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I N S T I T U T E

NI 31-103 Regulatory Update

Garth J. Foster Partner 416 868 [email protected]

Lata CascianoPartner 604 631 [email protected]

Securities Regulatory Compliance Group SeminarTuesday, June 28, 2011

Pierre-Yves Châtillon Partner514 397 [email protected]

Guest Speakers:Sophie JeanRegulatory AdviserAutorité des Marchés Financiers

Chris JepsonSenior Legal CounselOntario Securities Commission

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June 28, 2011Garth Foster and Pierre-Yves Châtillon, Fasken Martineau

Guest Speakers: Sophie Jean, Autorité des Marchés Financiers, andChris Jepson, Ontario Securities Commission

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• Introduction

• Proposed NI 31-103 Amendments

• Cost and Performance Reporting Proposals

• EMD and Account Statements

• CSA Staff Notice – PM Marketing Practices

• CSA & OSC Regulatory Updates• Mortgage Investment Entities

• Enforcement Actions

• Sale of Exempt Securities – Non-Accredited Investors

• Questionnaires

• Other Considerations

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NI 31-103 Amendments

• April 15, 2011 Amendments

• Giving effect to most of the June 25, 2010 Proposal in response to the comments received

• Some of the Proposals not carried through to the final Rule

• Should come into force on July 11, 2011• Subject to Ministerial Approval in certain Provinces

• New title: Registration Requirements, Exemptions and Ongoing Registrant Obligations

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NI 31-103 Amendments (Cont’d)

• Impact on all Categories of Firms• Responsibility of the Firm regarding their registered

individuals and due diligence before sponsoring• s.1.3 of 31-103CP

• Enhanced guidance on Internal Controls and Record-Keeping• ss. 11.1 and 11.5 of 31-103CP

• KYC for Corporate Clients• Threshold of ownership for KYC determination raised from

10% to 25%• s.13.2(3)(b) of NI 31-103

• Referral Arrangements primarily monitored by the Firm• s.13.8 of NI 31-103

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• Impact on Portfolio Managers

• Conflicts / restrictions on certain Managed Account transactions• s.13.5 of NI 31-103 was not extended to IIROC members

carrying out Adviser activities because of potential consequences on trades form inventory accounts

• CSA may publish amendments

• Investment Fund trades exemption for Advisers no longer limited to non-prospectus qualified funds• s.8.6 of NI 31-103

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• Impact on Investment Fund Managers

• Changes in respect of Client Reporting

• IFM to send account statements to Investors once every 12 months if no Dealer of Record• s.14.14(3.1) of NI 31-103

• IFM to send a trade confirm to a security holder if the IFM has made a redemption at the request of the security holder• s.14.12(5) of NI 31-103

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• Impact on International Dealers and Advisers

• Changes to sections 8.18 and 8.26 of NI 31-103

• The permitted client must be a Canadian permitted client

• Notice of reliance on the exemption• by December 1st in each year

• Clarification of the guidance on incidental advice on Canadian securities

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• Impact on SRO members (Part 9)

• Recognition of multiple registrations for an SRO member -clarification of which SRO exemptions apply when the Firm is registered as a Mutual Fund Dealer or an IFM

• Copy to the regulators of SRO prescribed filings on capital and financial statements acceptable (on certain conditions)

• Refer to the May 13 proposal on Part 9 NI 31-103

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• Impact on Individuals

• All 5-day filings have been extended to 10 days

• Time-limits for examinations• Individual need only be registered at any time during the prior

36 month period

• s.3.3 of NI 31-103

• Alternative proficiencies have been added for CCOs and Dealing Representatives of Mutual Fund Dealers and Exempt Market Dealers

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• Exemptions (Part 8)

• Codification of previous guidance on Mobility Exemption• s.2.2 of 31-103CP

• Guidance for exemption applications from IFM having delegated the Fund’s management to a registered affiliate • s.7.3 of 31-103CP

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Cost and Performance ReportingProposals

• Investor Protection Initiative

• Harmonized for all Registered Firms – including IIROC and MFDA members

• Disclosure of all charges associated with Products and Services• At account opening

• When a charge is incurred

• Annual report

• Meaningful reporting on how Investments perform• Net amount invested

• Change in value

• Percentage returns

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Cost and Performance ReportingProposals (Cont’d)

• Investor Research and Industry Consultations

• We believe Investors want this information and should be entitled to receive it

• We have sought fact-based support for our proposals• Investor survey

• Industry consultations

• Development and testing of model performance report

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• Investor Survey Results – Costs

6 9 . 4

6 6 . 9

5 8 . 8

5 6 . 2

4 4 . 1

4 0 . 7

3 4 . 7

2 7 . 1

2 2 . 5

1 5 . 1

0 1 0 2 0 3 0 4 0 5 0 6 0 7 0 8 0

B u y / s e l l c o m m i s s i o n

A c c o u n t a d m i n f e e s

M o n e y M a n a g e m e n t f e e s

L o w i n t e r e s t c a s h b a l a n c e

In t e r e s t p a i d o n m a r g i n a c c o u n t

D e f e r r e d s a l e s c o m m i s s i o n

T r a i l e r f e e s

W r a p f e e s

R e c i p r o c i t y f e e s

N o T e r m s U n d e r s t o o d

% T o p B o x

E x h ib i t 3 . 1 a U n d e r s t a n d in g o f C o m m o n T e r m s ‐ O v e r a l l

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• Investor Survey Results – Performance

7 3 . 6

7 3 . 0

6 5 . 5

4 1 . 2

3 8 . 4

3 1 . 9

1 1 . 4

0 1 0 2 0 3 0 4 0 5 0 6 0 7 0 8 0

O v e r a l l

R a te o f r e tu r n

T e r m d e p o s i t/ G IC in te r e s t

P r in c ip le o f r i s k ‐ r e t r u n

B e n c h m a r k c o m p f u n d s

S & P / T S X C o m p o s ite in d e x

M a n a g e m e n t e x p e n s e r a t io

N o te r m s u n d e r s to o d w e l l

% T o p B o x

E x h ib it 2 . 1 a U n d e r s t a n d in g o f C o m m o n T e rm s ‐ O v e r a ll

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• Costs – Account Opening and Pre-Trade Disclosure

• Enhance disclosure at account opening to cover all charges re:• Operation of the account

• Making, holding and selling of investments

• Compensation received by a Registered Firm

• Express requirement to disclose• Trailing commissions

• Deferred sales charges and guidance on appropriateness of switch transactions

• Pre-trade transaction cost disclosure outside Managed Accounts

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• Costs – Annual Disclosure

• Registered Firms will be required to provide Clients with an annual summary of:• All charges that may apply to the Client’s account

• All charges actually incurred by a Client

• The dollar amount of compensation related to the Client’s account received by the Firm from third parties (e.g., trailing commissions and referral fees)

• Annual disclosure also must include notice of any mutual fund holdings that may be subject to a deferred sales charge

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• Performance Report

• Original cost information to be added to existing account statement

• New performance report to be provided annually with the account statement:• Net amount invested

• Change in value

• Annualized compound percentage returns for these past time periods:• 1, 3, 5 and 10 years

• Since inception of Account

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• Performance Reporting – Benchmarks

• Benefits of requiring benchmarks outweighed by:• Difficulty of ensuring always meaningful

• Research indicating many Investors do not understand how to use them

• No prescriptive requirements:• Propose disclosure of any benchmarks that Dealer or Adviser

chooses to offer

• Guidance on steps to ensure benchmark information will not be misleading to Investors

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• CSA Unresolved Issue: What should be reported in account statements?

• Industry practice ensures most, but not necessarily all, securities are reported to Clients

• For new registration category of Exempt Market Dealer (EMD), most trades are in “client name” and no industry practice to fall back on

• CSA staff are currently developing proposals for further requirements or guidance on the content of account statements

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EMDs and Account Statements

• CSA Staff Notice 31-324

• Sets out CSA’s expectations for EMDs’ account statements

• Focus attention on EMDs distributing securities of related/connected issuers

• Draws attention to guidance CSA has published on the valuation of securities

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CSA Staff Notice on Marketing Practices of Portfolio Managers

• Introduction

• Marketing materials of PMs have a direct influence on Investors• Performance returns

• Claims/statements made

• OSC staff continue to identify marketing deficiencies in reviews of PMs (Approx. 650 registered PMs in Ontario)

• Focused review conducted with CSA colleagues

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CSA Staff Notice on Marketing Practices of Portfolio Managers (Cont’d)

• Survey and Focused Review

• Initial survey conducted to gather preliminary information from PMs

• Final representative sample selected using risk based approach, including:• Focused reviews (56 firms in total, 20 in Ontario)

• Follow up letters (5 in Ontario)

• See Appendix A for jurisdictional breakdown of focused reviews

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• Findings and Guidance

• Examples of continued deficiencies include:• Exaggerated and unsubstantiated claims – Statements of “best

in class” returns

• Disclosure related issues – No disclosure whether performance gross/net of fees

• Presentation and use of hypothetical Performance Data –linking hypothetical and actual Client performance

• See Appendix B for summary of deficiency areas

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• Highlights (?)

