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SECURITIES ADMINISTRATION
ACT
A PROPOSED LEGISLATIVE
MODEL FOR ALBERTA
CONSULTATION DRAFT
December 16, 2003
SECURITIES ADMINISTRATION
ACT
PART 1: DEFINITIONS
Definitions
1.1 Words and terms defined in
section 1.2(1) [Definitions] of the Uniform
Securities Act have the same meaning in this Act.
PART 2: SECURITIES REGULATORY
AUTHORITY
Division 1
Composition and Mandate
Securities regulatory authority continued
2.1
(1) The Alberta Securities
Commission is continued as a corporation.
(2) The Alberta Securities
Commission has, for the purposes of carrying out its
powers, functions and duties under securities laws,
the capacity and the rights, powers and privileges
of a natural person.
Composition and appointment
2.2
(1) The securities regulatory
authority consists of the members appointed by the
Lieutenant Governor in Council.
(2) The Lieutenant Governor
in Council must designate one member of the securities
regulatory authority as chair and may designate one
or more other members as vice-chair.
(3) The chair is the chief
executive officer of the securities regulatory authority.
(4) If the office of the chair
is vacant, or if the chair is absent or unable to
act, a vice-chair or, if no vice-chair is designated,
a person appointed by the Lieutenant Governor in Council
as member and acting chair, must serve as chair.
(5) The remuneration and expenses
payable to the chair, vice-chairs and other members
of the securities regulatory authority must be set
by the securities regulatory authority.
Mandate
2.3 The securities regulatory
authority is responsible for the administration of securities
laws.
Quorum
2.4
(1) When making, amending or
repealing rules, a quorum of the securities regulatory
authority is at least one half of its members, unless
subsection (3) applies.
(2) For all other purposes,
the quorum of the securities regulatory authority
is at least two members, unless the bylaws provide
otherwise.
(3) A quorum of at least two
members of the securities regulatory authority may
make non-substantive and non-controversial changes
to rules that
(a) have been made by the securities
regulatory authority, but
(b) have not been published in accordance
with regulations made by the Lieutenant Governor
in Council under section 7.1 [Lieutenant Governor
in Council regulations].
(4) This section does not affect
the ability of the securities regulatory authority
to delegate a power, function or duty to a member
of the authority under section 2.10 [Securities
regulatory authority delegation to a member].
Crown agent
2.5
(1) The securities regulatory
authority is an agent of the Crown.
(2) An action or other legal
proceeding in respect of a right or obligation acquired
or incurred by the securities regulatory authority
on behalf of the Crown, whether in the name of the
securities regulatory authority or in the name of
the Crown, may be brought by or taken against the
securities regulatory authority in the name of the
securities regulatory authority in any court that
would have jurisdiction if the securities regulatory
authority were not an agent of the Crown.
Regulator to be appointed
2.6
(1) The securities regulatory
authority must authorize one or more persons to act
as regulator.
(2) The regulator may
(a) exercise the powers and functions
and perform the duties vested in or imposed on the
regulator under securities laws, and
(b) exercise the powers and functions
and perform the duties that are delegated to the
regulator by the securities regulatory authority.
Bylaws
2.7
(1) The securities regulatory
authority may make by-laws governing its administration
and management.
(2) The Regulations Act
does not apply to the bylaws.
Financial matters
2.8
(1) All money from any source
that is received by or payable to the securities regulatory
authority, including any income earned on that money,
belongs to the securities regulatory authority.
(2) Without limiting its natural
person powers, the securities regulatory authority
may
(a) borrow or invest money for the
purposes of its operations;
(b) participate as a depositor in
the Consolidated Cash Investment Trust Fund established
under the Financial Administration Act.
(3) Subject to subsection (4),
the securities regulatory authority may make expenditures
to
(a) administer securities laws,
and
(b) operate the securities regulatory
authority.
(4) Administrative penalties
received by the securities regulatory authority may
be expended only for the purposes of educating investors
and promoting or otherwise enhancing knowledge and
information of persons about the operation of the
securities and financial industries and the marketplace.
Annual report
2.9
(1) After the end of each fiscal
year, the securities regulatory authority must send
to the Minister determined under section 16 of the
Government Organization Act as the Minister
responsible for this Act an annual report for that
fiscal year consisting of
(a) a summary of its operations
for the fiscal year,
(b) audited financial statements,
and
(c) any other information requested
by the Minister.
(2) The Minister must table
the report in the Legislative Assembly as soon as
practicable after receiving it.
Division 2
Internal Delegation
Securities regulatory authority delegation
to a member
2.10
(1) The securities regulatory
authority may delegate to one of its members any of
the powers, functions or duties of the securities
regulatory authority except:
(a) the power to delegate a power,
function or duty, and
(b) the power to make, repeal or
amend a rule.
