm,
vary or reject the extra‑provincial decision;
(c) make
any decision that the extra‑provincial securities commission could have
made and substitute the Court’s decision for that of the extra‑provincial
securities commission.
(6) The extra‑provincial
securities commission is the respondent to an appeal under this section.
(7) A copy of the notice of appeal and
supporting documents shall within the 30‑day period referred to in
subsection (3) be served on
(a) the
respondent, and
(b) the
Secretary to the Commission.
(8) Notwithstanding that the Commission
is not a respondent to an appeal under this section, the Commission is entitled
to be represented at the appeal and to make representations in respect of any
matter before the Court that is related to the appeal.
(9) Notwithstanding that an appeal is
commenced under this section, the extra‑provincial decision being
appealed takes effect immediately unless the extra‑provincial securities
commission, the Commission or the Court of Appeal grants a stay pending
disposition of the appeal.
(10) In this section, a reference to an
extra‑provincial securities commission is a reference to the extra‑provincial
securities commission that made the extra‑provincial decision that is
being appealed under this section.
2005 c18 s28
Appeal re decision of
the Commission
211.91(1) In
this section, “delegated authority” means any extra‑provincial authority
that is delegated to and accepted by the Commission under section 211.2.
(2) A person or company that is directly
affected by
(a) a
decision of the Commission made pursuant to a delegated authority, or
(b) a
decision of an extra‑provincial securities commission that is adopted by
the Commission under section 211.5,
may appeal that
decision to the Court of Appeal.
(3) Section 38(2) to (7) apply to an
appeal made under this section.
(4) A person or company that has a right
to appeal a decision under this section may, subject to any direction of the
Court of Appeal, exercise that right of appeal whether or not that person or
company may have a right to appeal that decision to a court in another
jurisdiction.
(5) Notwithstanding subsection (4), if a
decision referred to in subsection (2) is being appealed to a court in another
jurisdiction, the Court of Appeal may stay an appeal under this section pending
the determination of the appeal in the other jurisdiction.
2005 c18 s28
Part 18
General Provisions
212 Repealed 2003 c32 s33.
General
exemption
213 The Commission may by order exempt
(a) any
person, company, trade or distribution, or
(b) any
class or classes of persons, companies, trades or distributions
from all or any provision of the Alberta securities laws.
1981 cS‑6.1
s185;1988 c7 s1(41);1995 c28 s56;2000 c17 s30
Revoke or vary decisions
214(1) The Commission may, if the Commission considers
that it would not be prejudicial to the public interest to do so, make an order
revoking or varying any decisions made by the Commission under this Act or the
regulations or any former Securities Act
or regulations.
(2) With
respect to a decision made by the Chair under this Act or the regulations or
any former Securities Act or
regulations, the Chair may,
(a) if
the Chair has acted alone in making the decision, and
(b) if
the Chair considers that it would not be prejudicial to the public interest to
do so,
make an order revoking or varying that decision.
1981 cS‑6.1
s186;1982 c32 s33;1984 c64 s55;1988 c7 s1(41);
1995 c28 s56
Self-incrimination
215(1) A person examined under this Act under oath,
affirmation or by solemn declaration may be examined on all matters relevant to
the matter for which the person is being examined and shall not be excused from
answering any question on the ground that the answer might
(a) tend
to incriminate that person,
(b) subject
that person to punishment under this Act, or
(c) tend
to establish that person’s liability
(i) to a civil proceeding at the instance of the Crown or of any
other person, or
(ii) to prosecution under any Act or regulations under any Act.
(2) Where a person gives testimony pursuant to an
examination referred to in subsection (1), that testimony shall not be admitted
in evidence against that person in a prosecution of an offence under section
194 or any other prosecution of an offence under an enactment of Alberta.
(3) With respect to testimony given
pursuant to an examination referred to in subsection (1), subsection (2) is not
to be construed so as to prohibit or restrict the use of that testimony against
any person in a prosecution for perjury or the giving of contradictory
evidence.
RSA 2000 cS‑4
s215;2003 c32 s34
Requirement to disclose
personal information
216 The Commission or the Executive Director
may by order require that the directors, officers and control persons of an
issuer or a class of issuers or any one or more of those persons, within the
time the Commission or the Executive Director specifies, file a personal
information form prepared and executed in accordance with the regulations.