DEFICIENCY AREA% OF PMS

IDENTIFIED IN REVIEW

EXAMPLE DEFIENCY GUIDANCE IN AREA

Exaggerated and unsubstantiated claims

60 Claims of “Best in Class” performance Substantiate all claims

Disclosure related issues 57 No disclosure whether returns were net or gross of fees

Disclose accurate, meaningful and up-to-date information

Policies, procedures and internal controls

33No review and approval of marketing material by senior personnel

Implement appropriate review and approval process

Performance composites 30All client portfolios with similar investment strategy not included in a composite

Include all portfolios that meet criteria in a composite, no cherry picking

Holding out and use of names 27Firm used trade name other than full legal name and Commission not notified of its use

Use registered trade names and business titles that are not misleading

Use of benchmarks 23Fixed income fund compared against S&P/TSX Composite with no disclosure

Use benchmarks that are relevant and comparable

Preparation and use of Hypothetical performance data

20Hypothetical performance linked in the same table/graph with actual performance

Present actual client performance returns and not hypothetical performance data

Other performance return issues 9PM presented previous firm returns when investment strategy not similar to new firm

Use previous firm or proprietary account return only where appropriate

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• New Trend and Guidance for Use of Social Media

• Use of Social Media web sites for marketing and communication with Clients is subject to securities legislation

• From the review, PMs are not currently making use of Social Media to market their Firm’s advisory services

• Steady increase in the general use of Social Media websites (e.g., LinkedIn, Facebook)

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• New Trend and Guidance for Use of Social Media (Cont’d)

• Challenges posed by the use of Social Media:• Type of supervision required

• Retaining adequate books and records

• Guidance issued:• Designate appropriate individual responsible for supervision or

approval of communications

• Review adequacy of systems and programs to ensure compliant record retention

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• Current Securities Legislation

• Primarily principles-based rule when assessing marketing practices

• Obligation to deal fairly, honestly and in good faith with Clients

• Issuance of guidance is a useful self assessment tool, however, given we continue to see deficiencies, guidance may not be fully effective

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CSA and OSC Regulatory Update … Quick Mentions

• CSA Staff Notice 31-323 Mortgage Investment Entities

• Mortgage investment entities (MIEs)• invest substantially all assets in debts owing to it secured by

mortgages

• Outside of Alberta, the determination whether a pooled MIE is an investment fund is based on whether its primary activity is:• Managing an investment portfolio that includes mortgages, or

• Mortgage lending, that is, by operating a business that creates and manages mortgages

• Restricted Adviser registration with proficiency relief for PM of pooled MIE that is registered mortgage broker

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CSA and OSC Regulatory Update … Quick Mentions (Cont’d)

• OSC Staff Notice 34-701 Publication of Decisions

• Term suspensions add a new flexibility when crafting remedies

• Negotiated settlement agreements will be published on website and OSC Bulletin, including:• Decisions approving joint recommendations to settle

“opportunities to be heard” (OTBH) where the result is a suspension of registration or the imposition of terms and conditions requiring strict supervision

• Decisions to suspend a registrant where no OTBH has been requested

• Decisions to impose terms and conditions requiring strict supervision where no OTBH has been requested

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• OSC Staff Notice 33-735 Sale of Exempt Securities to Non-Accredited Investors

• Guidance reviewing the elements of the Accredited Investor (AI) definition and steps that should be taken to establish and document determination of AI status

• Particular attention to respective meanings of “financial assets” and “net assets”

• Chiefly directed at EMDs, but PMs should not forget that in a Referral Arrangement, it remains their responsibility to confirm KYC information and make their own determination of AI status

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• OSC Risk Assessment Questionnaire

• New integrated risk assessment questionnaire sent to all PMs, IFMs and EMDs

• Contains a general section for all registrants, then category specific sections

• Includes questions relating to different areas of a Firm’s operations such as:• Registration• Business activities• Financial condition• Custody• Fee arrangements• Compliance

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• OSC Questionnaire – PM Account Statements

• Concern that some PMs do not deliver account statements to their Clients, or do not include transaction information

• Concern that some PMs deliver consolidated account statements, but not a statement for each account

• Questionnaire sent to 50 PMs:• Frequency of delivery • Content of statements• If rely on third party to deliver account statements• Whether provide consolidated statements• Requested samples of account statements

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Other Considerations

• IFM Registration – Domestic + International• Next Steps?

• Dispute Resolution• September 28, 2012

• OSC Investment Funds Practitioner• May 2011

• Mutual Funds Modernization Project• CSA Staff Notice 81-322

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Conclusion

• Implementation of NI 31-103 Amendments

• Further proposals

• Account Cost + Performance Reporting

• EMD + Account Statements

• PM Marketing Practices

• Other Regulatory Initiatives

• Questions?

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VANCOUVER CALGARY TORONTO OTTAWA MONTRÉAL QUÉBEC CITY LONDON PARIS JOHANNESBURG

REFERENCE MATERIALS

BULLETIN Investment Funds

June 8, 2011

OSC Staff Releases Fifth Edition of The Investment Funds Practitioner Guide By: Tracy Hooey and Munier Saloojee | Toronto

On May 16, 2011, staff at the Ontario Securities Commission ("Staff") released the fifth edition of The Investment Funds Practitioner Guide (the "Practitioner"). The Practitioner provides an overview of recent issues identified by Staff resulting from: (i) applications for discretionary relief; (ii) prospectuses; (iii) continuous disclosure documents; and (iv) public inquiries and frequently asked questions. It is intended to assist investment fund managers and their staff or advisors who regularly prepare public disclosure documents and applications for exemptive relief on behalf of investment funds.

A summary of the issues identified in the latest edition of the Practitioner is provided below:

Applications for Discretionary Relief

Requirement to Calculate Daily Net Asset Value (NAV): Staff does not view the typical cost of calculating NAV on a daily basis as a significant burden. Applicants for relief from this requirement may therefore need to address the following issues: (a) how a portfolio will be managed without the benefit of a daily NAV calculation; (b) whether the nature of the portfolio assets of the investment fund affects the ability to calculate NAV daily; and (c) the additional costs to the fund to calculate a daily NAV.

Split Share Companies - Front Running Relief: Historically, relief has been granted from the requirements of section 119 of the Securities Act (Ontario) (the "Act"), a front running prohibition, in order to permit purchases and sales between split share companies and their related dealers. Staff has reconsidered the applicability of section 119 of the Act and determined that it may be more appropriate to obtain relief from section 13.5(2) of National Instrument 31-103 Registration Requirements and Exemptions (formerly section 118 of the Act), which prohibits self-dealing.

Split Share Companies - Secondary Offerings: At the time of their initial distribution, split share companies have routinely received relief from the requirements in National Instrument 81-102 Mutual Funds ("NI 81-102") relating to investments, the calculation and payment of redemptions, the preparation of compliance reports, and the setting of a record date for payment of distributions. When split share companies engage in a secondary offering of their shares, they often request relief from these same provisions of NI 81-102 again. Staff suggested that filers consider whether such applications are necessary as the original relief will have been granted to the issuer itself, not to a particular class of shares. Staff cautioned that new relief may be needed for the calculation and payment of the redemption price of shares, if the split share company is offering a new class of shares not contemplated in its original exemption.

Prospectuses

Publication of Staff Notice 81-714: Staff reminded issuers of the release of OSC Staff Notice 81-714 Compliance with Form 41-101F2 - Information Required in an Investment Fund Prospectus ("Staff Notice 81-714"). This notice sets out Staff views on certain disclosure required by Form 41-101F2 and the types of comments Staff will generally raise in the course of a review of an investment fund long form prospectus. For our discussion on Staff Notice 81-714, please see our March 9, 2011 bulletin.

Forward Fees: When the use of forward agreements is a material feature of a fund, Staff has raised comments during its review of the fund's prospectus to request the disclosure of fees and any other costs associated with the forward agreements. Staff noted that Filers have shown such fees as a percentage of the forward agreement and have disclosed either the maximum percentage or a range.

PIFs for Chief Compliance Officer: The prospectus rules require that a personal information form (PIF) be provided for every director or executive officer of the manager (and issuer, if applicable). Staff reminded issuers that the chief compliance officer of the manager is an individual who falls within the definition of "executive officer" as defined in the prospectus rules and a PIF must be provided for this individual.


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Use of Short Form Prospectus: Staff provided guidance on the use of the short form prospectus by new reporting issuers. Specifically, Staff noted that new reporting issuers are not qualified to use a short form prospectus unless they can rely on the exemption in section 2.7 of National Instrument 44-101 Short Form Prospectus Distributions. One criterion of using the short form is that a new reporting issuer must have a final prospectus that includes comparative annual financial statements for its most recently completed financial year. As the short form prospectus regime incorporates by reference a reporting issuer's continuous disclosure record, a fund must have an established continuous disclosure record before it can file a short form prospectus. If a new fund has not yet completed a financial year, Staff's view is that the fund's continuous disclosure record is not comprehensive enough to permit reliance on the exemption to use the short form prospectus. Staff further clarified that the exemption is not available to a new reporting issuer that has filed a final prospectus with an audited opening balance sheet and has the intention of including unaudited interim financial statements in its short form prospectus. Such financial disclosure can not replace audited "annual financial statements" because: (i) an opening balance sheet, although audited, does not reflect the results of a completed financial year since there have not yet been any operations of the fund; and (ii) while interim financial statements capture the recent operations of the fund, they are not accompanied by an auditor's report.

Relief from 90-Day Filing Requirement: The simplified prospectus and long form prospectus rules both require a final prospectus to be filed no more than 90 days after the preliminary prospectus. An exemption from this requirement may be evidenced by the issuance of a receipt for the final prospectus. Staff reminded issuers that, while relief from the 90-day filing requirement may be evidenced by receipt, the normal application process (including Staff review and consideration of the application; a recommendation being made to the decision maker; and the signing of an approval letter if the decision maker agrees to the relief) must still be observed. Once these steps have been completed, final materials can be filed for Staff's review.