(2) A decision by a member
acting under delegated authority
(a) has the same force and effect
as if the decision had been made by the securities
regulatory authority, and
(b) is not subject to review by
the securities regulatory authority.
Securities regulatory authority delegation
to regulator and other persons
2.11
(1) The securities regulatory
authority may delegate to the regulator or to an officer,
employee, appointee or agent of the securities regulatory
authority any of the powers, functions or duties of
the securities regulatory authority except:
(a) the power to delegate a power,
function or duty, and
(b) the power to make, amend or
repeal a rule.
(2) A person to whom a power,
function or duty is delegated by the securities regulatory
authority may, with the approval of the securities
regulatory authority, sub-delegate it.
(3) A decision of a delegate
of the regulator is a decision of the regulator unless
otherwise provided by securities laws.
(4) A delegation may, without
prior notice, be suspended, revoked or varied by the
securities regulatory authority or, in the case of
a sub-delegation, by the securities regulatory authority
or by the person who sub-delegated the power, function
or duty.
(5) The securities regulatory
authority and a person who sub-delegates a power,
function or duty may continue to exercise any power,
function or duty delegated or sub-delegated.
PART 3: PROCESS AND
PROCEDURES
Division 1
Service, Admissibility
and Non-compellability
Accepting service
3.1 Service of a record on the
securities regulatory authority or SRA delegate is properly
effected by serving the record on a person authorized
by the securities regulatory authority to accept service
on behalf of the securities regulatory authority or
SRA delegate.
Sending documents
3.2 Unless otherwise provided
by securities laws, a record required to be sent, communicated,
delivered or served under securities laws may be
(a) personally delivered to the person
that is to receive it,
(b) sent by prepaid post to the person
that is to receive it,
(c) sent by electronic means, or
(d) sent as prescribed.
Admissibility of certified statements
3.3 A statement about
(a) the registration or non-registration
of a person,
(b) the filing or non-filing of a
record,
(c) any other matter, person or record,
or
the date the facts upon which any proceeding
is based first came to the knowledge of the securities
regulatory authority, purporting to be certified by
a member of the securities regulatory authority or regulator
is, without proof of the office or signature of the
person certifying, admissible in evidence in any action,
proceeding or prosecution under securities laws.
Evidence from bank officials
3.4 Despite section 41(5) of
the Alberta Evidence Act, the securities regulatory
authority may by order summon a bank or an officer of
a bank, in any investigation or proceeding under securities
laws
(a) to produce records, property or
things, the contents of which can be proved under
section 41 of the Alberta Evidence Act, or
(b) to appear as a witness to prove
the matters, transaction and accounts contained in
the records, property or things.
Non-compellable witnesses and evidence
3.5
(1) A member or former member
of the securities regulatory authority
(a) is not a compellable witness
before a court,
(b) may not be compelled to produce
or give evidence in any proceeding before a court,
and
(c) must not give evidence or produce
evidence before a court without the consent of the
securities regulatory authority,
with respect to information, records,
property or things obtained or acquired by that person
in the exercise of their powers, functions or duties
as a member of the securities regulatory authority.
(2) An individual who is or
was an officer, employee, appointee or agent of the
securities regulatory authority or the regulator,
in any proceeding in a court to which the securities
regulatory authority is not a party,
(a) is not a compellable witness
before the court,
(b) may not be compelled to produce
or give evidence in any proceeding before the court,
and
(c) must not give evidence or produce
evidence before the court without the consent of
the chair or a vice chair of the securities regulatory
authority,
with respect to information, records,
property or things obtained or acquired by that person
in the exercise of their powers, functions or duties.
(3) Neither the securities
regulatory authority nor anyone on its behalf
(a) is a compellable witness before
a court, or
(b) may be compelled to produce
or give evidence in any proceeding before a court,
with respect to information, records,
property or things obtained or acquired by a member,
officer, employee, appointee, agent or regulator in
the performance of their powers, functions or duties
under securities laws.
(4) In this section court
has the same meaning that it has in section 1(b) of
the Alberta Evidence Act.
Protection for witnesses
3.6
(1) No person summoned to give
evidence or to produce a record, property or thing
under Part 4 [Investigations] or Part 6 [Reviews,
Decisions, Appeals and Administrative Processes]
is excused from doing so on the ground that the evidence,
record, property or thing might:
(a) tend to incriminate the person;
(b) subject the person to punishment
under securities laws or tend to establish that
person's liability
(i) in a civil proceeding at the
instance of the Crown or any other person, or
(ii) to prosecution under any
enactment, an enactment of another Canadian jurisdiction
or an enactment of Canada.