2000 c17 s31
Sending of documents
217(1) Unless otherwise provided by the Alberta
securities laws, any document required to be sent, communicated, delivered or
served under the Alberta securities laws may be
(a) personally
delivered to the person or company that is to receive it,
(b) sent
by prepaid post to the person or company that is to receive it, or
(c) sent
by electronic means that produces a printed copy to the person or company that
is to receive it.
(2) A
document sent to a person or company referred to in subsection (1)(b) or (c)
shall be sent to that person or company
(a) at
the latest address known for that person or company by the sender of the
document, or
(b) at
the address for service in Alberta filed by that person or company with the
Executive Director.
(3) A
document referred to in subsection (1) that is sent by the Commission or the
Executive Director by prepaid post is deemed, unless the contrary is proved, to
be served on the person to whom or the company to which it is sent on the 7th
day from the day that the document is sent to that person or company.
(4) If a document referred to in subsection (1) is
sent to a person or company by prepaid post and is returned on 2 successive occasions
because the person or company cannot be found, then there is no further
requirement to send any further documents to that person or company until the
person or company provides to the sender notification in writing of the
person’s or company’s new address.
RSA 2000 cS‑4
s217;2006 c30 s60
Admissibility of
certified statements
218 A statement
(a) as
to the registration or non‑registration of any person or company,
(b) as
to the filing or non‑filing of any document or material required or
permitted to be filed, or
(c) setting
out
(i) the substance of any decision of the Commission or of the
Executive Director, or
(ii) information from any books, records, documents or files of the
Commission in the form of an extract or description,
purporting to be certified by the Commission, a member of
the Commission, the Executive Director or the Secretary is, without proof of
the office or signature of the person certifying the statement, admissible in
evidence in any action, proceeding or prosecution.
1981 cS‑6.1
s189;1988 c7 s1(35);1995 c28 s57
Applications to a court
219(1) Unless otherwise provided for under this Act,
an application made under this Act to a court shall be made by originating
notice and may be heard not less than 3 days from the day that the notice of
the application and its supporting documents are served by the person bringing
the application on the other parties to the application.
(2) A notice of an application referred to in
subsection (1) and its supporting documents shall be served in a manner
prescribed by the Alberta Rules of Court
for an originating notice.
1981 cS‑6.1
s190;1982 c32 s34
Service on Commission
220 Service of any document on the Commission
may be effected by serving the document on the Secretary.
1981 cS‑6.1 s191;1988
c7 s1(36);1995 c28 s58
Filing and
confidentiality
221(1) Where the Alberta securities laws require that
material be filed
(a) with
the Commission, the filing shall be effected by depositing the material or
causing it to be deposited with the Secretary, or
(b) with
the Executive Director, the filing shall be effected by depositing the material
or causing it to be deposited with the Executive Director.
(2) Where
the Alberta securities laws
(a) require
that material be filed, and
(b) do
not specify as to where or with whom the material is to be filed,
the filing shall be
effected by depositing the material or causing it to be deposited with the
Executive Director unless the Commission by order directs otherwise.
(3) Subject
to subsections (4) and (5), all material filed under subsection (1) or (2)
shall be made available for public inspection at the Commission offices during
the normal business hours of the Commission.
(4) With
respect to material deposited
(a) with
the Secretary, the Commission may hold the material in confidence if the
Commission considers that it would not be prejudicial to the public interest to
do so, or
(b) with
the Executive Director, the Executive Director may hold the material in
confidence if the Executive Director considers that it would not be prejudicial
to the public interest to do so.
(5) The
Commission may,
(a) on
the application of an interested person or company or the Executive Director,
and
(b) on
giving the interested person or company and the Executive Director the
opportunity to have a hearing,
make an order
directing that any material or class of material deposited with the Secretary
or the Executive Director be held in confidence if the Commission considers
that it would not be prejudicial to the public interest to grant the order.
(6) Where
the Executive Director decides to hold material in confidence or not to hold
material in confidence, an interested person or company may appeal the decision
to the Commission.
(7) An order of the Commission made pursuant to
subsections (5) and (6) is final and there is no appeal from that order.
