1992 Legislative Session: 1st Session, 35th Parliament
FIRST READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
MINISTER OF FINANCE AND
CORPORATE RELATIONS
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 Section 6 (1) of the Securities Act, S.B.C. 1985, c. 83, is amended by striking out "or the regulations" and substituting ", the regulations or another enactment".
2 Section 7 (4) is repealed and the following substituted:
(4) The superintendent may, by conditional or unconditional written authority, delegate the superintendent's powers and duties under this Act, the regulations or another enactment to any person employed under subsection (1).
3 Section 9 (2) is amended by adding "or classes of records and things" after "records and things".
4 Section 31 (2) is amended
(a) by repealing paragraph (9) and substituting the following:
(9) a trade in a security of an issuer that is exchanged by or for the account of the issuer with the issuer's security holders, with one or more other issuers or with the security holders of the other issuers in connection with an amalgamation, merger, reorganization or arrangement where
(i) an information circular in the required form, proxy statement or similar disclosure record in respect of the amalgamation, merger, reorganization or arrangement is prepared and delivered to each of the security holders whose approval of the amalgamation, merger, reorganization or arrangement is required under applicable legislation before it can proceed, and
(ii) the amalgamation, merger, reorganization or arrangement is approved by the security holders referred to in subparagraph (i) in accordance with the requirements of the applicable legislation; ,
(b) in paragraph (11) by striking out "every member of a class of holders in the Province" and substituting "the holders of a class",
(c) in paragraph (11) (i) and (ii) by striking out "member" wherever it appears and substituting "holder", and
(d) in paragraph (28) by adding "or issuer bid" after "take over bid".
5 Section 32 is amended
(a) in paragraph (g) by striking out "and" at the end of subparagraph (ii), by repealing subparagraph (iii) and substituting the following:
(iii) if the trade is made by the issuer, an information statement in the required form is delivered to the purchaser before an agreement of purchase and sale is entered into, and
(iv) if the trade is made by the issuer, the information statement is filed not later than 10 days after the trade; , and
(b) in paragraph (n) by adding "or disclosure statement" after "as a prospectus".
6 Section 33 is repealed and the following substituted:
33 On application by an interested person or on the commission's or the superintendent's own motion, the commission or the superintendent may order that a trade, intended trade, security, exchange contract or person or class of trades, intended trades, securities, exchange contracts or persons is exempt from one or more of the requirements of Part 4 or the regulations related to Part 4 where the commission or the superintendent considers that to do so would not be prejudicial to the public interest.
7 Section 51 is repealed and the following substituted:
50.1 (1) Subject to subsection (3), no person shall distribute a security under a prospectus after the lapse date of the prospectus.
(2) The lapse date of a prospectus is the earlier of
(a) the prescribed date, or
(b) a date designated by the superintendent.
(3) A person may distribute a security under a prospectus after the lapse date of the prospectus on prescribed terms and conditions.
(4) A purchaser may, in prescribed circumstances, cancel a trade that was completed after the lapse date in reliance on subsection (3).
51 (1) A person who distributed securities under a prospectus filed under section 42 or this section may, on prescribed terms and conditions, continue to distribute securities under a new prospectus by filing the new prospectus with, and obtaining a receipt for the new prospectus from, the superintendent under this section.
(2) Notwithstanding section 42 (1), a person may file a new prospectus under subsection (1) without filing a preliminary prospectus with, and obtaining a receipt for the preliminary prospectus from, the superintendent.
(3) A short form of prospectus in the required form may, if permitted by the regulations, be filed under this section.
8 Section 55 (2) is amended
(a) by repealing paragraph (8) and substituting the following:
(8) the trade is in a security of an issuer that is exchanged by or for the account of the issuer with the issuer's security holders, with one or more other issuers or with the security holders of the other issuers in connection with an amalgamation, merger, reorganization or arrangement where
(i) an information circular in the required form, proxy statement or similar disclosure record in respect of the amalgamation, merger, reorganization or arrangement is prepared and delivered to each of the security holders whose approval of the amalgamation, merger, reorganization or arrangement is required under applicable legislation before it can proceed, and
(ii) the amalgamation, merger, reorganization or arrangement is approved by the security holders referred to in subparagraph (i) in accordance with the requirements of the applicable legislation, ,
(b) in paragraph (10) by striking out "every member of a class of holders in the Province" and substituting "the holders of a class",
(c) in paragraph (10) (i) and (ii) by striking out "member" wherever it appears and substituting "holder", and
(d) by repealing paragraph (27) and substituting the following:
(27) the trade is made in a security of an offeror under a take over bid or an issuer bid where a securities exchange take over bid circular or securities exchange issuer bid circular in respect of the security was filed by the offeror, .