Continuous Disclosure

Review of NI 81-107 Related Disclosure: Staff previously conducted an issue-oriented review of a sample of investment funds to evaluate compliance with the disclosure obligations introduced in National Instrument 81-107 Independent Review Committee for Investment Funds. The review concluded in 2010 and Staff findings were published in OSC Staff Notice 81-713 Focussed Disclosure Review of National Instrument 81-107 Independent Review Committee for Investment Funds ("Staff Notice 81-713"). For our discussion on Staff Notice 81-713, see our June 6, 2011 bulletin.

Public Inquiries and FAQs

Definition of Index Participation Unit: Staff provided their view on what constitutes a "widely quoted market index" for the purposes of the definition of "index participation unit" (an "IPU") in NI 81-102. Staff believes that the term "market index" should be interpreted in a manner that is consistent with the investment restrictions set out in NI 81-102. As a result, an index, which provides exposure to asset classes or strategies that a mutual fund would not be able to engage in directly (i.e. an index that tracks the price of a commodity, the performance of hedge funds, real property, or that incorporates leverage or shorting strategies), would not generally qualify as a "market index". For this reason, while an index provider may label something as an "index" and that index may appear to be widely quoted, it still may not qualify as a "market index" under NI 81-102. Staff also noted that prospectuses for certain exchange traded funds ("ETFs") include disclosure stating that securities of these ETFs qualify as IPUs for the purposes of NI 81-102. Staff cautioned mutual fund managers and portfolio managers to conduct their own analysis of whether securities of an ETF qualify as an IPU and not rely solely on disclosure provided by the ETF.

Point of Sale/Fund Facts FAQs: The following issues were clarified by Staff in respect of the content and filing deadlines for the Fund Facts documents:

1) Transition period. Every class or series of mutual fund must file and post the Fund Facts to the mutual fund's or mutual fund manager's website by July 8, 2011.

2) Filing fees. There are no fees associated with the filing of a Fund Facts document. 3) Frequency of filing. After the initial filing of a Fund Facts, the document must be re-filed along with the renewal simplified prospectus

and upon the occurrence of a material change that relates to the information contained in the Fund Facts. A change to the investment mix of the fund is not likely to be considered a material change so there will generally not be any requirement to file an amendment simply to update the Top 10 investments list or the portfolio breakdown chart. A change to the fund's investment objectives, however, would generally result in such a requirement.


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4) Fund Facts format. Form 81-101F3 Contents of Fund Facts Document sets out requirements for content, order and headings but it does not specify or mandate a specific format other than a requirement to use tables in certain areas and there is no requirement for mutual funds to use that exact layout in the sample published with the new form. Provided that the document follows the mandated order for content, is written in plain language and uses a font that is legible, mutual funds will have flexibility in terms of the format of the Fund Facts. Given that the Fund Facts may be disseminated in an electronic format, the information must be presented in a way that enables it to be printed in a readable format.

5) Disclosure of past performance. The year-by-year return chart requires a mutual fund to have completed a calendar year (January 1 to December 31) before including performance in the Fund Facts. A mutual fund that completes a calendar year following the filing of a Fund Facts, but before renewal, may amend the Fund Facts to include the relevant past performance information.

For more information on the subject of this bulletin, please contact the authors: Tracy L. Hooey 416 868 3439 [email protected] Munier M. Saloojee 416 865 4514 [email protected]

Contacts VANCOUVER

Lata Casciano 604 631 4746 [email protected]

CALGARY

Lloyd Symons 403 261 6161 [email protected]

TORONTO

Stephen Erlichman 416 865 4552 [email protected]

MONTRÉAL

Pierre-Yves Châtillon 514 397 5173 [email protected]

PARIS

Arnauld Achard +33 1 44 94 96 98 [email protected]

This publication is intended to provide information to clients on recent developments in provincial, national and international law. Articles in this newsletter are not legal opinions and readers should not act on the basis of these articles without first consulting a lawyer who will provide analysis and advice on a specific matter. Fasken Martineau DuMoulin LLP is a limited liability partnership and includes law corporations.

© 2011 Fasken Martineau

http://www.fasken.com/en/tracy-hooey

mailto:[email protected]

http://www.fasken.com/en/munier-saloojee


http://www.fasken.com/en/lata-casciano


http://www.fasken.com/en/lloyd-symons


http://www.fasken.com/en/stephen-erlichman


http://www.fasken.com/en/Pierre-Yves-Chatillon


http://www.fasken.com/en/Arnauld-Achard


BULLETIN Securities and Mergers & Acquisitions

June 9, 2011

OSC Staff Notice 33-735 – Sale of Exempt Securities to Non-Accredited Investors By: Aaron Atkinson and Francesco Tallarico | Toronto

On May 13, 2011, the Ontario Securities Commission (OSC) Staff released OSC Staff Notice 33-735 Sale of Exempt Securities to Non-Accredited Investors (Notice) which expressed concerns that some issuers and dealers are relying on the accredited investor exemption (AI Exemption), contained in National Instrument 45-106 Prospectus and Registration Exemptions (NI 45-106), to sell securities to individual investors who do not meet the applicable requirements of the exemption. This Bulletin highlights the expectations of the OSC for issuers and dealers selling securities pursuant to the AI Exemption.

Background of the AI Exemption

In Ontario, issuers and registered dealers are permitted to sell exempt securities without a prospectus if investors meet certain requirements (Accredited Investors). Although NI 45-106 contains several categories of Accredited Investors, the focus of the Notice is directed to those categories relating to individuals who satisfy defined minimum financial assets or net assets thresholds, namely,

an individual who, either alone or with a spouse, beneficially owns financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1,000,000; or

an individual who, either alone or with a spouse, has net assets of at least $5,000,000.

Financial Assets Versus Net Assets

The Notice cautions that there is a frequent misunderstanding in respect of the concepts of financial assets and net assets, and that the concepts should not be confused with each other.

Pursuant to NI 45-106, financial assets include: (i) cash, (ii) securities, or (iii) a contract of insurance, deposit or an evidence of a deposit that is not a security for the purposes of securities law. The Notice confirms that the value of an individual investor's house or other real estate is not included in determining an individual investor's financial assets. In contrast, net assets include all of the individual investor's assets, minus all of his/her liabilities, which means that an individual investor's real estate or home may be included.

The Notice notes that some issuers and dealers are not making it clear to investors that financial assets do not include real estate or the individual investor's home. Therefore, issuers and dealers may be selling exempt securities in reliance on an AI Exemption to investors who do not meet the definition of Accredited Investor.

OSC Expectations

Before an issuer can distribute a security in reliance on the AI Exemption the issuer must ensure that the investor does in fact meet the definition of an Accredited Investor. Thus, the responsibility of ensuring compliance is ultimately on the issuer. However, in many instances a dealer will be engaged by an issuer to assist in the distribution of the exempt securities to investors. In those cases, the dealer involved in a distribution of exempt securities must also ensure that an individual investor meets the definition of Accredited Investor, and must also, among other things, comply with National Instrument 31-103 Registration Requirements and Exemptions (NI 31-103), the "know your client" (KYC) rules under NI 31-103 and any agency or underwriting agreement governing the distribution.

In most instances, the subscription agreement used in an exempt distribution transaction will contain an accredited investor form, known as an "accredited investor certificate", which lists categories of Accredited Investors which often repeat the relevant statutory provisions. Each investor is required to check off a box reflecting which category of Accredited Investor is suitable for that investor. Generally, a subscription agreement will contain a clause that the issuer and dealer may rely on the representation made by the investor on this certificate; however, the Notice states it is not sufficient for issuers and dealers to rely on this certificate alone.


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The Notice also sets forth a non-exhaustive list of steps that dealers should take in order to ensure that they are complying with securities laws when selling exempt securities to an Accredited Investor. The steps suggested include:

Providing adequate training to the dealer's chief compliance officer (CCO) and dealing representatives to ensure that they understand the definition of Accredited Investor, including the difference between "financial assets" and "net assets";

Reviewing KYC information to determine whether a client meets the definition of Accredited Investor and ensuring this information is updated regularly;

Explaining the Accredited Investor definition to clients before completing the KYC form and highlighting the distinction between financial assets and net assets;

Reviewing the KYC form to ensure completeness, consistency with the definition of Accredited Investor and the suitability of the trade for the client. In the event of conflicting information the dealer must take follow-up steps to ensure that the investor is an Accredited Investor;

Retaining evidence of follow-up procedures and dealer representative notes;

Maintaining complete and accurate records; verbal representations from a client are not sufficient;

Complying with CSA Staff Notice 33-315 Suitability Obligation and Know Your Product and NI 31-103, which requires dealers to understand the general investment needs and objectives of their clients, whether the proposed investment is suitable and the attributes and risks of the securities recommended to clients;

Establishing policies and procedures to ensure that exempt securities are distributed only to investors that meet the definition of Accredited Investor; and

Reporting the sale of the exempt securities to the OSC.

Recent OSC Enforcement Proceedings

On May 13, 2011, the OSC published its reasons for decision in Goldpoint Resources Corporation, et al[1] (Goldpoint). Goldpoint involved a scheme whereby Goldpoint, a private issuer, and certain of its directors, officers and employees (Respondents) distributed securities without a prospectus or being registered under the Securities Act (Ontario).