1981 cS‑6.1
s192;1984 c64 s57;1988 c7 s1(37);1989 c19 s16;
1995 c28 s58;2000 c17 s33
Immunities
222(1) No action or other proceeding for damages may
be instituted against the Commission, a member of the Commission, the Executive
Director, the Secretary, a person employed by the Commission or a person
appointed under this Act or the regulations to perform a function or duty of or
for the Commission, the Executive Director or the Secretary
(a) for any act done in good faith
(i) in the performance or intended performance
of any function or duty, or
(ii) in the exercise or intended exercise of any power,
or
(b) for
any neglect, omission or default in the performance or exercise in good faith
of any function, duty or power.
(2) No
person or company has any rights or remedies and no proceedings lie or shall be
brought against any person or company for any act or omission of the last‑mentioned
person or company done or omitted in compliance with the Alberta securities
laws.
(3) Subsection (1) of this section does not, by
reason of section 5(2) and (3) of the Proceedings
Against the Crown Act, relieve the Crown of liability in respect of a tort
committed by the Commission or any person referred to in subsection (1) of this
section to which the Crown would otherwise be subject and the Crown is liable
under that Act for the tort in a like manner as if subsection (1) of this
section had not been enacted.
1981 cS‑6.1
s193;1984 c64 s58;1988 c7 s1(38);1995 c28 s59;
2000 c17 s34
Lieutenant Governor in
Council regulations
223 The Lieutenant Governor in Council may
make regulations
(a) governing
trades and, without limiting the generality of the foregoing,
(i) respecting the listing and trading of securities;
(ii) respecting the trading in exchange contracts;
(iii) respecting advertising relating to trading in securities and
exchange contracts;
(iv) establishing the principles for determining the market value, the
market price or the closing price of a security and authorizing the Commission
to make that determination;
(v) prescribing which distributions and trading in relation to the
distributions are distributions and trading outside Alberta;
(b) requiring
any information, documents, records or other materials to be filed, furnished
or delivered;
(c) requiring
the inclusion or permitting the exclusion of any information, documents,
records or other materials that may be required to be filed, furnished or
delivered;
(d) prescribing
terms and conditions of an escrow or pooling agreement;
(e) prescribing
categories of issuers for the purposes of the prospectus requirements and
classifying issuers into categories;
(e.1) designating
issuers or a class of issuers as a reporting issuer;
(f) repealed
2006 c30 s61;
(g) governing
derivatives and, without limiting the generality of the foregoing, providing
exemptions and prescribing requirements in respect of derivatives;
(h) respecting
any matter necessary or advisable to facilitate distributions and compliance
with the Alberta securities laws by foreign issuers;
(i) prescribing
requirements in respect of reverse take‑overs and investment contracts;
(j) governing
registration and, without limiting the generality of the foregoing,
(i) prescribing requirements in respect of applications for
registration and the renewal, amendment, expiration or surrender of
registration;
(ii) prescribing the duration of registration;
(iii) respecting the suspension, cancellation and reinstatement of
registration;
(iii.1) respecting the voluntary surrender of registration;
(iv) prescribing categories or sub‑categories of registrants;
(v) classifying registrants into categories or sub‑categories;
(vi) prescribing the conditions of registration or other requirements
for registrants or any category or sub‑category of registrants, including
(A) standards of practice and business conduct
of registrants in dealing with their customers and clients and prospective
customers and clients;
(B) requirements governing ownership or control
of the registrants;
(C) requirements in respect of membership in a
self‑regulatory organization;
(vii) prescribing requirements in respect of the disclosure or
furnishing of information to the public or the Commission by registrants;
(viii) providing for exemptions from or varying the requirements under
this Act in respect of the disclosure or furnishing of information by
registrants to the public or the Commission;
(ix) prescribing requirements in respect of the books, records and
other documents required to be kept by registrants;
(x) respecting conflicts of interest;
(xi) respecting bonds and bonding;
(xii) respecting compensation funds or contingency trust funds;
(xiii) prescribing securities or exchange contracts or classes of
securities or exchange contracts in which a category or sub‑category of
registrant may trade;
(xiv) prescribing securities or exchange contracts or classes of
securities or exchange contracts in which a category or sub‑category of
registrant may not trade;
(xv) circumstances in which
(A) a person or company or a class of persons or
companies is not required to be registered under section 75, or
(B) a person or company or a class of persons or
companies is deemed to be registered for the purposes of this Act or the
regulations,
including the