(2) No evidence given or record
produced by a witness in response to a summons may
be used to incriminate that witness in a prosecution
for an offence under securities laws or any other
enactment, except in a prosecution for or proceeding
in respect of perjury or the giving of contradictory
evidence.
Verification
3.7 The securities regulatory
authority may require any information, record, property
or thing produced, provided to or obtained by it to
be verified by affidavit or other means.
Division 2
Treatment of Information
Collection, use and disclosure of personal
information
3.8 A recognized entity may,
(a) with respect to any personal information
referred to in, dealt with in or governed under sections
33(a), 34(1)(a)(ii) or 40(1)(e) of the Freedom
of Information and Protection of Privacy Act,
collect that information whether directly from the
individual or by some other method, and disclose that
information for the purpose of carrying out any power,
function or duty under securities laws, or
(b) with respect to any personal information
referred to, dealt with or governed under sections
14, 17 or 20 of the Personal Information Protection
Act, collect that information, whether directly
from the individual, through a registrant or participant,
or by some other method, and use and disclose that
information for the purpose of
(i) an investigation or proceeding
under securities laws, or suppressing fraud, market
manipulation or unfair trading practices, or
(ii) investigating a contravention
of securities laws or an investigation relating
to the integrity of securities trading on exchanges,
quotation and trade reporting systems or alternative
trading systems.
Information sharing arrangements
3.9
(1) The securities regulatory
authority or SRA delegate may provide information
to and receive information from:
(a) an extra-provincial SRA or its
delegate,
(b) an entity performing, in a foreign
jurisdiction, any power, function or duty similar
to the securities regulatory authority,
(c) a financial regulatory authority,
an exchange, a self-regulatory organization, a recognized
entity, a professional regulatory body or organization,
a law enforcement agency, a quotation and trade
reporting system, a clearing agency, or a government
or a governmental authority in another Canadian
jurisdiction or in a foreign jurisdiction, and
(d) any person or entity that provides
services to the securities regulatory authority.
(2) The securities regulatory
authority may enter into an arrangement or agreement
for the purpose of providing, receiving and managing
the information.
(3) Information received by
the securities regulatory authority under this section
is confidential and must not be disclosed except when
authorized by the securities regulatory authority.
(4) This section prevails despite
the Freedom of Information and Access to Information
Act and any information received by the securities
regulatory authority under this section is exempt
from disclosure under that Act.
Confidentiality and public disclosure
of records
3.10 Records in the possession
of the securities regulatory authority must be held
in confidence or disclosed to the public in accordance
with the rules.
Public inspection of records
3.11 Records filed under securities
laws must be made available for public inspection during
normal business hours, unless the securities regulatory
authority considers that
(a) the record or class of record
discloses intimate financial, personal or other information,
and
(b) the desirability of not disclosing
the information, in the interests of the person affected,
outweighs the desirability of adhering to the principle
of public disclosure,
in which case the record, or part of
it, is to be held in confidence.
Division 3
Inquiries
Inquiry by securities regulatory authority
3.12
(1) The securities regulatory
authority may inquire into and hold hearings with
respect to any matter related to securities laws.
(2) The securities regulatory
authority may engage a person to provide services
and to advise, or to inquire into and report back
on matters referred to that person for the purposes
of subsection (1) or otherwise.
(3) The securities regulatory
authority
(a) may send records to be examined
by persons engaged by it, and
(b) may
(i) summon and enforce the attendance
of witnesses before persons engaged by it,
(ii) compel witnesses to give
evidence under oath or otherwise before persons
engaged by it, and
(iii) compel witnesses to produce
records, property and things to persons engaged
by it.
(4) The failure or refusal
of a person summoned to attend, answer questions,
or produce records, property or things that are in
the person's custody or possession, or under their
direct or indirect control, makes that person, on
application to the court by the securities regulatory
authority, liable to be committed for contempt by
the court.
(5) A person engaged under
subsection (2) may take evidence under oath and may
administer oaths for the purpose of taking evidence.
(6) The Alberta Rules of
Court with respect to compelling the attendance
of witnesses, including the provisions relating to
the payment of conduct money, apply to proceedings
conducted by a person engaged under subsection (2).
PART 4: INVESTIGATIONS
Order for production
4.1
(1) The securities regulatory
authority may order a market participant or a former
market participant specified or described in the order
(a) to provide information;
(b) to produce records, property
or things specified or described in the order that
are or may be in the market participant's custody,
possession or direct or indirect control.
(2) The order may
(a) specify the location at which
and the person to whom the information or the records,
property or things is to be produced, and
(b) prescribe the time within which
or the intervals in respect of which the information,
records, property or things must be produced.