Goldpoint addressed various issues under securities laws, including matters related to the AI Exemption. Consistent with the approach taken in the Notice, the OSC confirmed in Goldpoint that persons trading securities are responsible for determining whether, given the facts available, the AI Exemption is available. In Goldpoint the OSC stressed that it is not appropriate for a person to assume that an exemption is available. In addition, the OSC highlighted the financial asset and net asset categories of the definition of Accredited Investor, and that real estate should not be included in the calculation of financial assets.

In Goldpoint many of the investors were provided with definitions of Accredited Investor which inappropriately included real estate in calculating the financial asset test. In addition, not every investor was asked about their financial position or whether they were an Accredited Investor. As a result, the steps taken by the Respondents were found to be insufficient to comply with the AI Exemption. In respect of the financial asset and net asset categories, the OSC stated that the Respondents should have determined whether each investor was an Accredited Investor based on the information investors provided to the Respondents about their financial position. The fact that investors provided a representation in the subscription agreement that they qualified as an Accredited Investor was not adequate. Quoting the Companion Policy to NI 45-106, the OSC confirmed that sellers must have a reasonable belief that an investor understands the meaning of the definition of Accredited Investor. Moreover, prior to discussing the particulars of an investment, sellers should discuss with investors the various criteria for qualifying as an Accredited Investor and whether such investors meet the criteria of an Accredited Investor, and request details on how such investors satisfy the tests in the definition.

In addition to Goldpoint, the OSC recently released a series of settlement agreements entered into between the OSC and Nelson Financial Group Ltd., Nelson Investment Group Ltd. and certain officers, employees and a registered dealing representative of the foregoing entities (Nelson Settlements[2]). The Nelson Settlements demonstrate the OSC's continued monitoring of the application of the AI Exemption by issuers and dealers, and the consequences for distributing securities where the AI Exemption is not available.

Conclusion

The OSC has indicated that it will continue to monitor issuers and dealers who distribute securities under the AI Exemption, and that it will take enforcement proceedings or other regulatory action against issuers and dealers who sell exempt securities under the AI Exemption to


2



3

investors who are not Accredited Investors. Although in Goldpoint the OSC was dealing with a scheme where it was evident that those engaged in the financing activity were deficient in their application of the AI Exemption, Goldpoint serves as a reminder to issuers and dealers of the importance of ensuring that investors indeed fall within the definition of Accredited Investor and collect documentary evidence and use follow-up procedures to that end.

For more information on the subject of this bulletin, please contact the authors: Aaron J. Atkinson 416 865 5492 [email protected] Francesco Tallarico 416 865 4428 [email protected]

[1] In the Matter of the Securities Act, R.S.O. 1990, c. S.5, as amended And In the Matter of Goldpoint Resources Corporation, Pasqualino Novielli, Brian Patrick Moloney and Zaida Pimentel, (OSC bulletin release date: 13 May 2011), OSC Decision, online: OSC website.

[2] In the Matter of the Securities Act, R.S.O. 1990, c. S.5, as amended And In the Matter of Nelson Financial Group Ltd., Nelson Investment Group Ltd., Marc D. Boutet, Stephanie Lockman Sobol, Paul Manuel Torres, H.W. Peter Knoll, (OSC bulletin release date: 20 May 2011), OSC Settlement Agreements, online: OSC (PDFs) www.osc.gov.on.ca/documents/en/Proceedings-SET/set_20110512_nelson.pdf, www.osc.gov.on.ca/documents/en/Proceedings-SET/set_20110511_nelson-torres.pdf, and www.osc.gov.on.ca/documents/en/Proceedings-SET/set_20110516_nelson-sobol.pdf.

Contacts VANCOUVER TORONTO MONTRÉAL PARIS

Lata Casciano Richard J. Steinberg Peter Villani Ginette Leclerc 604 631 4746 [email protected]

CALGARY

R. Greg Powers Q.C. 403 261 6148 [email protected]

416 865 5443 [email protected]

OTTAWA

Virginia K. Schweitzer 613 236 3882 [email protected]

514 397 4316

+33 1 44 94 96 98

[email protected] [email protected]

LONDON PARIS/JOHANNESBURG

David Smith Al Gourley +44 207 917 8510

+27 11 685 0804

[email protected] [email protected]

This publication is intended to provide information to clients on recent developments in provincial, national and international law. Articles in this newsletter are not legal opinions and readers should not act on the basis of these articles without first consulting a lawyer who will provide analysis and advice on a specific matter. Fasken Martineau DuMoulin LLP is a limited liability partnership and includes law corporations.

© 2011 Fasken Martineau

http://www.fasken.com/en/aaron-atkinson


http://www.fasken.com/en/Francesco-Tallarico


http://www.osc.gov.on.ca/en/Proceedings_rad_20110505_goldpoint.htm

http://www.osc.gov.on.ca/documents/en/Proceedings-SET/set_20110512_nelson.pdf

http://www.osc.gov.on.ca/documents/en/Proceedings-SET/set_20110512_nelson.pdf

http://www.osc.gov.on.ca/documents/en/Proceedings-SET/set_20110511_nelson-torres.pdf

http://www.osc.gov.on.ca/documents/en/Proceedings-SET/set_20110516_nelson-sobol.pdf

http://www.fasken.com/en/lata-casciano


http://www.fasken.com/en/greg-powers


http://www.fasken.com/en/richard-steinberg


http://www.fasken.com/en/virginia-schweitzer


http://www.fasken.com/en/peter-villani


http://www.fasken.com/en/david-smith


http://www.fasken.com/en/ginette-leclerc


http://www.fasken.com/en/al-gourley



BIOGRAPHIES


BIOGRAPHY

1

Areas of Practice

Mining - Global Mining

Securities and Mergers & Acquisitions

Private Equity

Technology and Intellectual Property

Corporate / Commercial

Corporate Governance

Joint Ventures

Cross-Border and International Transactions

Education

LLB, University of Manitoba, 1984

Year of Call

British Columbia, 1986

Charlotte Pamela Bell Associate Counsel

Vancouver

Direct Line: 604 631 3141 Facsimile: 604 632 3141 [email protected] www.fasken.com/Charlotte-Bell Charlotte Bell, associate counsel, practices securities law in the Business Law Group. Her practice focuses on assisting emerging technology, industrial and resource companies to obtain local,national and international public and private financing. Charlotte has guided numerous companies inCanada and the United States through their initial public offerings, the listing of their securities onthe major Canadian stock exchanges, and subsequent public and private equity and debt offerings.She has assisted companies listing on the TSX Venture Exchange by way of reverse takeovers,mergers and acquisitions. Charlotte also provides ongoing corporate governance advice in respectof the myriad of obligations faced by public companies. The current Chair of the TSX Venture Exchange National Advisory Committee, and Secretary of the Securities Policy Advisory Committee to the British Columbia Securities Commission, Charlotteprovides her clients with exceptional strategies and solutions.

Representative Experience

REM Forest Products acquired by Prima Columbia Hardwood Advised REM Forest Products Inc.

Amica Mature Lifestyles completes $15 million common share offering Advised Amica

Moydow Mines and Franco-Nevada complete plan of arrangement Advised Moydow Mines International Inc.

Investment firms acquire Gemcom Software for $190 million Advised Gemcom Software International Inc.

Pan African Mining Corp. acquired by Asia Thai Mining in $157 million deal Advised Pan African Mining Corp.

MAG Silver closes $46.5 million bought deal private placement Advised MAG Silver Corp.

Meridex Software completes acquisition of Savicon Advised Meridex Software Corporation

Pan African Mining closes private placement Advised Pan African Mining Corp.

MAG Silver closes $20 million private placement Advised MAG Silver in this transaction.

Imperial Metals Corporation, CAT-Gold Corporation and bcMetals Corporation, 2006 BCSECCOM 705 Counsel to Imperial Metals Corporation


BIOGRAPHY Charlotte Pamela Bell

2

Gemcom acquires Surpac Minex Group for $26 million Advised Gemcom Software International Inc.