circumstance in which a person or company or a class of persons or companies is
registered under the laws of another jurisdiction respecting trading in
securities or exchange contracts;
(j.1) prescribing
the conditions and circumstances under which a company may undertake the
duties, responsibilities and activities that a person who is a registrant and a
shareholder of the company is authorized to undertake by virtue of being a
registrant, including the establishment of a scheme for the registration of the
company and the category of that registration;
(j.2) imposing
liability on a registrant who is a dealer or adviser for the acts or omissions
prescribed under clause (j.6) of a company that is a registrant pursuant to a
scheme established pursuant to the authority in clause (j.1) where the dealer
or adviser has a prescribed contractual relationship with the company;
(j.3) imposing
liability on a person who is a registrant and a shareholder of a company for
acts or omissions of the company where the company that performs the acts or
fails to perform the acts is a registrant pursuant to a scheme established
pursuant to the authority in clause (j.1);
(j.4) prescribing
the terms and conditions under which a person who is in a contractual
relationship with a dealer is deemed to be an employee of the dealer for the
purpose of the Alberta securities laws and deemed to be qualified for
registration as a salesperson of the dealer;
(j.5) imposing
liability on a registrant who is a dealer for the acts and omissions prescribed
under clause (j.7) of a person deemed to be an employee of the dealer under a
regulation made pursuant to clause (j.4);
(j.6) prescribing
the acts or omissions of a company for which a registrant who is a dealer or
adviser is liable;
(j.7) prescribing
the acts or omissions of a person deemed to be an employee of a dealer for
which a registrant who is a dealer is liable;
(k) governing
annual information forms, annual reports, preliminary prospectuses,
prospectuses, pro forma prospectuses, short form prospectuses, pro forma short
form prospectuses, exchange offering prospectuses, simplified prospectuses,
risk disclosure statements, offering memoranda or any other disclosure
documents and, without limiting the generality of the foregoing, prescribing
procedures and requirements with respect to and providing for exemptions from
(i) the use, form and content of those documents;
(ii) the preparation, filing, delivery or dissemination of those documents;
(iii) the issuance of receipts for preliminary prospectuses and
prospectuses, including the issuance of receipts after an expedited or
selective review, and respecting when receipts are not required or will not be
issued, and the circumstances under which a receipt may be refused;
(iv) the incorporation of other documents by reference;
(v) the distribution of securities by means of a prospectus
incorporating other documents by reference;
(vi) the distribution of securities by means of a simplified or
summary prospectus or other means of disclosure document;
(vii) the distribution of securities on a continuous or delayed basis;
(viii) the pricing of a distribution of securities after the issuance of
a receipt for the prospectus filed in relation to the distribution;
(ix) the issuance of receipts for prospectuses after selective review;
(x) the incorporation by reference of certain documents in a
prospectus and the effect, including from a liability and evidentiary
perspective, of modifying or superseding statements;
(xi) the form of certificates relating to a preliminary prospectus,
prospectus and amendments to a prospectus and the persons required to sign the
certificates;
(xii) eligibility, and the loss of eligibility, to obtain a receipt for,
or to distribute, securities under a particular form of prospectus;
(xiii) the variance of rights to withdraw from or not be bound by an
agreement to purchase securities;
(xiv) the lapse date for a prospectus, restricting the period of time
to the lapse date, the terms and conditions for continuing to distribute
securities after the lapse date, and the circumstances under which the
purchaser may cancel a trade that occurs after the lapse date;
(xv) circumstances in which
(A) section 110 does not apply to a person or
company or a class of persons or companies, or
(B) a receipt is deemed to have been issued for
the purposes of this Act,
including the
circumstance in which a receipt has been issued for a preliminary prospectus or
prospectus under the laws of another jurisdiction respecting trading in
securities or exchange contracts;
(xvi) requirements in respect of amendments to a preliminary prospectus
or prospectus and prescribing circumstances under which an amendment to a
preliminary prospectus or prospectus must be filed;
(xvii) requirements for dealers for delivery of a preliminary prospectus
between the issuance of a receipt for a preliminary prospectus and the issuance
of a receipt for a prospectus, including any record‑keeping requirements;
(xviii) the requirements of Parts 7, 8 and 9 or the modification or
variation of requirements under Parts 7, 8 and 9;
(k.1) prescribing
circumstances in which a person or company that purchases a security under a
distribution may cancel the purchase, including
(i) prescribing the period in which a purchaser may cancel the