Confidentiality of production orders
4.2 A production order under
section 4.1 [Order for production] is confidential
and must not be disclosed except to
(a) the market participant to whom
it is directed,
(b) the market participant's counsel,
(c) any other persons to whom disclosure
is consented to by the securities regulatory authority,
and
(d) other persons to the extent reasonably
necessary to comply with the order.
Investigation order
4.3
(1) The securities regulatory
authority may issue an investigation order appointing
a person to make any investigation it considers necessary
(a) for the administration of securities
laws;
(b) for the regulation of the capital
markets in Alberta;
(c) for the administration of extra-provincial
securities laws or securities laws of a foreign
jurisdiction;
(d) for the regulation of capital
markets in another Canadian jurisdiction or in a
foreign jurisdiction.
(2) An investigation order
must describe the matter to be investigated.
Scope of investigation
4.4
(1) A person appointed to make
an investigation under an investigation order may
investigate and inquire into
(a) the affairs of a person in respect
of which the investigation is conducted, including,
(i) trades, communications, negotiations,
transactions, investigations, loans, borrowings
or payments to, by, on behalf of, or in relation
to or in connection with the person, and
(ii) records kept and property
and things owned, acquired or alienated in whole
or in part by the person or by any other person
acting on behalf of or as agent for the person;
(b) the assets at any time held,
the liabilities, debts, undertakings and obligations
at any time existing, the financial or other conditions
at any time prevailing in or in relation to or in
connection with the person;
(c) any relationship that may at
any time exist or have existed between the person
and any other person by reason of investments, commissions
promised, secured or paid, interests held or acquired,
the loaning or borrowing of money, securities or
other property, the transfer, negotiation or holding
of securities, interlocking directorates, common
control, undue influence or control or any other
relationship.
(2) The person appointed to
make the investigation under an investigation order
may examine any records, property or things that
(a) are in the custody or possession
of or under the direct or indirect control of the
person whose affairs are subject to investigation,
or
(b) are in the custody or possession
or under the direct or indirect control of any other
person.
Investigation powers
4.5
(1) A person appointed to make
an investigation under an investigation order has
the same power as is vested in the court for the trial
of civil actions:
(a) to summon and enforce the attendance
of witnesses,
(b) to compel witnesses to give
evidence under oath or otherwise, and
(c) to compel witnesses to produce
records, property and things.
(2) The failure or refusal
of a person summoned to attend, answer questions,
or produce records, property or things that are in
the person's custody or possession, or under their
direct or indirect control, makes that person, on
application to the court by the securities regulatory
authority, liable to be committed for contempt by
the court.
(3) No person, without lawful
excuse, may fail to comply with a summons issued under
subsection (1).
(4) A person giving evidence
to a person appointed to make an investigation under
an investigation order may be represented by counsel.
Right of entry and examination
4.6
(1) A person appointed to make
an investigation under an investigation order may,
with respect to the matter that is the subject of
the investigation,
(a) enter the business premises
of any person during business hours;
(b) examine any records and make
copies of them;
(c) examine the property or things
used in the business of the person;
(d) make inquiries of the person
who is the subject of the investigation, or persons
employed or engaged by, or persons that have entered
into an agency relationship with, that person;
(e) require information to be provided
about the person's business and conduct;
(f) require the person to produce
any record.
(2) In exercising the power
to make copies of records, the person conducting the
investigation may
(a) carry out the copying at the
business premises of the person who is the subject
of the investigation, or
(b) on giving an appropriate receipt,
remove records for the purpose of copying them at
other premises specified in the receipt.
(3) Records removed for copying
must be promptly returned to the person from whom
they were received.
Court application for entry and search
order
4.7
(1) A person appointed to make
an investigation under an investigation order may
apply to a judge of the court, in the absence of the
public and without notice, for an order authorizing
the person or persons named in the order
(a) to enter and search any building,
receptacle or place, other than a portion of a building
or place used exclusively as a private residence,
and
(b) to seize any record, property
or thing described in the authorization that is
found in the building, receptacle or place.
(2) On production of the court
order, the person named or described in it may enter
the building, receptacle or place specified in the
order, and may search for and seize anything specified
in the order.
Access to and return of material seized
or obtained
4.8 Subject to section 4.6(3)
[Right of entry and examination], record, property
or thing seized, provided or obtained under this Part
must
(a) be made available for inspection
and copying by the person from whom it was obtained,
if practicable, and
(b) be returned to the person from
whom it was seized or obtained when
(i) retention is no longer necessary
for the purposes of an investigation, examination,
proceeding or prosecution under securities laws,
or
(ii) the securities regulatory authority
so orders.
