Bill 62 - An Act to Amend the Securities Act

BILL 62

An Act to Amend the Securities Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Securities Act, chapter S-5.5 of the Acts of New Brunswick, 2004, is amended

(a) in subsection (1)

(i) in the French version in the definition « corporation » by striking out “toute autre personne morale” and substituting “toute autre corporation”;

(ii) in the definition “decision” by striking out “this Act or the regulations” and substituting “this Act or the regulations or under a delegation or transfer of an extra-provincial authority under section 195.11”;

(iii) by repealing the definition “insider” or “insider of a reporting issuer”;

(iv) by repealing the definition “investment fund manager” and substituting the following:

“investment fund manager” means a person who directs the business, operations or affairs of an investment fund. (gestionnaire de fonds d’investissement)

(v) in the English version in the definition “issuer” by striking out “who has outstanding, issues or proposes to issue a security” and substituting “who has a security outstanding, is issuing a security or proposes to issue a security”;

(vi) in the definition “market participant”

(A) in paragraph (b) by striking out “from the requirement to be registered under this Act” and substituting “from the requirement to be registered under this Act or the regulations”;

(B) in paragraph (e) by striking out “a mutual fund” and substituting “an investment fund”;

(vii) in the definition “mutual fund”

(A) in the portion preceding paragraph (a) by striking out “includes” and substituting “means”;

(B) in subparagraph (a)(ii) of the English version by adding “or” at the end of the subparagraph;

(b) an issuer that is

(i) designated to be a mutual fund in an order made under subsection 1.1(2), or

(ii) in a class of persons designated by the regulations,

(D) by repealing paragraph (c);

(E) by striking out the portion following paragraph (c) and substituting the following:

but does not include an issuer, or a class of issuers, that is designated not to be a mutual fund by an order made under subsection 1.1(1) or by a regulation. (fonds commun de placement)

(viii) in the definition “New Brunswick securities law”

(A) in paragraph (b) of the English version by striking out “and” at the end of the paragraph;

(B) in paragraph (c) by striking out the period at the end of the paragraph and substituting a comma followed by “and”;

(d) any extra-provincial securities laws adopted or incorporated by reference under section 195.3.

(ix) by repealing the definition “officer” and substituting the following:

“officer”, with respect to an issuer or a registrant, means (dirigeant)

(a) a chair or vice-chair of the board of directors, a chief executive officer, a chief operating officer, a chief financial officer, a president, a vice-president, a secretary, an assistant secretary, a treasurer, an assistant treasurer and a general manager,

(b) an individual who is designated as an officer under a by-law or similar authority, or

(c) an individual who performs functions similar to those normally performed by an individual referred to in paragraph (a) or (b).

(x) in the French version in the definition « personne » by striking out “de la société en nom collectif” and substituting “de la société de personnes”;

(xi) in the definition “registered adviser” by striking out “registered under this Act” and substituting “registered under this Act or the regulations”;

(xii) in the definition “registered dealer” by striking out “registered under this Act” and substituting “registered under this Act or the regulations”;

(xiii) in the definition “registrant” by striking out “registered or required to be registered under this Act” and substituting “registered or required to be registered under this Act or the regulations”;

(xiv) in the definition “reporting issuer”

(A) in the portion preceding paragraph a) of the French version by striking out “Sauf si la Commission rend une ordonnance aux termes de l’article 95 à l’effet que l’émetteur est réputé ne plus être un émetteur assujetti” and substituting “Sauf si l’émetteur est désigné comme n’étant pas un émetteur assujetti ou fait partie d’une catégorie d’émetteurs qui est désignée comme n’étant pas un émetteur assujetti par ordonnance rendue aux termes du paragraphe 1.1(1) ou par règlement”;

(B) in paragraph (a) in the portion preceding subparagraph (i) by striking out “voting”;

(d) that has exchanged its securities with another issuer or with the holders of the securities of that other issuer in connection with a reorganization, amalgamation, merger or arrangement or similar business combination if one of the parties to the reorganization, amalgamation, merger or arrangement or similar business combination was a reporting issuer at the time of the reorganization, amalgamation, merger or arrangement or similar business combination,