purchase;
(ii) prescribing the principles for determining the amount of the
refund if the purchaser cancels the purchase;
(iii) specifying the person responsible for making and administering
the payment of the refund and prescribing the period in which the refund must
be paid;
(iv) prescribing different circumstances, periods, principles or
persons or companies for different classes of securities, issuers or
purchasers;
(l) designating
an offering memorandum, or any class of offering memoranda, not to be an
offering memorandum;
(m) designating
a document or any class of documents that describes the business and affairs of
an issuer to be an offering memorandum;
(n) prescribing,
with respect to a trade or a type of trade that would not otherwise be a
distribution, the conditions under which that trade or type of trade is deemed
to be a distribution;
(o) providing
for and governing exemptions from the registration or prospectus requirements
and, without limiting the generality of the foregoing,
(i) prescribing trades, distributions, securities and exchange
contracts in respect of which registration is not required;
(ii) prescribing trades, distributions and securities in respect of which
the filing of a prospectus is not required;
(iii) respecting the modification or variation of those exemptions;
(iv) respecting the restriction or removal of those exemptions;
(v) designating a person or company or class or classes of persons or
companies as an accredited investor;
(p) governing
mutual funds, non‑redeemable investment funds and private investment
funds and the advertising, distribution and trading of the securities of the
funds and, without limiting the generality of the foregoing,
(i) designating issuers or a class or classes of issuers as mutual
funds;
(i.1) designating issuers or a class or classes of issuers as non‑redeemable
investment funds;
(i.2) designating funds or a class or classes of funds as private
investment funds;
(ii) respecting sales charges imposed by a distribution company or
contractual plan service company under a contractual plan on purchasers of
shares or units of a fund;
(iii) prescribing a penalty for the early redemption of shares or units
of a fund;
(iv) prescribing the form and contents of reports to be filed by the
management company or distributors of a fund;
(v) respecting
(A) the custodianship of assets of any fund;
(B) the minimum initial capital requirements for
any fund making a distribution and prohibiting or restricting the reimbursement
of costs associated with the organization of a fund;
(C) any matters affecting any fund that require
the approval of security holders of the fund, the Commission or the Executive
Director;
(D) the contents and use of sales literature,
sales communications and advertising relating to any fund or securities of any
fund;
(vi) permitting or restricting investment policy and practices in
connection with any fund;
(vii) prescribing requirements in respect of, or in relation to,
promoters, advisors or persons and companies that administer or participate in
the administration of the affairs of mutual funds or non‑redeemable
investment funds;
(viii) requiring investment funds to establish and maintain a body for
the purposes described in section 193.1, prescribing its powers and duties and
prescribing requirements relating to
(A) the mandate and functioning of the body,
(B) the composition of the body and
qualifications for membership on the body, including matters respecting the
independence of members and the process for selecting the members,
(C) the standard of care that applies to members
of the body when exercising their powers, performing their duties and carrying
out their responsibilities,
(D) the disclosure of information to security
holders of the investment fund, to the investment fund manager and to the
Commission, and
(E) matters affecting the investment fund that
require review by the body or approval of the body;
(q) regulating
scholarship plans and the distribution and trading of the securities of
scholarship plans;
(q.1) governing
the preparation and the filing of reports of trades;
(r) governing
disclosure obligations under Parts 12 and 13 and the regulations and, without
limiting the generality of the foregoing,
(i) requiring any person or company or class of persons or companies
to comply with Parts 12 and 13 and the regulations;
(ii) prescribing disclosure requirements, including the form, content,
preparation, review, audit, approval, certification, filing, delivery and use
of disclosure documents;
(r.1) respecting
any matter necessary or advisable to regulate auditors of reporting issuers;
(s) with
respect to disclosures to be made, or that are otherwise provided for, under
Parts 10, 12 and 13,
(i) prescribing procedures for the integration of disclosures
required in relation to those Parts, including modifying or varying the
application of the Alberta securities laws as may be necessary for the purpose
of permitting integrated disclosure;
(ii) prescribing disclosure requirements, including the form, content,
preparation, review, audit, approval, certification, filing, delivery and use
of disclosure documents;
(s.1) respecting
the preparation, form and content requirements applicable to the public
dissemination of forward-looking information by reporting issuers where the