Confidentiality of investigation and
disclosure of information
4.9
(1) No person may disclose,
at any time,
(a) an order referred to in section
4.3 [Investigation order], anything acquired,
and any information or evidence provided, obtained,
collected, disclosed or shared, under the order,
or
(b) any information obtained or
records, property or things voluntarily provided
or obtained in the course of an investigation under
this Part,
except to a person's counsel or in
accordance with subsection (2) or (3).
(2) An investigation order
and everything acquired, and any information or evidence
provided, obtained, collected, disclosed or shared
under the order, must not be disclosed unless disclosure
of the information
(a) is authorized by the securities
regulatory authority, if it considers the disclosure
to be in the public interest,
(b) is necessary for the administration
of securities laws, extra-provincial securities
laws or securities laws of a foreign jurisdiction,
or
(c) is necessary for the regulation
of the capital markets of another Canadian jurisdiction
or a foreign jurisdiction.
(3) A person appointed under
an investigation order to make an investigation may,
without notice to any person and without an order
of the securities regulatory authority, disclose the
order and anything acquired and all or any part of
the information or evidence provided, obtained, collected,
disclosed or shared through the investigation
(a) for the purpose of conducting
the investigation,
(b) in connection with a proceeding
commenced or proposed to be commenced by the securities
regulatory authority under securities laws,
(c) for the purpose of examining
a witness,
(d) for the administration of securities
laws, extra-provincial securities laws or securities
laws of a foreign jurisdiction, or
(e) for the purpose of the regulation
of the capital markets of another Canadian jurisdiction
or a foreign jurisdiction.
PART 5: RECEIVERS, RECEIVER-MANAGERS,
TRUSTEES AND LIQUIDATORS
Division 1
Appointment Criteria
Appointment
5.1
(1) The securities regulatory
authority may apply to a judge of the court for the
appointment of a receiver, receiver-manager, trustee
or liquidator of all or any part of the property and
affairs of a person.
(2) On application, the court
may appoint a receiver, receiver-manager, trustee
or liquidator if the court is satisfied that it is
(a) in the best interests of the
person's creditors,
(b) in the best interests of other
persons whose property is in the possession or under
the control of the person in respect of whom the
application is made,
(c) in the best interests of security
holders, subscribers to or clients of the person
in respect of whom the application is made, or
(d) appropriate for the administration
of securities laws.
Division 2
Authority of Court Appointees
Application of Division 2
5.2 This Division applies to
a person appointed under section 5.1 [Appointment]
or section 2.11 [Appointment to manage affairs]
of the Uniform Securities Act, unless another
enactment governs the matters described in this Division,
in which case the other enactment prevails to the extent
of any inconsistency.
Authority of appointees
5.3 A receiver, receiver-manager,
trustee or liquidator appointed by the court under section
5.1 [Appointment] or under section 2.11 [Appointment
to manage affairs]of the Uniform Securities Act
(a) has all necessary authority to
carry out the powers, functions and duties of the
appointment in accordance with the court order and
this Part;
(b) is appointed with respect to the
person, property and affairs of the person named in
the court order, whether the property is held in trust,
owned or held in some other capacity, unless the order
provides otherwise;
(c) must comply with the terms and
conditions of the court order.
Authority of receiver
5.4
(1) A receiver appointed under
securities laws may, subject to the rights of secured
creditors,
(a) receive income from the property
and affairs of the person named in the order and
pay liabilities in respect of the property and affairs,
and
(b) realize the security of the
person on whose behalf the receiver is appointed.
(2) When an order is made appointing
a receiver, the person in respect of whom the order
is made ceases to have authority and may not exercise
any powers in respect of the income from the property
or affairs for which the receiver is appointed, except
as directed by the court or the receiver.
Authority of receiver-manager
5.5
(1) A receiver-manager appointed
under securities laws may take control of the property
and administer the affairs of the person in respect
of whom the court order is made and
(a) with respect to an individual,
has all the authority of the individual to administer
the property and manage the individual's affairs,
(b) with respect to a corporation,
has all the authority of the shareholders and directors
of the corporation, and
(c) has any other authority prescribed
in the order appointing the receiver-manager.
(2) When an order is made appointing
a receiver-manager of the property or affairs of a
person
(a) in the case of an individual,
the individual has no authority to and may not exercise
any powers in respect of the individual's property
and affairs for which the order is made, and
(b) in the case of a corporation,
the shareholders and the directors of the corporation
have no authority to and may not exercise any powers
in respect of the corporation,
except as directed by the court order
or by the receiver-manager.
Authority of trustee
5.6
(1) A trustee appointed under
securities laws must hold in trust the property specified
in the court order, subject to the terms of the order.