9 Section 58 is repealed and the following substituted:
58 Section 42 does not apply to a distribution
(a) of a security described in section 32 (a) to (o), or
(b) consisting of options to sell or purchase securities known as "puts" and "calls" which permit the holder of the option to sell or purchase from the writer of the option a specified amount of securities at a specific price, on or before a specified date or the occurrence of a specified event, provided that
(i) the option has been written by or the performance under the option is guaranteed by a member of an exchange recognized by the commission for this purpose,
(ii) the securities that are the subject of the option are listed and posted for trading on an exchange recognized by the commission for this purpose, and
(iii) the option is in the required form.
10 Section 59 (1) is repealed and the following substituted:
(1) On application by an interested person or on the commission's or the superintendent's own motion, the commission or the superintendent may, where the commission or the superintendent considers that to do so would not be prejudicial to the public interest, order that
(a) a trade, intended trade, security or person or class of trades, intended trades, securities or persons is exempt from one or more of the requirements of Part 7 or the regulations related to Part 7, and
(b) a trade or intended trade or class of trades or intended trades is deemed to be a distribution.
11 Section 60 is amended
(a) by repealing subsection (3) and substituting the following:
(3) On application, the superintendent may issue a certificate that a reporting issuer is not in default of
(a) filing financial statements required by this Act or the regulations, or
(b) paying prescribed fees and charges. , and
(b) in subsections (4) (b) and (5) by striking out "any requirement of this Act or the regulations" and substituting "filing financial statements required by this Act or the regulations or paying prescribed fees and charges".
12 Section 66 (3) is amended by striking out "not later than 2 business days, after receipt" and substituting "not later than 2 business days after receipt".
13 Section 70 (4) (c) is amended by striking out "control or direction over securities of, the reporting issuer" and substituting "control or direction over, securities of the reporting issuer".
14 The following section is added to Part 10:
73.2 On application by an interested person or on the commission's or the superintendent's own motion, the commission or the superintendent may order that a person or class of persons is exempt from one or more of the requirements of this Part or the regulations related to this Part where
(a) the requirement in respect of which an exemption is to be granted conflicts with a similar requirement of the law of the jurisdiction in which the reporting issuer is incorporated, organized or continued, or
(b) the commission or the superintendent considers that to do so would not be prejudicial to the public interest.
15 Section 96 is amended
(a) in subsection (1) by striking out "on the application of an interested person" and substituting "on application by an interested person",
(b) in subsection (2) by striking out "Upon an application by any interested person" and substituting "On application by an interested person", and
(c) by repealing (2) (c) and substituting the following:
(c) order that a person or class of persons is exempt from one or more of the requirements of this Part or the regulations related to this Part where the commission considers that to do so would not be prejudicial to the public interest.
16 Section 103 is amended
(a) in subsection (1) by striking out "he is" and substituting "the reporting issuer carries on business or is", and
(b) by repealing subsection (2) and substituting the following:
(2) On application by an interested person or on the commission's own motion, the commission may order that a person or class of persons is exempt from one or more of the requirements of this Part or the regulations related to this Part where
(a) the requirement in respect of which an exemption is to be granted conflicts with a similar requirement of the law of the jurisdiction in which the reporting issuer is incorporated, organized or continued, or
(b) the commission considers that to do so would not be prejudicial to the public interest.
17 Section 112 is amended by adding "carries on business or" after "jurisdiction in which the reporting issuer".
18 Section 113 is repealed and the following substituted:
113 On application by an interested person or on the commission's own motion, the commission may order that a person or transaction or a class of persons or transactions is exempt from one or more of the requirements of this Part or the regulations related to this Part where
(a) the requirement in respect of which an exemption is to be granted conflicts with a similar requirement of the law of the jurisdiction in which the reporting issuer is incorporated, organized or continued, or
(b) the commission considers that to do so would not be prejudicial to the public interest.