Assisted junior companies with their initial corporate structure, seed capital financing, initial public offerings, listings on stock exchanges and subsequent private and public financings

Completed qualifying transactions for capital pool companies with concurrent public or private financings, involving a variety of technology, industrial and resource companies

Closed private placements of equity, debt and convertible debt securities for private and public companies

Completed reverse takeover transactions

Effected plans of arrangement by which public companies having shareholders in Canada and the United States merged

Presentations

Securities Continuous Disclosure Update, Securities Group Seminar, December 7, 2010

Venture Success Workshops: Managing a Public Company, TMX Group Annually, November 18-19, 2010

Venture Success Workshops: Managing a Public Company, TMX Group Annually, May 13-14, 2010

Public Companies: Better, Faster, Cheaper, Simon Fraser University, Faculty of Business Administration, February 21-23, 2008

Managing a Public Company, TSX Venture Exchange Workshop Series, November 22-24, 2007

Public Companies: Financing, Governance and Compliance, Simon Fraser University, Faculty of Business Administration, November 1-2, 2007

Women's Executive Network Forum: Introduction to Women on Boards, October 3, 2007

Women's Executive Network Forum: Women on Boards - An Advanced Case Study, October 2, 2007

Women's Executive Network Forum: Women on Boards - An Advanced Case Study, June 12, 2007

Women on Boards - Women's Executive Network Series, March 28, 2006

Institute of Chartered Accountants of British Columbia

Memberships and Affiliations

Chair, TSX Venture Exchange National Advisory Committee

Secretary, Securities Policy Advisory Committee to the British Columbia Securities Commission

Former Chair, Securities Law Section, Canadian Bar Association (BC Branch)

Former Member, Toronto Stock Exchange Advisory Board

Former Member, Vancouver Stock Exchange Advisory Committee

Former Member, Vancouver Stock Exchange Streamlining Committee

Former Member, Pacific District Council of the Investment Dealers Association

Former Member, Securities Law Advisory Committee to the British Columbia Securities

BIOGRAPHY Charlotte Pamela Bell

3


Commission

Former Member, British Columbia Civil Remedies Committee


BIOGRAPHY

1

Areas of Practice



Education

LL.B., Laval University, 2006

Year of Call

Québec, 2008

Languages

French

English

Spanish

Sophie Lessard Berger Associate

Québec City

Direct Line: 418 640 2088 Facsimile: 418 647 2455 [email protected] www.fasken.com/Sophie-Lessard-Berger Sophie Lessard Berger's activities focus mainly on matters of business law. More specifically, herpractice concentrates on corporate reorganizations, mergers, as well as business sale and purchase transactions. She takes an interest in securities and other forms of investment, such as private-sector funding. In the course of her practice, she is also called upon to draft many corporatedocuments and advise her clients on various aspects of their economic activities.


Novacap and Desjardins Capital régional et coopératif make a substantial investment in Creaform Inc. Acted on Behalf of Creaform and Its Founding Partners

PurGenesis Technologies announces funding from Investissement Québec for its Montmagny facilities Advised PurGenesis Technologies Inc.

EXFO completes acquisition of Brix Networks Advised EXFO Electro-Optical Engineering Inc.

PureCell Technologies raises $14.5 million toward development of Montmagny laboratory Advised PureCell Technologies

Presentations

NI 31-103 Registration Reform - Regulatory Update, Investment Products and Wealth Management Group Seminar, March 5, 2010

Mutual Fund Dealers, NI 31-103 Registration Requirements Seminar Series, November 5, 2009

Investment Dealers, NI 31-103 Registration Requirements Seminar Series, October 29, 2009

Portfolio Managers, NI 31-103 Registration Requirements Seminar Series, October 22, 2009

Investment Fund Managers, NI 31-103 Registration Requirements Seminar Series, October 15, 2009

Exempt Market Dealers, NI 31-103 Registration Requirements Seminar Series, October 6, 2009


Member of the Québec Bar

Member of the Québec City Bar

Member of the Canadian Bar Association

Member of the Association du Jeune Barreau de Québec


BIOGRAPHY

1

Areas of Practice



Life Sciences

Investment Products & Wealth Management

Cross-Border and International Transactions


Education

B Comm, University of British Columbia, 1982

LLB, University of British Columbia, 1986

Year of Call

Ontario, 1989

British Columbia, 1987

Lata Casciano Partner

Vancouver

Direct Line: 604 631 4746 Facsimile: 604 632 4746 [email protected] www.fasken.com/Lata-Casciano Lata Casciano, partner, chairs the Securities and Mergers & Acquisitions Group in Vancouver and isa member of the Steering Committee for the National Securities and Mergers & Acquisitions Group.

Lata has tremendous securities expertise. From 1993 to 1997, Lata worked for the British Columbia Securities Commission ("BCSC") as Senior Legal Counsel and Policy Advisor in the Policy andLegislation Division, and from 1989 to 1992 she worked for the Ontario Securities Commission("OSC") as Solicitor, initially in the Legal Adviser's Office and then in the Corporate Finance Branch. While at the Commissions, Lata developed legislation and policy related to securities regulations,primarily in relation to corporate finance matters, including derivatives, real estate securities andmortgage syndicates. She spearheaded the new prospectus disclosure system for mutual funds andparticipated in the development of the new national rules on mutual funds, commodity pools andmutual fund sales practices, all for the Commissions. Lata also represented the Commissions on numerous committees, including the CSA Mutual Fund Committee, the CSA Task Force on CivilRemedies and Integrated Disclosure System, the CSA National Escrow Committee and the CSANational Policy Statement 41 – Shareholder Communication Committee.

These opportunities, challenges and contributions have greatly enhanced Lata's current lawpractice. Hers encompasses all aspects of securities, mergers and acquisitions, and investmentfunds. She has acted as issuer's counsel and underwriters' counsel in a variety of domestic and cross-border public and private financings, and mergers and acquisitions including takeover bids.She regularly advises clients on ongoing compliance matters, including ongoing disclosurerequirements and corporate governance matters as well as applications for relief from regulatoryrequirements.


Gold Wheaton acquired by Franco-Nevada Counsel to Gold Wheaton Gold Corp. in its acquisition by Franco-Nevada Corporation

Pelangio Exploration closes private placement Counsel to Pelangio Exploration Inc. in its $4 million private placement of units

Great Basin Gold closes $86 million bought deal offering of common shares Advised syndicate of underwriters led by RBC Dominion Securities Inc.

Eldorado Gold and Brazauro Resources complete plan of arrangement Advised Eldorado Gold Corporation

Eldorado Gold closes acquisition of Sino Gold, creating $7.7 billion market cap company Advised Eldorado Gold Corporation

Great Basin Gold closes $126.5 million bought deal public offering of convertible debentures Advised the syndicate of underwriters led by RBC Capital Markets

Pelangio Exploration closes bought deal private placement Advised Pelangio Exploration Inc.


BIOGRAPHY Lata Casciano

2

Eldorado Gold acquires stake in Sino Gold Advised Eldorado Gold Corporation

First Quantum Minerals completes $345 million overnight marketed public offering Advised First Quantum Minerals Ltd.

Great Basin Gold completes $149.5 million equity financing Advised the underwriters led by BMO Capital Markets and RBC Capital Markets

Pelangio completes plan of arrangement; renamed PDX Resources Advised Pelangio Mines Inc.

Skye Resources and HudBay Minerals complete $460 million business combination Advised Skye Resources Inc.

Sonus Pharmaceuticals and OncoGenex Technologies complete business combination Advised OncoGenex Pharmaceuticals, Inc.

Pan African Mining Corp. acquired by Asia Thai Mining in $157 million deal Advised Pan African Mining Corp.

GLG Life Tech Corporation signs strategic alliance and multi-decade supply agreement with leading multi-national agribusiness corporation for natural zero-calorie sweetener Advised GLG Life Tech Corporation

Robert Bosch GmbH acquires Extreme CCTV Advised Extreme CCTV Inc.

Mineral Securities completes $39.6 million acquisition of common shares of Platmin Advised Mineral Securities Limited

International Automotive Components completes Collins & Aikman soft trim acquisition Advised International Automotive Components Group North America

sxr Uranium One and UrAsia Energy complete US$5 billion business combination Advised sxr Uranium One Inc.

Great Basin Gold completes $149.5 million financing Advised the underwriting syndicate led by BMO Capital Markets

Pelangio Mines completes sale of Detour Lake Property Advised Pelangio Mines Inc. in its sale of Detour Lake Property to Detour Gold Corporation.

Gemcom acquires Surpac Minex Group for $26 million Advised Gemcom Software International Inc.

Eldorado Gold completes $186 million offering Advised Eldorado Gold Corporation

International Royalty completes offering and acquires Voisey's Bay Royalty Advised International Royalty Corp.

Doman Industries completes restructuring Advised Doman Industries Ltd. and Western Forest Products

Ivanhoe Mines completes $150 million bought deal offering Advised underwriting syndicate including HSBC Securities (Canada), GMP Securities, CIBC World Markets and UBS Securities Canada

Eldorado Gold completes $46 million bought deal financing Advised Eldorado Gold Corporation

MacDonald, Dettwiler completes $135 million share distribution Advised the underwriting syndicate led by RBC Dominion Securities Inc.



3

MDA Holdings Corporation provides $36.4 million secondary offering of common shares of MacDonald, Dettwiler and Associates Advised the underwriting syndicate led by Scotia Capital Inc.

Diebold acquires Global Election Systems Advised Diebold, Incorporated

DeBeers successful in its unsolicited take-over bid of Winspear Diamonds Inc. Advised De Beers Canada Holdings Ltd.

Pope & Talbot Inc. successful in its unsolicited takeover bid of Harmac Pulp Inc. Advised Pope & Talbot Inc.

Represented the general partner of a flow-through share oil and gas limited partnership, as lead counsel, in connection with its initial prospectus offering of limited partnership units.

Represented the manager of a managed futures fund as lead counsel in connection with the fund's initial prospectus offering of trust units and renewal of its prospectus, and in obtaining the regulatory relief necessary for the fund's operations.

AnorMED completes public offerings totalling more than $100 million Advised AnorMED Inc.

Simon Fraser University completes a $150 million private placement of unsecured debentures Represented Simon Fraser University

Advised a dealer in connection with a private placement of a novel offering of derivative securities Advised a dealer

Advisor to The Investment Funds Institute of Canada in connection with the collapse of Vancouver-based securities dealer Advised The Investment Funds Institute of Canada

Advisor to the Mortgage Brokers Association of British Columbia in connection with proposed legislative amendments to the Mortgage Brokers Act Advised the Mortgage Brokers Association of British Columbia

Consultant to British Columbia Securities Commission in connection with new regulations governing mutual fund disclosure and mutual fund sales practices. Consultant to British Columbia Securities Commission

Counsel to a shareholder of a target company in connection with its successful application to the BCSC for orders restraining an illegal takeover bid Advised a shareholder of a target company

GMP Securities Ltd. completes two private placements of special warrants Advised GMP Securities Ltd.