(2) When an order is made appointing
a trustee, the person in respect of whom the order
is made ceases to have authority and may not exercise
any power in respect of the property subject to the
trust, except as directed by the court or the trustee.
Authority of liquidator
5.7
(1) A liquidator appointed
under securities laws must wind up the affairs of
the person in respect of whom the liquidator is appointed
in accordance with the court order.
(2) When an order is made appointing
a liquidator, the person in respect of whom the order
is made ceases to have authority and may not exercise
any powers in respect of the affairs to be wound up,
except as directed by the court or the liquidator.
Termination of appointments
5.8
(1) A receiver or a receiver-manager
appointed under securities laws remains in office
until the appointment is terminated by the court or
(a) the receiver or receiver-manager
winds up the affairs of the person in respect of
whom the order is made in accordance with a direction
of the court, or
(b) a liquidator is appointed to
wind up the affairs of the person.
(2) A liquidator appointed
under securities laws remains in office until the
appointment is terminated by the court or the property
and affairs are wound up.
Fees
5.9 The fees payable to a receiver,
receiver-manager or liquidator for their services, expenses
and disbursements
(a) must be fixed by the court from
time to time,
(b) must be paid,
(i) out of the assets of the person
in respect of whom the appointment was made, or
(ii) if the assets are insufficient,
from the assets of those persons that benefited
from the appointment of the receiver or receiver-manager,
as directed by the court, and
(c) in the case of the winding-up
of a corporation, rank equally with the remuneration
paid to the liquidator.
Application for directions
5.10
(1) A receiver, receiver-manager,
trustee or liquidator may apply to the court for directions
on any matter and the court may
(a) give directions,
(b) if required, declare the rights
of parties before the court, and
(c) make any further order it considers
necessary.
(2) The court may at any time
revoke an appointment under securities laws and appoint
another receiver, receiver-manager, trustee or liquidator
in their place.
Filing in land registry
5.11
(1) The securities regulatory
authority may send a notice to the Registrar of Land
Titles that proceedings are being or are about to
be taken under this Part that may affect land belonging
to the person referred to in the notice, and may amend
or revoke the notice as the circumstances require.
(2) On receipt of the notice,
the Registrar of Land Titles must register or record
the notice against the land named in the notice.
(3) A notice registered or
recorded under subsection (2) has the same effect
as the registration or recording of a certificate
of pending litigation or a caveat.
PART 6: REVIEWS, DECISIONS,
APPEALS
AND ADMINISTRATIVE PROCESSES
Division 1
Review of Decisions
of SRA Delegates
Extra-provincial decision
6.1 In this part, extra-provincial
decision means a decision of an extra-provincial
SRA or its delegate under authority delegated by the
securities regulatory authority.
Review by securities regulatory authority
6.2
(1) The securities regulatory
authority may, on its own initiative, review a decision
of an SRA delegate, other than an extra-provincial
decision.
(2) If the securities regulatory
authority intends to conduct a review on its own initiative,
the securities regulatory authority must, within 30
days after the date of the decision to be reviewed,
notify the following persons of its intention:
(a) the person who made the decision,
and
(b) any person directly affected
by the decision.
Request for review
6.3
(1) A person directly affected
by a decision of an SRA delegate, other than an extra-provincial
decision, may request and is entitled to a review
of the SRA delegate's decision by the securities regulatory
authority.
(2) The request for a review
must be made
(a) by sending notice to the securities
regulatory authority within 30 days after the date
on which the person was sent notice of the decision,
and
(b) by sending a copy of the request
to the person who made the decision.
Regulator's authority and status
6.4 The regulator
(a) has the same right to request
a review of a decision of an SRA delegate as a person
directly affected by the decision;
(b) has the same right to make an
application on any matter as a person directly affected
by the matter that is the subject of the application;
(c) has the same standing at a review
as a person directly affected by the matter under
review, whether or not the regulator requested the
review.
When decisions take effect
6.5 A decision of an SRA delegate
takes effect immediately despite a request for a review
or notice by the securities regulatory authority that
it intends to conduct a review, unless the person who
made the decision or the securities regulatory authority
suspends the decision pending the review.
Nature of a review
6.6 The securities regulatory
authority may decide the nature and extent of a review
to be conducted, including
(a) a partial or full hearing or rehearing
of the matter, or
(b) a documents-only review.
Decision after a review
6.7 After a review, the securities
regulatory authority may confirm, vary or revoke the
decision reviewed and in doing so may
(a) make any decision the SRA delegate
could have made;
(b) on the review of a decision of
a recognized entity or its delegate, make any decision
the recognized entity or its delegate could have made
acting under
(i) authority delegated to the recognized
entity by the securities regulatory authority, or
(ii) rules, policies or other similar
instruments made by the recognized entity;
(c) make any other decision that the
securities regulatory authority may make under securities
laws.