19 Section 115 is amended
(a) by repealing subsection (1) and substituting the following:
(1) Where a take over bid circular, issuer bid circular, notice of change or notice of variation sent under Part 11 contains a misrepresentation, a person to whom the circular or notice was sent shall be deemed to have relied on the misrepresentation, and has a right of action for
(a) rescission against the offeror, or
(b) damages against
(i) each person who signed the certificate in the circular or notice,
(ii) every director of the offeror at the time the circular or notice was signed,
(iii) every person whose consent has been filed as prescribed, and
(iv) the offeror. ,
(b) by repealing subsection (3) and substituting the following:
(3) Where a directors' circular or a director's or officer's circular or a notice of change in respect of a directors' circular or a director's or officer's circular sent under Part 11 contains a misrepresentation, a person to whom the circular or notice was sent shall be deemed to have relied on the misrepresentation and has a right of action for damages against every director or officer who signed the circular or notice. ,
(c) in subsections (5), (6) and (7) by adding "or notice" after "circular" wherever it appears, and
(d) in subsection (12) by striking out "or issuer bid circular," and substituting ", issuer bid circular, notice of change or notice of variation,".
20 Section 118 is repealed and the following substituted:
118 A person who is
(a) a purchaser of a security to whom a prospectus was required under section 66 (1) to be sent but which prospectus was not sent, or
(b) a person to whom a take over bid circular, issuer bid circular, notice of change or notice of variation was required under Part 11 to be delivered but which circular or notice was not delivered,
has a right of action for damages or rescission against the dealer or offeror who failed to comply with the applicable Prequirement.
21 Section 127 (1) (b) is amended by adding "investments," after "investigations,".
22 Section 128 (1) is amended
(a) in paragraph (c) by adding "and classes of records and things" after "records and things", and
(b) by repealing paragraph (g) and substituting the following:
(g) to produce the records and things or classes of records and things in the custody, possession or control of the witness.
23 Section 137.1 is amended by adding "in that jurisdiction" after "securities".
24 Section 138 (1) (c) is amended by striking out "51 (2)," and substituting "50.1 (1),".
25 Section 146 is repealed and the following substituted:
146 (1) For the reasons set out in subsection (2), the commission or the superintendent, without a hearing, may order that all persons, the person or persons named in the order or one or more specified persons or classes of persons cease trading in a specified security or exchange contract or in a class of security or class of exchange contract.
(2) The commission or the superintendent may make an order under subsection (1) where the issuer of the security, the exchange on which the exchange contract is traded or the person in respect of which the order is made
(a) fails to file a record required to be filed under this Act or the regulations, provided that the order is revoked as soon as practicable after the record referred to in the order, completed in accordance with this Act and the regulations, is filed, or
(b) files a record required to be filed under this Act or the regulations which record has not been completed in accordance with this Act or the regulations, provided that the order is revoked as soon as practicable after the record referred to in the order, completed in accordance with this Act and the regulations, is filed.
(3) The commission or the superintendent, as the case may be, shall send to any person directly affected by an order made under subsection (1)
(a) written notice of the order, and
(b) written notice of a revocation of the order, if any.
26 Section 147 is amended
(a) in subsection (1) (g) by striking out "33 (1)" and substituting "33", and
(b) in subsection (3) by striking out "after the mailing of the notice of the decision to him by the superintendent," and substituting "after the date on which the superintendent sent the notice of the decision to the person,".
27 Section 149 is amended
(a) in subsection (1) by striking out "or" at the end of paragraph (a), by adding "or" at the end of paragraph (b) and by adding the following paragraph:
(c) a decision by a person acting under authority delegated by the commission under section 6, , and
(b) by repealing subsection (3).
28 Section 153 is amended by striking out "or the regulations or under a former enactment," and substituting ", the regulations, another enactment or a former enactment,".
29 The following sections are added:
154.3 (1) Where it appears to the Supreme Court, on an application made by the commission, that a person outside of the Province may have evidence that may be relevant to an investigation ordered by the commission under section 126, the Supreme Court may issue a letter of request directed to the judicial authority of the jurisdiction in which the person to be examined is believed to be located.
(2) The letter of request referred to in subsection (1) shall
(a) be signed by the judge hearing the application or another judge of the Supreme Court, and
(b) be provided to the commission for disposition under subsection (4).
(3) A letter of request issued under subsection (1) may request the judicial authority to which it is directed to
(a) order the person referred to in the letter of request to be examined under oath in the manner, at the place and by the date referred to in the letter of request,
(b) appoint a person as the examiner to conduct the examination,
(c) order the person to be examined to produce at the examination the records and things or classes of records and things specified in the letter of request,
(d) direct that the evidence obtained by the examination be recorded and certified in the manner specified by the letter of request, and
(e) take any further or other action that the Supreme Court considers appropriate.
(4) The commission shall send the letter of request,
(a) if the examination is to be held in Canada, to the Deputy Attorney General for the Province of British Columbia, or
(b) if the examination is to be held outside Canada, to the Under Secretary of State for External Affairs of Canada.