RBC Dominion Securities Inc. completes $84 million IPO of common shares of MacDonald, Dettwiler and Associates Ltd. Represented RBC Dominion Securities Inc.

Represented the general partner of a flow-through share oil and gas limited partnership, as lead counsel, in connection with a private placement of limited partnership units.

Represented the British Columbia Securities Commission and the Ontario Securities Commission on numerous commitees of the CSA Represented the British Columbia Securities Commission (BCSC) and the Ontario Securities Commission (OSC)

Represented an international dealer, as lead counsel, in connection with a private placement of Class A and B Preferred Shares of a local biotechnology company



4

Presentations

NI 31-103 Regulatory Update, Securities Regulatory Compliance Group Seminar, June 28, 2011

M&A Primer, Global Mining Group Seminar, March 1, 2011

Securities Continuous Disclosure Update, Securities Group Seminar, December 7, 2010

Registration Reform Update, Securities Regulatory Compliance Group Seminar, November 30, 2010

Mutual Funds Point-of-Sale Regime, Investment Products & Wealth Management Group Seminar, November 26, 2010

Current issues & Trends in Public M&A Transactions, 2nd Annual Fasken Martineau Symposium, October 19, 2010

Regulatory Update - NI 31-103 Registration Reform and Other Matters, Securities Regulatory Compliance Group Seminar, September 20, 2010






Current Issues in M&A Transactions, 1st Annual Fasken Martineau Symposium, October 7, 2009


Understanding National Instrument 31-103 Registration Requirements, Roundtable discussion with the BCSC (British Columbia Securities Commission), April 24, 2008

Ontario Civil Liability Regime for Secondary Market Disclosure Round-Up CNQ, January 5, 2006

Corporate Governance Update, Corporate Counsel and Business Law Sections, Canadian Bar Associations (BC Branch), January 2004

Understanding New Liabilities Related to Mining Disclosure, The Conference Board of Canada, New Disclosure Rules for Mining Companies, December 2002

Corporate Governance Compliance, CBA Corporate Counsel and Business Law Sections, November 2002

eFinancing Course, From IP Address to IPO, E-business, L.L.M. E-Business Law Program, January - March 2002

Legal Role in Financial Risk Management - Securities Regulatory Practice and Pitfalls, CCCA Annual Meeting 2001, August 2001

All You Need to Know About Employee Stock Incentives, HRMA / WorldatWork Conference 2001, June, 2001

Trading Securities on the Internet - Potential Liabilities for Issuers, Insight, Issuing and Trading Securities on the Internet, October 1999

The Vantage Bankruptcy: A Mutual Fund Industry Perspective, The Insolvency Institute of Canada, January 1999

Update on the Proposal to Provide Statutory Civil Liabilities for Continuous Disclosure; The



5

Regulation of Real Estate Securities in British Columbia (Updated) (Co-Authored), Insight, Western Canadian Securities Conference, April 1998

Civil Liability for Inadequate Disclosure Under Canadian Securities Law, 27th Annual Workshop on Commercial and Consumer Law, October 1997

Mutual Fund Disclosure Initiatives, The Investment Funds Institute of Canada Mutual Fund Forum, April 1997

Changes in the Regulation of Mutual Funds, Insight, B.C. Securities Forum - The Changing Face of BC Capital Markets, March 1997

Regulation of Real Estate Securities, CBA Real Estate Property Section Meeting, January 1997

Internet Disclosure - Corporate Communications on the World Wide Web, Insight, Western Canadian Securities Forum, November 1999

Publications

"Minimizing Liability for Forward-Looking Information", Securities and Mergers & Acquisitions Bulletin, December 16, 2010

"Certification Compliance Update", Securities and Mergers & Acquisitions Bulletin, December 13, 2010

"The British Columbia Securities Commission mandates electronic filing of distribution reports", Securities and Mergers & Acquisitions Bulletin, August 2009

"BCSC announces streamlined short-form prospectus reviews for mining issuers", Securities and Mergers & Acquisitions Bulletin, July 2009

"Q&A: What options are available to access public financing in volatile market conditions?", BC Business magazine's "Ask a Lawyer" feature, July 2009

"Global Mining Group Newsletter", Summer 2009 issue, June 2009

"OSC Decision in HudBay Identifies Fair Treatment of Shareholders as the Key Consideration in Requiring HudBay Shareholder Approval of the Transaction and Questions the Independence of Financial Advisers", Securities and Mergers & Acquisitions Bulletin, June 2009

"British Columbia Takes Action Under Instrument Regulating Over-the-Counter Issuers With Connections to British Columbia", Securities and Mergers & Acquisitions Bulletin, May 2009

"Global Mining Group Newsletter", Spring 2009 issue, March 2009

"CSA Offers Additional Guidance on Continuous Disclosure in Current Economic Conditions", Securities Law Bulletin, January 2009

"Changes To Officer Certification Requirements", Securities Law Bulletin, January 2009

"New Material Contract Filing Obligations Effective March 17, 2008", by Lata Casciano, Georald Ingborg and Steve Saville, February 2008

"Proposed National Instrument 45-106 Harmonizing Prospectus and Registration Exemptions Across Canada", Securities and Mergers & Acquisitions Bulletin, February 2005

"New Regulation Governing Commodity Pools", Investment Funds Bulletin by Lata Casciano, October 2002


Securities Section, Canadian Bar Association, (BC Branch)

Prospectors and Developers Association of Canada


6


Association for Mineral Exploration of British Columbia


BIOGRAPHY

1

Areas of Practice




Education

B.A., McGill University, 1971

LL.L., University of Ottawa, 1973

LL.B., University of Ottawa, 1974

Year of Call

Québec, 1976

Languages

French

English

Pierre-Yves Châtillon Partner

Montréal

Direct Line: 514 397 5173 Facsimile: 514 397 7600 [email protected] www.fasken.com/Pierre-Yves-Chatillon Pierre-Yves Châtillon practices mainly in the areas of corporate, commercial and securities law with a special emphasis on private financing, as well as business mergers, acquisitions and sales. Healso specializes in the organization, restructuring and distribution of private and public investmentfunds.

Where investment funds are concerned, he has been involved in the start-up, renewal, pooling and termination of funds, in particular, on behalf of public and private fund families. He has also dealtwith issues relating, among other things, to the acquisition and disposition of fund families and their managers, funds of funds, the use of derivatives in alternative products and networking.

In addition, he represents clients on registration matters and compliance as dealers or advisors. Hehas commented on policy initiatives in the investment funds area and assisted the Canadian Securities Administrators in drafting their funds on funds regime.

Mtre Châtillon currently sits on the Investment Funds Institute of Canada's Fund GovernanceWorking Group, and chairs the Operational Steering Committee of the Québec Investment Funds Council, of which he is director. Past member of the Fund Assessment Committee, which educatesinvestors and promotes corporate governance, upon appointment by the Québec Autorité desmarchés financiers. He chairs the independent review committee of the Sun Life mutual funds.

Pierre-Yves Châtillon has given several lectures on public financing, investment funds in generaland compliance by registered dealers and advisors.


Industrial Alliance acquires DundeeWealth's Quebec-based mutual fund dealer and insurance distribution operations Advised Industrial Alliance Insurance and Financial Services Inc.

Industrial Alliance acquires Money Concepts and AEGON Dealer Services Canada Advised Industrial Alliance Insurance and Financial Services Inc.

Promutuel Capital buys Triglobal Capital Management network Advised Promutuel Capital

Natcan Investment Management Inc. reaches sub-management agreement with Selexia Investment Management Inc. to manage its Canadian large-cap institutional portfolios Advised Natcan Investment Management

Ethical Funds and Northwest Mutual Funds in new national partnership with $5.5 billion assets under management Advised Desjardins Group.

Addenda Capital completes $114 million IPO Advised the underwriting syndicate co-led by CIBC World Markets Inc. and National Bank Financial Inc.