(D) by repealing paragraph (e) and substituting the following:

(e) that is designated to be a reporting issuer in an order made under subsection 1.1(2), or

(E) by repealing paragraph (f) and substituting the following:

(f) that is in a class of persons designated by the regulations,

(F) by striking out the portion following paragraph (f) of the English version and substituting the following:

but does not include an issuer, or a class of issuers, that is designated not to be a reporting issuer by an order made under subsection 1.1(1) or by a regulation. (émetteur assujetti)

(xv) in the definition “sales literature” by striking out “except preliminary prospectuses” and substituting “except offering memoranda, preliminary prospectuses”;

(xvi) in the definition “self-regulatory organization” by striking out “represents registrants and”;

(xvii) by repealing the definition “senior officer”;

(xviii) by adding the following definitions in alphabetical order:

“economic interest” means (intérêt financier)

(a) a right to receive or the opportunity to participate in a reward, benefit or return from a security, or

(b) the exposure to a risk of a financial loss in respect of a security.

“forward-looking information” means disclosure regarding possible events, conditions or results of operations that is based on assumptions about future economic conditions and courses of action and includes future-oriented financial information with respect to prospective results of operations, financial position or cash flows that is presented either as a forecast or a projection. (information prospective)

“insider” means (initié)

(a) a director or officer of an issuer,

(b) a director or officer of a person who is itself an insider or subsidiary of an issuer,

(i) beneficial ownership of, or control or direction over, directly or indirectly, securities of an issuer carrying more than 10% of the voting rights attached to all the issuer’s outstanding voting securities, excluding, for the purpose of the calculation of the percentage held, any securities held by the person as underwriter in the course of a distribution, or

(ii) a combination of beneficial ownership of, and control or direction over, directly or indirectly, securities of an issuer carrying more than 10% of the voting rights attached to all the issuer’s outstanding voting securities, excluding, for the purpose of the calculation of the percentage held, any securities held by the person as underwriter in the course of a distribution,

(d) an issuer that has purchased, redeemed or otherwise acquired a security of its own issue, for so long as it continues to hold that security,

(e) a person designated to be an insider in an order made under subsection 1.1(2), or

(f) a person that is in a class of persons designated by the regulations,

but does not include any person, or a class of persons, that is designated not to be an insider by an order made under subsection 1.1(1) or by a regulation.

“member of the Commission” means (membre de la Commission)

(a) the Chair, or

(b) a member of the Commission appointed under subsection 7(1).

“non-redeemable investment fund” means (fonds d’investissement à capital fixe)

(a) an issuer

(i) whose primary purpose is to invest money provided by its security holders,

(ii) that does not invest

(A) for the purpose of exercising or seeking to exercise control of an issuer, other than an issuer that is a mutual fund or a non-redeemable investment fund, or

(B) for the purpose of being actively involved in the management of any issuer in which it invests, other than an issuer that is a mutual fund or a non-redeemable investment fund, and

(iii) that is not a mutual fund, or

(b) an issuer that is

(i) designated to be a non-redeemable investment fund in an order made under subsection 1.1(2), or

(ii) in a class of persons designated by the regulations,

but does not include an issuer, or a class of issuers, that is designated not to be a non-redeemable investment fund by an order made under subsection 1.1(1) or by a regulation.

“related financial instrument” means (instrument financier lié)

(a) an instrument, an agreement or a security the value, market price or payment obligations of which are derived from, referenced to or based on the value, market price or payment obligations of a security, or

(b) any other instrument or agreement or any understanding that affects, directly or indirectly, a person’s economic interest in a security.

“securities regulatory authority”, except in Part 15.1, means a person empowered by the laws of a jurisdiction to regulate trading in securities or to administer or enforce laws respecting trading in securities. (organisme de réglementation des valeurs mobilières)

“supplementary member of the Commission” means a supplementary member of the Commission appointed under subsection 7.1(1). (membre supplémentaire de la Commission)

(b) by repealing subsection (7);

(d) by repealing subsection (9).