Division 2
Procedural Matters
Witnesses and evidence
6.8
(1) For the purpose of preparing
for or conducting a review or hearing, the securities
regulatory authority has the same power as is vested
in the court for the trial of civil actions:
(a) to summon and enforce the attendance
of witnesses,
(b) to compel witnesses to give
evidence under oath or otherwise, and
(c) to compel witnesses to produce
records, property and things.
(2) The failure or refusal
of a person summoned to attend, answer questions or
produce records, property or things that are in the
person's custody or possession, or under their direct
or indirect control, makes that person, on application
to the court by the securities regulatory authority,
liable to be committed for contempt by the court.
(3) The Alberta Rules of
Court with respect to compelling the attendance
of witnesses, including the provisions relating to
the payment of conduct money, apply to hearings and
reviews conducted by the securities regulatory authority.
(4) No person may, without
lawful excuse, fail to comply with a summons issued
under subsection (1).
Evidence taken outside Alberta
6.9
(1) The securities regulatory
authority may apply to the court for
(a) an order appointing a person
to take the evidence of a witness outside Alberta
for use in an investigation or a proceeding before
the securities regulatory authority, and
(b) a letter of request from the
court directed to the judicial authorities of the
jurisdiction in which a witness is located, requesting
the issuance of such process as is necessary to
compel the person to attend before the person appointed
under clause (a) to give evidence on oath or otherwise
and to produce records, property or things relevant
to the subject matter of the investigation or proceeding.
(2) The practice and procedure
in connection with:
(a) an appointment under this section,
(b) the taking of evidence, and
(c) the certifying and return of
the appointment,
is, to the extent possible, to be
the same as the practice and procedure governing similar
matters in civil proceedings under the Alberta
Rules of Court.
(3) Unless the court otherwise
directs, making an order under this section does not
determine whether evidence obtained as a result of
the order is admissible in a review or hearing before
the securities regulatory authority.
(4) Nothing in this section
limits any power that the securities regulatory authority
has to obtain evidence outside Alberta by any other
means, including under securities laws or by operation
of law.
(5) On application by an extra-provincial
SRA, the court may, for the purpose of administering
extra-provincial securities laws,
(a) summon and enforce the attendance
of witnesses before a person appointed by the extra-provincial
SRA;
(b) direct witnesses to give evidence
under oath or otherwise before the person appointed
by the extra-provincial SRA;
(c) direct witnesses to produce
records, property and things to the person appointed
by the extra-provincial SRA.
(6) The failure or refusal
of a person summoned to attend, answer questions,
or produce records, property or things that are in
the person's custody or possession, or under their
direct or indirect control, makes that person, on
application to the court by the extra-provincial SRA,
liable to be committed for contempt by the court.
(7) The Alberta Rules of
Court with respect to compelling the attendance
of witnesses, including the provisions relating to
the payment of conduct money, apply to proceedings
described in subsections (5) and (6).
Joint reviews, hearings and location
6.10
(1) The securities regulatory
authority may hold a review or hearing in or outside
Alberta on its own, or in conjunction with one or
more extra-provincial SRAs.
(2) Members of the securities
regulatory authority that are sitting on a joint review
or hearing may consult with any member of an extra-provincial
SRA that is taking part in the joint review or joint
hearing.
Evidence
6.11
(1) The securities regulatory
authority
(a) is not bound by the rules of
evidence or any other law applicable to judicial
proceedings,
(b) has the power to determine the
admissibility, relevance and weight of any evidence,
(c) may determine the manner in
which evidence is to be admitted, and
(d) may determine any question of
law or fact.
(2) The securities regulatory
authority may require witnesses to give evidence under
oath.
(3) A member of the securities
regulatory authority may administer an oath for the
purpose of receiving evidence.
Conduct of reviews, hearings and inquiries
6.12 Subject to this Act and
the Uniform Securities Act, all matters respecting
the initiation of hearings, reviews or inquiries, and
other matters relevant to the conduct of hearings, reviews
and inquiries, including pre-hearing disclosure, must
be dealt with in accordance with the rules.
Division 3
Administrative Orders
Protecting
the Public Interest
Interim orders
6.13
(1) If the securities regulatory
authority has the authority to make an order under
this Division, the securities regulatory authority
may, at any time, make an interim order, without a
hearing, when the securities regulatory authority
considers that
(a) the length of time required
to conduct a hearing, or
(b) the length of time to give an
opportunity to be heard and make a decision
could be prejudicial to the public
interest.