BIOGRAPHY Pierre-Yves Châtillon

2

Dundee Wealth Management acquires StrategicNova Advised CDPQ Financial Services

Mergers and acquisitions of regulated securities businesses

Organization and monitoring of public and private groups of investment funds, hedge funds and venture capital funds

Client representation in securities regulation

Presentations



Mutual Funds Point-of-Sale Regime, Investment Products & Wealth Management Group Seminar, November 26, 2010








Understanding National Instrument 31-103 Registration Requirements, Roundtable discussion with the AMF (Autorité des Marchés Financiers), April 18, 2008

Setting-up an independant review committee for mutual funds, April 26, 2006

2nd Conference on Income Trusts - Market fluctuations: Will income trusts be spared?, March 16, 2005

The liability of beneficiaries of an income trust : What are the risks?, May 27, 2003

Publications

"CSA Proposes Amendments to National Instrument 31-103: Registration Requirements and Exemptions", Investment Products & Wealth Management Bulletin, September 14, 2010

"OSC Issues Staff Notice Regarding Offerings of Contracts for Difference", Canadian Securities Law News, December 2009

"OSC Issues Staff Notice Regarding Offerings of Contracts for Difference", Securities and Mergers & Acquisitions Bulletin, November 2009

"National Instrument 31-103: A New Registration Regime", Investment Products & Wealth Management Bulletin, September 2009

"The Canadian Securities Administrators Adopt Regulatory Amendments to Extend the Passport System to Registration", Securities and Mergers & Acquisitions Bulletin, February 2009

"Canadian Securities Administrators Propose Revised Registration Regime for Dealers, Advisers

BIOGRAPHY Pierre-Yves Châtillon

3


and Fund Managers", Investment Funds Bulletin, March 2008

"Registration Obligations under proposed National Instrument 31-103", Federated Press, May 2007

"Bill 30 has been adopted", by Dominique Monet, Lyne Duhaime and Pierre-Yves Châtillon, December 2006

"Exempted distributions under Instruments 45-106 and 45-102 (Placements dispensés selon les Normes 45-106 et 45-102)", Co-author, document in French only, October 2005

"Implementation of Canadian private placement rules - National instrument 45-106", by Pierre-Yves Châtillon, August 2005

"Securities: New prospectus and registration exemption requirements", March 11, 2005

"New requirements: Prospectus and registration exemptions", Securities Bulletin by Pierre-Yves Châtillon, Catherine Isabelle and Lévy Bazinet, March 2005

"Québec harmonizes exempt distribution and resale rules with those in effect in most Canadian jurisdictions", Securities Bulletin by Pierre-Yves Châtillon, June 2004

"Proposals to reconnect theory and practice: Rethinking point of sale disclosure for segregated funds and mutual funds", Securities Bulletin, June 2003

"The USL project: Blueprint for uniform securities legislation for Canada", Securities Bulletin by Pierre-Yves Châtillon, April 2003

"CSA New Rules on Investment Fund Continuous Disclosure Requirements", Investment Funds Bulletin by Christian Faribault and Pierre-Yves Châtillon, December 2002

"La fiducie comme véhicule de fonds communs de placement", Co-authored with Martin Cloutier, APFF, vol. 19, No 1, 1997


Québec Bar Association

Montreal Bar Association

Canadian Bar where he chaired the Québec Division's Communications and Information Committee

Chairman of the Board, Fondation Armand-Frappier, a charitable foundation dedicated to raise funds for scientific equipment and scholarships for the INRS – Institut Armand-Frappier, a Louis Pasteur Institute

Director and Secretary of the Studio de Musique Ancienne de Montréal, a vocal ensemble dedicated to Renaissance and Baroque music

Investment Funds Institute of Canada

Québec Investment Funds Council

Rankings and Awards

Ranked as one of the repeatedly recommended lawyers in Investment Funds & Asset Management by The Canadian Legal Lexpert Directory 2010

Recognized as one of Canada's best Mutual Funds Law lawyers in The Best Lawyers in Canada (2010-2011 editions)

Institute of Corporate Directors, Institute-certified Director (ICD.D), April 2008


BIOGRAPHY

1

Areas of Practice




Education

B Comm, Queen's University, 1981

LLB, University of Toronto, 1990

Year of Call

Ontario, 1992

Garth J. Foster Partner

Toronto

Direct Line: 416 868 3422 Facsimile: 416 364 7813 [email protected] www.fasken.com/garth-foster

Garth is extensively involved in the investment funds, registration and securities law areas, and hasexperience with segregated funds. He actively advises a number of public and private investment funds and has been involved in launching a number of structured products. Garth has created newfunds, including hedge funds, drafted trust, management, advisory, sub-advisory and distribution agreements, filed numerous applications for exemptive relief and prepared offering documents forboth public and private funds. He has also been involved in a number of mutual fund acquisitionsand reorganizations. In addition, Garth has registered, and provides ongoing compliance and registration advice, to various advisers and dealers. He also comments on policy initiatives in theinvestment funds, registration and securities law areas.


Manulife launches inaugural Canadian Real Estate Investment Funds offering with $190 million acquisition of commercial properties Counsel to the Manulife Canadian Real Estate Funds in the launch of its inaugural offering with purchase of $190 million portfolio of commercial properties from Manulife Financial

Scotiabank completes acquisition of DundeeWealth for $2.3 billion Counsel to DundeeWealth Inc. in its acquisition by Scotiabank

Horizons AlphaPro Fiera Tactical Bond Fund converts into ETF Advised AlphaPro Management Inc.

Horizons BetaPro launches Canada's first Volatility Tracking ETFs Advised BetaPro Management Inc.

Horizons AlphaPro launches Canada's first Floating Rate Bond ETF Advised AlphaPro Management Inc.

Horizons BetaPro launches Canada's lowest cost ETF Advised BetaPro Management Inc.

Horizons AlphaPro launches Canada's first Actively Managed Balanced ETF Advised AlphaPro

Horizons AlphaPro launches Canada's first Actively Managed Corporate Bond ETF Advised AlphaPro Management Inc.

Horizons AlphaPro launches S&P/TSX 60 Equal Weight Index ETF Advised AlphaPro Management Inc.

Horizons BetaPro launches North America's first leveraged Copper ETFs Advised BetaPro Management Inc.


BIOGRAPHY Garth J. Foster

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Horizons AlphaPro launches three new actively managed ETFs Advised AlphaPro Management Inc.

Horizons AlphaPro S&P/TSX 60 130/30(TM) ETF launched - The first of its kind in Canada Advised AlphaPro Management Inc.

Horizons AlphaPro Income Plus Fund closes $29.5 million IPO Advised AlphaPro Management Inc.

Horizons AlphaPro Seasonal Rotation ETF launched Advised AlphaPro Management Inc.

Horizons AlphaPro Gartman Fund completes conversion into ETF Advised AlphaPro Management Inc.

BetaPro Management launches 6 commodity-based Horizons BetaPro ETFs Advised BetaPro Management Inc.,

Horizons AlphaPro Gartman Fund closes $55 million IPO Advised AlphaPro Management Inc.

UK government becomes 58% majority stakeholder in Royal Bank of Scotland Advised The Royal Bank of Scotland Group plc

BetaPro Management launches 10 additional Horizons BetaPro ETFs Advised BetaPro Management Inc.

Foresters Securities (Canada) sells mutual fund business Advised Foresters Securities (Canada) Inc.

Fortis acquires ABN AMRO Asset Management Canada Advised Fortis Bank SA/NV

Promutuel Capital buys Triglobal Capital Management network Advised Promutuel Capital

BetaPro Management launches additional Horizons BetaPro ETFs Advised BetaPro Management

Ethical Funds and Northwest Mutual Funds in new national partnership with $5.5 billion assets under management Advised Desjardins Group.

Royal Bank of Scotland consortium acquires ABN Amro in largest financial services merger in history Advised Royal Bank of Scotland consortium on largest financial services merger in history

Horizons BetaPro ETFs listed on Toronto Stock Exchange Advised BetaPro Management Inc.

Barometer Capital Management buys Rockwater Asset Management Advised Barometer Capital Management Inc.

Perimeter Capital Management buys MoneyWare Advised Perimeter Capital Management Inc.

Centerfire Growth Fund merges with Lawrence Enterprise Fund Advised on the merger of Centerfire Growth Fund Inc., a labour sponsored investment fund, with Lawrence Enterprise Fund Inc., another labour sponsored investment fund, in March 2006.

BetaPro launches unique family of mutual funds Advised BetaPro Management Inc.



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Industrial Alliance acquires Co-operators Mutual Funds Advised The Co-operators Group Limited

Millennium BullionFund in the formation of the first RRSP qualified public Canadian investment fund Advised Millennium BullionFund

Presentations






Corporate Finance Market Brief - N1 31-103 Registration Implications for Corporate Finance, The Canadian Institute of Chartered Accountants, May 20, 2010







Understanding National Instrument 31-103 Registration Requirements, Roundtable discussion with the BCSC (British Columbia Securities Commission), April 24, 2008

Understanding National Instrument 31-103 Registration Requirements, Roundtable discussion with the AMF (Autorité des Marchés Financiers), April 18, 2008

Understanding National Instrument 31-103 Registration Requirements, Roundtable discussion with the OSC (Ontario Securities Commission), April 15, 2008

ICPM-Mutual Fund Manager Registration Reform, June 1, 2007

National Instrument 31-103 Registration Reform, May 1, 2007

Justifying the Use of Soft Dollars: What this means to the Mutual Fund Industry, Speaker, April 2007

Adapting Due Diligence Checklists as part of a Risk Management and Compliance Strategy, Co-Speaker, April 2007

Regulatory Registration Reforms and Compliance Issues, Chair and Speaker at panel discussion on Regulatory Registration Reforms and Compliance Issues, April 2006, April 2006

Publications

"Investment Products & Wealth Management Newsletter", February 2011


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"National Instrument 31-103: A New Registration Regime", Investment Products & Wealth Management Bulletin, September 2009

"National Instrument 31-103 Registration Requirements – Update", Investment Products & Wealth Management Bulletin, April 2009

"Canadian Securities Administrators Propose Revised Registration Regime for Dealers, Advisers and Fund Managers", Investment Funds Bulletin, March 2008

"Proposed National Instrument 81-106", Investment Funds Bulletin by Garth Foster, August 2004

"Update: National Registration Database", Securities and Mergers & Acquisitions Bulletin by Garth Foster and Mable Lam, April 2004


Former member of IFIC Dealer Issues Committee, IFIC Manager Issues Committee, IFIC Regulatory Steering Committee, IFIC Sales Practices Steering Committee, IFIC Sales Communications Steering Committee and IFIC Fund of Fund Working Group

Member, Canadian Bar Association

Member, International Bar Association

Rankings and Awards

Recognized by Best Lawyers in Canada 2011 as a leading practitioner in Mutual Funds Law

Listed as a highly recommended lawyer in the area of Investment Funds (Canada) by Practical Law Company in 2009

Community Involvement

Active member of Toronto Kiwanis Boys and Girls Clubs


BIOGRAPHY

1

Areas of Practice






Charities and Not-For-Profit

Education

LLB, McGill University, 1995

BCL, McGill University, 1995

BA (Hons), History and Political Science McGill University, 1991

Year of Call

Ontario, 1997

Languages

English

Virginia K. Schweitzer Partner

Ottawa

Direct Line: 613 236 3882 Facsimile: 613 230 6423 [email protected] www.fasken.com/virginia-schweitzer Virginia Schweitzer's practice includes corporate finance, mergers and acquisitions, securities,mining law and technology law. Virginia has been involved in public offerings, including IPOs, inCanada and the United States, and private placements for technology, biotechnology and mining clients. Her expertise also extends to mergers, takeovers and acquisitions on behalf of both publicand non-public companies. Virginia is also involved in advising corporations (profit and non-profit) on matters related to corporate governance.