dissemination is not part of a required filing;
(t) governing
insider trading, early warning and self-dealing and, without limiting the
generality of the foregoing,
(i) requiring any issuer, class of issuer or other person or company
to comply with any of the requirements of Part 15 or the regulations;
(ii) prescribing how a security or class of security or a related
financial instrument or class of related financial instruments must be reported
in an insider report filed under section 182;
(iii) prescribing disclosure, delivery, dissemination and filing
requirements, including the use of particular forms or particular types of
documents;
(iv) respecting self-dealing and conflicts of interest;
(v) prescribing exemptions from the requirements of Part 15 or the
regulations;
(vi) designating a person or company as an insider;
(u) regulating
take-over bids, take-overs and issuer bids and, without limiting the generality
of the foregoing,
(i) prescribing requirements for different classes of bids or
take-overs;
(ii) prescribing requirements relating to the conduct or management of
the affairs of the issuer that is the subject of a take-over bid, and its
directors and officers, during or in anticipation of the take-over bid;
(iii) prohibiting a person from purchasing or selling a security
before, during or after the effective period of a take-over bid;
(iv) prescribing the disclosure, certification, delivery or
dissemination of any circular, notice, report or other document required to be
filed or delivered to a person or company;
(v) prescribing percentages and requirements respecting early
warning;
(vi) prescribing exemptions from the requirements of Part 14 or the
regulations;
(v) governing
the format, preparation, form, contents, execution, certification,
dissemination and other use, filing, review and public inspection of all
information, documents, records or other materials required under or governed
by this Act and the regulations and, without limiting the generality of the
foregoing,
(i) respecting applications for registration and other purposes;
(ii) respecting preliminary prospectuses and prospectuses;
(iii) respecting interim financial statements and financial statements;
(iv) respecting proxies and information circulars;
(v) respecting take‑over bid circulars, issuer bid circulars,
directors’ circulars and offering memorandums;
(vi) establishing procedures and requirements in respect of the use of
any electronic or computer‑based system for the filing, delivery or
deposit of information, documents, records or materials;
(vii) varying or modifying the application of this Act to facilitate
the use of an electronic or computer‑based system for the filing,
delivery or deposit of information, documents, records or materials;
(viii) prescribing the circumstances in which persons or companies will
be deemed to have signed or certified information, documents, records or
materials on an electronic or computer‑based system for any purposes of
this Act;
(v.1) governing
the solicitation of proxies and, without limiting the generality of the
foregoing,
(i) prescribing requirements for the solicitation and voting of
proxies;
(ii) prescribing requirements relating to communication with
registered and beneficial owners of securities and relating to other persons or
companies, including depositories and registrants, that hold securities on
behalf of beneficial owners;
(w) governing
exchanges, self‑regulatory organizations, clearing agencies and quotation
and trade reporting systems and, without limiting the generality of the
foregoing,
(i) respecting the recognition of exchanges, self‑regulatory
organizations, clearing agencies and
quotation and trade reporting systems;
(ii) prescribing requirements in respect of the review or approval by
the Commission of any bylaw, rule, regulation, policy, procedure,
interpretation or practice of recognized exchanges, recognized self‑regulatory
organizations, recognized clearing agencies and recognized quotation and trade
reporting systems;
(iii) providing for the collection and remission by recognized
exchanges, recognized self‑regulatory organizations, recognized clearing
agencies and recognized quotation and trade reporting systems of fees payable
to the Commission;
(iv) prescribing requirements in respect of the books and records to
be maintained by recognized exchanges, recognized self‑regulatory
organizations, recognized clearing agencies and recognized quotation and trade
reporting systems;
(x) governing
the requirements, practice and procedure for investigations, hearings, reviews
and appeals and, without limiting the generality of the foregoing, providing
for
(i) costs in respect of matters heard before the Commission or the
Executive Director;
(ii) costs in respect of investigations;
(iii) costs in respect of services provided by persons appointed or
engaged and the appearance of witnesses;
(y) governing
undertakings and agreements between the Commission or the Executive Director
and any person or company;
(z) providing
for and governing the payment of money by a person or company pursuant to an
undertaking or agreement with the Commission or the Executive Director;
(aa) governing
the administration and disposition of money received pursuant to an undertaking
or an agreement;
