Thank you very much.
I wanted to come here today to encourage the committee and Industry Canada to dig a little deeper with the CBCA and consider some further amendments. A lot of very good work was done in 2001 to bring the CBCA up to speed at that time with developments that had taken place provincially and territorially in the country, but some issues were left behind in 2001 for another time, and there was to be a five-year review.
Since that time there's been quite a bit of development at the provincial level in Canada, and I'll go through some of that and explain why it is important for the CBCA. What I'm really here to do is not to advocate for specific reforms, but more to advocate that these reforms be looked at and that there be a process developed that would include a consultation paper, some public consultation, submissions, and a serious look at keeping the CBCA competitive and cutting edge, as it should be.
Since 2001, as I mentioned, there have been some developments. They include, just earlier this year, in June, the Canada Not-for-Profit Corporations Act, which contains some differences between it and the CBCA, which are improvements over the CBCA, and highlight some of the deficiencies in the CBCA. So there's some need for harmonization with its own federal statute.
More recently, there has been the Quebec Business Corporations Act, which has received at least first reading on October 7 in the Quebec legislature, which is also built on the same statute but which contains further improvements, particularly for small business, and I think a number of innovations. I'll touch on just a couple of those.
In 2007 the Ontario Business Corporations Act was amended in some significant respects, and in particular to coordinate with the Securities Transfer Act that was brought into Ontario at that time. And a lot of other provinces have done the same.
Going back a little bit further, in 2005 Alberta, in their Business Corporations Act, brought in some amendments, some of which have been picked up in the Quebec legislation, which also should be looked at. And going back even further, in 2002 British Columbia brought in a new statute, which contained a lot of other innovations.
So since 2001 a lot of the leading provinces in the country—and I would also include Nova Scotia in that—have amended their corporate laws to not only catch up to the CBCA, but to surpass it in some respects. I'll go into some specifics, but the most compelling reason to take a look at it is the work that's been taking place in Quebec, where Quebec has, for the first time since 1981, amended their corporate law, or are proposing to amend their corporate law, and include a CBCA-like statute. This is a very positive development for the country, but I think, again, the statute contains some improvements.
Just to give you some flavour of what they've done in Quebec, if you have a one-person corporation and a unanimous shareholder declaration, you don't need to have bylaws. For annual meetings, you don't have to pay your lawyer to draft up the same forms every year. You don't have to have directors. So they've stripped away some of the formalities that are just hardwired into the CBCA, and other statutes that are built off the CBCA, and made things a little bit simpler for small business, which really don't need these formalities on an annual basis. Those are just some examples.
It's quite logical for a unanimous shareholder agreement that strips away all board powers. What's the purpose for having a board of directors of that particular corporation? So they've done some rather innovative things in Quebec that ought to be looked at, that's all I'm saying.
I divided the types of changes you could be looking at into policy issues, which I'll go into in some detail, and then some more technical issues, which I've listed on the second side of the handout. On the first page are the five policy issues. The first one has to do with the securities transfer laws and the advent of the securities transfer acts in the provinces; we talked about this in the spring of this year with respect to the not-for-profit corporate law.
In response to a request for a submission put out by Industry Canada and the Department of Finance in 2007, wanting input from the Canadian Bar Association and other stakeholders as to how federal security transfer laws should be updated and modernized, we responded in a 35-page brief. I believe that has been circulated or will be handed out.
At that time we noted that this would be a good thing for the feds to withdraw from, that it was really provincial law, modernized, comprehensive, and it was not fitting subject matter for corporate statutes any longer. That submission is out there. We never really got a response to that, but I think it's something that ought to be looked at, not only for the CBCA, but all the other cognate federal statutes--the financial services statutes in the Canada Cooperatives Act.
This would include some flexibility around the issuer's jurisdiction definition that corporate statutes can provide for--that's an option--and dematerialization, a corporation being able to issue its securities, its shares, without having a security certificate. Currently the CBCA doesn't afford that as an option. But Ontario does, B.C. does, and now Quebec will. So there is another instance when we don't have to go through the formalities of having share certificates if investors don't want them. So that's one area.
The second area is trust indentures. This is part 8 of the act. The development there is that the Uniform Law Conference of Canada is just about to embark on a project to study trust indentures. There is a significant amount of lack of uniformity in the country, so this is an area where uniform laws would be helpful.
The problem with the federal law--if I can just give you one example of why the federal law doesn't work the way it is--is that a federal issuer is regulated in the CBCA. But there is an exemption if the trust indenture is subject to the laws of a jurisdiction that provides comparable protection. That exists in Ontario and British Columbia, for example, which have similar laws, and it also exists in the United States.
So if the CBCA issuer is subject to the Securities and Exchange Commission, an exemption is available. But if they're issuing in England, where they don't have a similar law, then you have this anomaly where the CBCA standard is applicable to this trust indenture where it's subject to the laws of England, whereas England doesn't require any similar provisions. So Canadian law is protecting investors in a foreign jurisdiction. It doesn't seem very logical.
The third issue is board residency. This is something that was left behind in 2001. It was reduced from 51% down to 25% in 2001. But other jurisdictions.... British Columbia got rid of their requirement, and in Canada now, of the 12 jurisdictions, I believe seven of them do not have a residency requirement. So that includes all of the maritime provinces except Newfoundland, Quebec does not and has not, and British Columbia got rid of theirs. And none of the territories have this residency requirement. So we have quite a patchwork of residency requirements. I think it's time to ask ourselves why we have such a rule, what it's doing, and if it serves any purpose.
The fourth issue deals with insider trading and tipping. Currently the CBCA provides for insider trading and tipping liability, both for publicly traded corporations or distributing corporations, and non-distributing corporations, private companies. It's really not too relevant in the case of private companies, I would submit, but it is very important in the case of publicly traded corporations. The flaw that the CBCA has adopted is that they require a matching between the buyer and the seller. So if an insider instructs his or her broker to dispose of securities in the market, there is no civil liability unless there is a person opposite that transaction who can be found.
You may wonder why that's a problem. Well, the way the securities markets work today is that it's the indirect holding system, so people trade into the market. They don't know who their buyer is going to be. There is going to be a buyer out there somewhere but the broker will be transacting a lot of transactions in the day. Everybody wants to buy and they'll match it against everybody who is wanting to sell and it may not be possible to then match buyer and seller.
There are models to avoid this kind of unnecessary complication. I would analogize it to people throwing dirty water in the lake, and the person who takes the dirty water out of the lake needs to be able to identify who put that water in there. It's very difficult, as a matter of proof, and unnecessary.
The final issue is the modified proportionate liability regime. Again, this is an issue that's being studied, this time by the Law Commission of Ontario. Professor Poonam Puri at Osgoode Hall is doing a study of not only the federal provision but also the more recent provisions that have been adopted at provincial levels through the securities act dealing with the liability of secondary market disclosure. The model is not the CBCA model, so again we're seeing a patchwork of proportionate liability regimes. There has been no case law at all under the federal provision. Unfortunately, or fortunately, it seems the federal law has very few options in terms of regulating liability for auditors, because constitutionally it's primarily a matter of property and civil rights in the provinces and it's regulated through negligence acts. Federally, you're limited by the fact that you have to have a federal corporation, so it is only regulating the audited financial statements issued by CBCA corporations and Canada cooperatives. It is a very limited scope provision and I think it's time to look at that again.
As I said, there were a number of other technical issues that I would also identify. I don't propose to go through all of those.
Thank you for your time.