She has acted for various public companies including World Heart Corporation, Ur-Energy Inc., Aura Silver Resources Inc., Enablence Technologies Inc., Corel Corporation, Learnsoft Corporation andPositron Fiber Systems Corporation. Recent public transactions have included: US$30 million crossborder private placement; Cdn$12 million public equity offering; and several acquisitions ofCanadian and US private and public companies.


Enablence Technologies completes $21.2 million public offering Advised Enablence Technologies Inc.

Aura Silver closes private placement financing Advised Aura Silver Resources Inc.

Enablence Technologies completes $29 million public offering Advised Enablence Technologies Inc.

Presentations

Ottawa Fasken Martineau Symposium (1st Edition), Fasken Martineau Institute, May 11, 2011

M&A Primer, Global Mining Group Seminar, March 1, 2011

Publications

"TSXV Policies on Private Placements", Securities and Mergers & Acquisitions Bulletin, March 2, 2011


Canadian Bar Association

County of Carleton Law Association

Licensing Executive Society

Community Involvement

Sessional lecturer on Securities Regulation at the Faculty of Law at the University of Ottawa

BIOGRAPHY Virginia K. Schweitzer

2


Actively participates in the Girl Guides of Canada – Guides du Canada

Member of the National Council of Women


BIOGRAPHY

1

Areas of Practice

Mergers & Acquisitions




Joint Ventures

Private Equity


Education

LL.B, Dalhousie University, 1994

B Comm, University of British Columbia, 1991

Year of Call

Ontario, 1996

Alberta, 1997

New York, 2002

Lloyd Symons Partner

Calgary

Direct Line: 403 261 6161 Facsimile: 403 261 5351 [email protected] www.fasken.com/Lloyd-Symons Lloyd Symons is a partner in the Business Law group of the Calgary office. He previously practisedin the corporate finance group at a prominent New York law firm.

Mr. Symons advises private and public companies, investment funds and underwriters with respectto structuring and securities law implications on domestic and international private placements,public offerings, corporate reorganizations, mergers and acquisitions, stock exchange listings andother corporate, commercial and securities matters. He has significant experience in the oil and gas sector, having managed numerous commercial transactions and acquisitions involving energycompanies.

Mr. Symons is a former chairman of the Calgary chapter of the Securities Law Executive of theCanadian Bar Association and was an Advisory Committee member of the Alberta Securities Commission.


Essential Energy Services completes acquisition of Technicoil Counsel to Essential Energy Services Ltd. in its strategic combination with Technicoil Corporation

Presentations

Mutual-Funds-Point-of-Sale-Regime, Investment Products & Wealth Management Group Seminar, November 26, 2010

Publications

"View From the West: The Alberta Court of Appeal Holds the Proposed Canadian Securities Act to be Unconstitutional", Canadian Securities Law News No.207, CCH Canadian Limited, April 2011

"View from the West: The Alberta Court of Appeal Holds the Proposed Canadian Securities Act to be Unconstitutional", Securities and Mergers & Acquisitions Bulletin, March 30, 2011


Law Society of Alberta

New York State Bar Association

American Bar Association

Canadian Bar Association

The Law Society of Upper Canada (Ontario)


BIOGRAPHY

1

Areas of Practice

Emerging Global Business



Life Sciences



Education

LL.B., Laval University, 1992

Year of Call

Québec, 1993

Languages

French

English

Marie Carole Tétreault Partner

Québec City

Direct Line: 418 640 2022 Facsimile: 418 647 2455 [email protected] www.fasken.com/Marie-Carole-Tetreault Marie Carole Tétreault practices primarily in the following sectors of activity: life sciences, corporate mergers and acquisitions, corporate/commercial law and corporate governance.

She is also a trademark agent.

She has supplemented her law training with studies in intellectual property and corporate financingand taxation.

Marie Carole focuses mainly on business acquisition and sale transactions through the purchase orsale of assets or shares, and private corporate financing. More specifically, she represents hightechnology companies, advising them on a number of aspects of their activities, such as negotiating and drafting partnership agreements, subscription contracts, shareholder agreements, contracts fortechnology transfer, research and experimental development, distribution agreements, trademarkregistration applications, corporate governance manuals and more.

She also acts as legal counsel for investors involved in mortgage financing, verifying and preparingreports on titles, negotiating and drafting mortgage loan contracts and ancillary agreements andpreparing the necessary legal opinions.

Her extensive experience in corporate law led her to act as corporate secretary for companies thatoperate in biotechnology and fibre optics, to assist them in preparing and holding meetings of theirboards of directors and committees.

To better advise her clients on the rules of corporate governance and the duties and responsibilitiesof directors, in 2006 she completed training at the Collège des administrateurs de sociétés andobtained university certification in corporate governance from Laval University's faculty ofadministrative sciences.

Ms. Tétreault is a director of the Société de l'Assurance Automobile du Québec, a governmentcorporation; she chairs its corporate governance and ethics committee and acts as member of itshuman resources and customer services committee.


Industrial Alliance acquires DundeeWealth's Quebec-based mutual fund dealer and insurance distribution operations Advised Industrial Alliance Insurance and Financial Services Inc.

Industrial Alliance acquires Money Concepts and AEGON Dealer Services Canada Advised Industrial Alliance Insurance and Financial Services Inc.

Industrial Alliance acquires L'Excellence Life Insurance Advised Industrial Alliance Insurance and Financial Services Inc.

Asmacure closes US$9 million Series A financing Advised Asmacure Ltée

BIOGRAPHY Marie Carole Tétreault

2


RedPrairie Corporation acquires GEOCOMtms Advised RedPrairie Corporation

Exceldor acquires Grenville Poultry Advised Exceldor

Presentations

Seminar on clinical trials, "Managing and protecting personal information gathered in the course of clinical trials," Pôle Québec Chaudière-Appalaches, November 2006

Awareness workshop on technology transfer, "Negotiating licenses", February 2004

Publications

"Amendment of your articles of incorporation: the date is approaching!", Corporate Law Bulletin Special Collaboration (D. Bertrand, P. Gagnon, M.-C. Tétrault, J.-F. Hébert), May 2007


Member, Québec Bar

Member, Canadian Bar Association

Ms. Tétreault is a director of the Société de l'Assurance Automobile du Québec, a government corporation; she chairs its corporate governance and ethics committee and acts as member of its human resources and customer services committee.

Sophie Jean joined the Autorité des marchés financiers in January 2000. Formerly a partner at Bélanger Sauvé, a Montréal law firm, her practice was mainly in securities and financing. Since joining the Autorité, she has been a policy adviser exclusively in the field of registrant regulation. To this day, she has participated in almost all regulatory projects which relate to dealer and adviser registration. Since 2005, she has been main counsel at the Autorité for the registration reform project. Since 2009, she chairs the Canadian Securities Administrators’ Registrant Regulation Committee. She attended McGill University (B.C.L, and LL.B).

SOPHIE JEAN s'est jointe à l'Autorité des marchés financiers en janvier 2000. Auparavant associée chez Bélanger Sauvé, cabinet d'avocats à Montréal, sa pratique était alors principalement en valeurs mobilières et en financement. Depuis son arrivée à l’Autorité, elle est conseillère en réglementation au sein de la Surintendance de la distribution et œuvre exclusivement dans le domaine de la réglementation des courtiers, conseillers en valeurs et des représentants. À ce jour, elle a travaillé sur la quasi-totalité des projets réglementaires relatifs à l'inscription. Depuis 2005, elle est conseillère principale à l’Autorité pour le projet de réforme de l'inscription. Depuis 2009, elle préside le Comité de réglementation des personnes inscrites des Autorités canadiennes en valeurs mobilières. Elle est diplômée en droit de l'Université McGill (B.C.L, et LL.B).

Chris Jepson Senior Legal Counsel Ontario Securities Commission Compliance and Registrant Regulation Tel: 416 593 2379 Email: [email protected] Chris Jepson is a Senior Legal Counsel in the OSC’s Compliance and Registrant Regulation Branch. He was the Chair of the CSA ’s Registration Reform Working Group, which developed National Instrument 31-103 Registration Requirements and Exemptions. Before joining the OSC, Chris was a senior counsel in-house at a large financial services group.

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