(bb) determining
what constitutes a false or misleading appearance of trading activity in a
security or an exchange contract or an artificial price for a security or an
exchange contract;
(cc) respecting
any matter necessary or advisable to carry out effectively the intent and
purpose of sections 147 and 207 and, without limiting the generality of the
foregoing,
(i) providing for exemptions;
(ii) prescribing standards or criteria for determining when a material
fact or material change has been generally disclosed;
(dd) prescribing
the form of endorsement for the purposes of extra‑provincial warrants;
(dd.1) prescribing
circumstances in which a person or company or a class of persons or companies
is prohibited from trading or purchasing securities or exchange contracts, or a
particular security or exchange contract, including the circumstances in which
a body empowered by the laws of another jurisdiction to regulate trading in
securities or exchange contracts or to administer or enforce securities or
exchange contract laws in that jurisdiction, has ordered that
(i) a person is prohibited from trading or purchasing securities or
exchange contracts, or a particular security or exchange contract, or
(ii) trades or purchases of a particular security or exchange contract
cease;
(ee) providing
for and governing fees payable to the Commission and the provision of any
service or function performed in respect of those fees;
(ff) defining
for the purposes of this Act terms used in this Act that are not defined in
this Act;
(gg) where
this Act provides for a period of time to be prescribed, established or
otherwise provided for by regulation, prescribing, establishing or otherwise
providing for that period of time;
(hh) repealed
2006 c30 s61;
(hh.1) governing
minimum requirements respecting corporate governance including, without
limiting the generality of the foregoing,
(i) requiring directors and officers, or persons or companies performing
similar functions in relation to reporting issuers, to act honestly and in good
faith with a view to the best interests of the reporting issuer;
(ii) requiring directors and officers, or persons or companies
performing similar functions in relation to reporting issuers, to exercise the
skill and judgment that a reasonably prudent person would exercise in
comparable circumstances;
(iii) respecting the composition of the board of a reporting issuer and
any committees of the board and the qualifications and requirements concerning
directors, officers and committee members, and persons or companies performing
similar functions, including any matters respecting independence, required
courses and expertise;
(iv) requiring reporting issuers to appoint audit committees and other
committees of the board and prescribing minimum standards for those committees;
(v) requiring reporting issuers to devise and maintain a system of
internal controls and disclosure controls and respecting minimum standards for
and certification of those internal controls and disclosure controls;
(vi) requiring reporting issuers to adopt codes of business conduct
and ethics and corporate governance guidelines for directors, officers,
employees and persons or companies performing similar functions or that are in
a special relationship with the reporting issuer;
(vii) respecting procedures to regulate conflicts of interest between
the interests of a reporting issuer and those of a director or officer or a
person or company performing similar functions on behalf of a reporting issuer;
(viii) respecting the independence of auditors in relation to management
and controlling security holders;
(hh.2) requiring
evaluations of reporting issuers’ internal control over financial reporting and
requiring reporting issuers to obtain audits of their internal control over
financial reporting, including their management’s evaluation;
(hh.3) exempting
a class of persons, companies, trades or securities from one or more of the
provisions of Alberta securities laws;
(hh.4) prescribing
circumstances and conditions for the purposes of an exemption under clause
(hh.3), including
(i) conditions relating to the laws of another jurisdiction of Canada
or relating to an exemption from those laws granted by a body empowered by the
laws of that jurisdiction to regulate trading in securities or exchange
contracts or to administer or enforce laws respecting trading in securities or
exchange contracts in that jurisdiction, or
(ii) conditions that refer to a person or company or to a class of
persons or companies designated by the Commission;
(hh.5) prescribing
documents for the purpose of the definition of “core document” in section
211.01(b);
(hh.6) providing
for the application of Part 17.01 to the acquisition of an issuer’s security
pursuant to a distribution that is exempt from section 110 and to the
acquisition of an issuer’s security in connection with or pursuant to a take‑over
bid or issuer bid;
(hh.7) prescribing
transactions or classes of transactions for the purposes of section 211.02(d);
(ii) governing
the procedure to be followed by the Commission with respect to making or
repealing rules under section 211.6(2) or 224;
(jj) governing any other matter related to the
carrying out of this Act or the conduct of the business and affairs of the
Commission.