(2) Despite subsection (1),
the securities regulatory authority may not make an
interim order
(a) that a market participant submit
to a review of its practices and procedures under
section 6.16(1)(e) [Securities regulatory authority
orders];
(b) that records, property or things
be provided, not be provided or amended under section
6.16(1)(f)(i) and (iii) [Securities regulatory
authority orders];
(c) reprimanding a person under
section 6.16(1)(g) [Securities regulatory authority
orders];
(d) requiring payment of an administrative
penalty under section 6.16(1)(l) [Securities
regulatory authority orders];
(e) requiring disgorgement of amounts
described in section 6.16(1)(m) [Securities regulatory
authority orders].
(3) An interim order
(a) takes effect immediately on
being made, unless the order provides otherwise,
and
(b) expires not more than 15 days
after the date the interim order is made.
(4) If the securities regulatory
authority considers it necessary and in the public
interest, the securities regulatory authority may,
by order made without a hearing, extend the period
of time that an interim order remains in effect
(a) for such period as the securities
regulatory authority considers necessary, or
(b) until a final decision is made.
(5) If the securities regulatory
authority makes an interim order, the securities regulatory
authority must send to any person named in the order,
(a) the interim order and the notice
of hearing, and
(b) any order extending the interim
order.
Freeze orders
6.14
(1) If the securities regulatory
authority considers it expedient for the administration
of securities laws, the securities regulatory authority
may, by order,
(a) direct a person having on deposit,
or under their direct or indirect control or safekeeping,
records, property or things, including funds or
securities, to hold them pending a further order,
or
(b) direct a person who owns or
is in possession or control of records, property
or things, including funds or securities,
(i) not to withdraw or remove
the records, property or things from any person
having them on deposit, under their direct or
indirect control, or holding them for safekeeping,
or
(ii) to hold all records, property
or things of clients or others in the person's
possession or control in trust for a receiver,
receiver-manager, trustee or liquidator appointed
under securities laws, any other enactment, or
an enactment of Canada.
(2) An order of a securities
regulatory authority to a Canadian financial institution
applies to all offices, branches or agencies of the
Canadian financial institution that are located in
Alberta if a copy of the order is served on the Canadian
financial institution's principal place of business
in Alberta.
(3) Unless it expressly so
states, an order of the securities regulatory authority
does not apply to records, property or things in a
clearing agency or to securities in the process of
being transferred by a transfer agent.
(4) The securities regulatory
authority may send a notice to the Registrar of Land
Titles that proceedings are being or are about to
be taken under this Part that may affect land belonging
to the person referred to in the notice, and may amend
or revoke the notice as the circumstances require.
(5) On receipt of the notice,
the Registrar of Land Titles must register or record
the notice against the land named in the notice.
(6) A notice registered or
recorded under subsection (5) has the same effect
as the registration or recording of a certificate
of pending litigation or a caveat.
Cease trading orders for failing to
file records
6.15
(1) For the reasons set out
in subsection (2), the securities regulatory authority,
without a hearing, may order that all persons named
in the order
(a) not trade or purchase specified
securities, or
(b) stop or not start purchasing
specified securities.
(2) The securities regulatory
authority may make the order if the issuer of the
security, the exchange on which an exchange-traded
derivative is traded or the person in respect of whom
the order is made, fails to file a record required
to be filed under securities laws.
(3) The order must be revoked
as soon as practicable after the record referred to
in the order, completed in accordance with securities
laws, is filed.
(4) The securities regulatory
authority must send to any person directly affected
by the order
(a) written notice of the order,
and
(b) written notice of the revocation
of the order, if any.
Securities regulatory authority orders
6.16
(1) If, after a hearing, the
securities regulatory authority considers that it
is in the public interest, the securities regulatory
authority may make one or more of the following orders:
(a) that
(i) a person be prohibited from
being registered;
(ii) registration granted to a
person under securities laws be suspended and
the duration of the suspension;
(iii) registration be restricted
or limited to such period as is specified in the
order;
(iv) registration be terminated;
(b) that
(i) recognition granted to a recognized
entity be suspended and the duration of the suspension;
(ii) recognition be restricted
or limited to such period as is specified in the
order;
(iii) recognition be terminated;
(c) that trading in or purchasing
any securities by or of a person cease permanently
or for such period as is specified in the order;
(d) that any exemptions contained
in securities laws do not apply to a person permanently
or for such period as is specified in the order;
(e) that a market participant submit
to a review of their practices and procedures and
institute such changes as may be ordered by the
securities regulatory authority;
(f) that any record described in
the order,
(i) be provided by a market participant
to a person,
(ii) not be provided by a market
participant to a person, or
(iii) be amended by a market participant
to the extent that amendment is practi | |