(5) The letter of request shall have attached to it
(a) any interrogatories to be put to the person to be examined,
(b) if known, a list of the names, addresses and telephone numbers of the solicitors or agents of the commission and the person to be examined, both in the Province and in the other jurisdiction, and
(c) a translation of the letter of request and any interrogatories into the appropriate official language of the jurisdiction where the examination is to take place, along with a certificate of the translator, bearing the full name and address of the translator, that the translation is a true and complete translation.
(6) The commission shall file with the Under Secretary of State for External Affairs of Canada or with the Deputy Attorney General for the Province of British Columbia, as the case may be, an undertaking to be responsible for all of the charges and expenses incurred by the Under Secretary or the Deputy Attorney General, as the case may be, in respect of the letter of request and to pay them on receiving notification of the amount.
(7) This section does not limit any power the commission may have to obtain evidence outside of the Province by any other means.
154.4 (1) In this section "qualifying letter of request" means a letter of request that
(a) is issued by a court or tribunal of competent jurisdiction in a jurisdiction other than the Province,
(b) is issued on behalf of the body that is, in the jurisdiction from which the letter is issued, empowered by the laws of that jurisdiction to administer or regulate the trading of securities or exchange contracts in that jurisdiction,
(c) is issued in relation to a matter under investigation by the body referred to in paragraph (b), and
(d) requests that evidence in relation to the matter referred to in paragraph (c) be obtained from a person believed to be located in the Province.
(2) On receipt of a qualifying letter of request, the Supreme Court may make the order it considers appropriate and may, without limitation,
(a) order that the person referred to in subsection (1) (d) be examined under oath in the manner, at the place and by the date requested by the foreign court or tribunal,
(b) appoint a person as the examiner to conduct the examination,
(c) order that the person referred to in subsection (1) (d) produce at the examination any records and things or classes of records and things specified in the request,
(d) direct that the evidence obtained by the examination be recorded and certified in the manner requested, and
(e) make any further or other order that the Supreme Court considers appropriate.
(3) An order under subsection (2) may be enforced in the same manner as if the order were made in or in respect of a proceeding brought in the Supreme Court and where the person referred to in subsection (1) (d) fails without lawful excuse to comply with the order, the person is in contempt of the Supreme Court and is subject to the penalty that the Supreme Court imposes.
(4) A person ordered to give evidence under subsection (2) has the same rights
(a) to receive conduct money or any other money that the person would have had if the examination were held in relation to a proceeding in the Supreme Court, and
(b) to refuse to answer questions and produce records and things or classes of records and things that the person would have in a proceeding in the Supreme Court.
(5) The person appointed by the Supreme Court as the examiner has the authority to administer an oath or affirmation to the person to be examined.
30 Section 156 is amended by adding the following subsection:
(5) If, on 3 consecutive occasions, the records sent by an issuer to a security holder in accordance with subsection (2) are returned, the issuer is not required to send any further records to the security holder until the security holder informs the issuer in writing of the security holder's new address.
31 Section 159 is amended
(a) in paragraph (13) by striking out "section 58 (1);" and substituting "section 58;" ,
(b) by adding the following paragraph:
(14.1) respecting the lapse date of a prospectus and the continuation of a distribution under a new prospectus including, without limitation,
(i) prescribing the terms and conditions under which a distribution may be continued after the lapse date,
(ii) prescribing the circumstances in which cancellation rights are available to certain purchasers after the lapse date,
(iii) authorizing the superintendent to order an extension of the prescribed period of time within which a distribution may be continued after the lapse date, and
(iv) prescribing the terms and conditions under which a new prospectus may be receipted, , and
(c) by repealing paragraph (35) and substituting the following:
(35) prescribing the fees payable in connection with the administration of this Act or the regulations or the activities carried out by the commission or the superintendent under another enactment or a policy statement, .
32 Section 186 of the Company Act, R.S.B.C. 1979, c. 59, is amended by renumbering the section as section 186 (1) and by adding the following subsection:
(2) If, on 3 consecutive occasions, the records sent by a company to a member in accordance with subsection (1) are returned, the company is not required to send any further records to the member until the member informs the company in writing of the member's new address.
33 Sections 1 (k) and (l), 20 (g), 23, 30 (g), 31 and 48 of the Securities Amendment Act, 1990, S.B.C. 1990, c. 25, are repealed.
34 This Act comes into force by regulation of the Lieutenant Governor in Council
[ Return to: Legislative Assembly Home Page ]
Copyright © 1992: Queen's Printer, Victoria, British Columbia, Canada