RSA 2000 cS‑4
s223;2003 c32 s35;2004 cI‑1.5 s5;
2005 c18 s29;2006 c30 s61;2007 c10 s23
Commission rules
224(1) The Commission may, subject to this section and
the regulations referred to in section 223(ii), make rules in respect of any of
the matters in respect of which the Lieutenant Governor in Council may make
regulations under section 223.
(2) Notwithstanding
subsection (1), the Commission shall not do the following:
(a) make
rules in respect of matters referred to in section 223(ee);
(b) make
rules in respect of matters referred to in section 223(hh.1) except with the
approval of the Minister;
(c) make
rules in respect of matters referred to in section 223(ii).
(3) Notwithstanding
that the Commission may make rules,
(a) where
the provisions of a regulation made under section 223 and a rule made under
this section conflict, the regulation prevails, and
(b) the
Lieutenant Governor in Council may amend or repeal any rule made by the
Commission under this section.
(4) A
rule made by the Commission under this section has the same force and effect as
a regulation made by the Lieutenant Governor in Council under section 223.
(5) The Regulations
Act does not apply to a rule made by the Commission under subsection (1).
RSA 2000 cS‑4
s224;2003 c32 s36
Changes to unpublished
rules
224.1(1) In
this section, “unpublished rule” means a rule made by the Commission under
section 211.6(2) or 224 but not yet published in The Alberta Gazette under
section 211.6(2) or 225.
(2) The Commission may make rules
setting out criteria or guidelines as to what constitutes non‑substantive
or non‑controversial changes to unpublished rules.
(3) The Chair may designate 2 or more
members of the Commission to sit as a panel of the Commission for the purposes
of considering and, subject to subsection (5), making changes to unpublished
rules.
(4) Subject to this section, section
23(2) to (7) apply to a panel established under subsection (3).
(5) A panel established under this section
may make non‑substantive and non‑controversial changes to
unpublished rules.
(6) Where a change is made to an
unpublished rule under this section, that rule as changed is deemed to have
been made by the Commission under section 211.6(2) or 224.
2003 c32 s37;2005 c18
s30
Publication of rules
225(1) Where a rule is made under section 211.6(2) or
224, the Commission shall publish the rule in The Alberta Gazette.
(2) A
rule that is not published in accordance with subsection (1) is not valid
against a person or company that has not had actual notice of the rule.
(3) On
publication of a rule in The Alberta Gazette,
(a) every
person or company is deemed to have notice of the rule, and
(b) the rule is deemed to be valid
notwithstanding any irregularity or any defect in the rule‑making
process.
RSA 2000 cS‑4
s225;2005 c18 s31
Evidence re rule
226 For the purposes of the Alberta Evidence Act, a rule made under
section 211.6(2) or 224 shall be treated in the same manner as if it were a
regulation.
RSA 2000 cS‑4
s226;2005 c18 s32
Application of
regulations and rules
227 A regulation or a rule may be of general
or specific application.
1995 c28 s61
Incorporation by
reference
228(1) A
regulation or rule may adopt or incorporate by reference, in whole or in part,
any regulatory instrument, code, bylaw, standard, procedure or guideline.
(2) If a regulation or rule adopts or
incorporates by reference, in whole or in part, a regulatory instrument, code,
bylaw, standard, procedure or guideline, it may adopt it or incorporate it by
reference as amended from time to time, whether before or after the adoption or
incorporation by reference, and with the necessary changes.
RSA 2000 cS‑4
s228;2007 c10 s24
Exemption from a
regulation or rule
229 A regulation or rule may authorize the
Commission or the Executive Director to grant an exemption to the regulation or
rule
(a) in
whole or in part, and
(b) subject to conditions or restrictions.
1995 c28 s61
230 Repealed 2007 c10 s25.
Transitional
provision
231 A trade or distribution made
(a) before
February 1, 1982, and
(b) pursuant
to an exemption under the former Securities
Act, RSA 1980 cS‑6,
shall remain exempted from the provisions of this Act in
the same manner as if the exemption were contained in this Act.
1981 cS‑6.1 s197