2 The Act is amended by adding after section 1 the following:

Designation orders

1.1(1) The Commission may, if the Commission is of the opinion that to do so would not be prejudicial to the public interest, make an order, subject to such terms and conditions as it considers appropriate, designating, for the purposes of New Brunswick securities law, a person or class of persons not to be

(a) an insider,

(b) a reporting issuer,

(d) a non-redeemable investment fund.

1.1(2) The Commission may, if in the opinion of the Commission it is in the public interest, make an order designating, for the purposes of New Brunswick securities law, a person to be

(a) an insider,

(b) a reporting issuer,

(d) a non-redeemable investment fund.

1.1(3) An order under subsection (1) or (2) may be made on the application of an interested person or the Executive Director.

1.1(4) The Commission shall not make an order under subsection (1) or (2) without giving an interested person or the Executive Director an opportunity to be heard.

1.1(5) An order under subsection (1) may be retroactive in its operation.

3 Subsection 3(2) of the Act is amended by striking out “other members” and substituting “other members of the Commission”.

4 Paragraph 5(c) of the Act is amended by striking out “administration and enforcement of this Act” and substituting “administration and enforcement of this Act and the regulations”.

5 The heading “Members other than Chair” preceding section 7 of the Act is repealed and the following is substituted:

Members of the Commission other than the Chair

6 The Act is amended by adding after section 7 the following:

Supplementary members of the Commission

7.1(1) Notwithstanding subsection 3(2), the Lieutenant-Governor in Council may appoint persons as supplementary members of the Commission for the purposes of section 23.1.

7.1(2) Except as otherwise provided in this Act or the regulations, a supplementary member of the Commission shall not exercise or perform any power or duty under this Act or the regulations except as a member of a hearing panel to which he or she has been assigned under section 23.1 by the Chair.

7.1(3) Supplementary members of the Commission shall be appointed for a term not exceeding 3 years and may be reappointed.

7.1(4) Supplementary members of the Commission are entitled to be paid such remuneration as is fixed by the by-laws of the Commission.

7.1(5) Each supplementary member of the Commission is entitled to be paid such travelling and living expenses incurred by him or her in the performance of his or her duties as are fixed by the by-laws of the Commission.

7 The Act is amended by repealing section 10 and substituting the following:

10(1) Notwithstanding subsections 7(1) and 8(1) and subject to section 11, a member of the Commission remains in office until he or she resigns or is reappointed or replaced.

10(2) If a member of the Commission or a supplementary member of the Commission resigns or is replaced, the Chair may authorize that person to carry out and complete the duties and exercise any powers that the person would have had, if the person had not ceased to be a member of the Commission or supplementary member of the Commission, in connection with any matter in respect of which there was a hearing in which the person participated as a member of the Commission or supplementary member of the Commission.

10(3) An authorization under subsection (2) continues until a final decision in respect of the matter is made.

10(4) If a person performs duties or exercises powers under subsection (2), section 9 or subsections 7.1(4) and (5), as the case may be, shall continue to apply as though the person were still a member of the Commission or supplementary member of the Commission.

8 Section 11 of the Act is amended by striking out “Chair and any other member of the Commission” and substituting “Chair or any other member of the Commission or any supplementary member of the Commission”.

9 Section 12 of the English version of the Act is amended

(a) in subsection (1) by striking out “or other member” and substituting “or other member of the Commission”;

(b) in subsection (2) by striking out “of any member of the Commission, other than the Chair, appoint a substitute for the member” and substituting “of any member of the Commission, other than the Chair, appoint a substitute for the member of the Commission”;

10 Section 13 of the Act is amended by striking out “constitute a quorum” and substituting “constitute a quorum of the Commission”.

11 Section 16 of the Act is repealed and the following is substituted:

16(1) The Executive Director may in writing delegate his or her powers or duties under this Act or the regulations to an employee of the Commission.

16(2) The Executive Director may, in a written delegation under subsection (1),

(a) impose on the delegate terms and conditions that the Executive Director considers appropriate, and

(b) authorize the delegate to subdelegate in writing the powers or duties to an employee of the Commission and to impose on the subdelegate any terms and conditions that the delegate considers appropriate, in addition to those imposed in the Executive Director’s written delegation.

16(3) A delegate or subdelegate to whom this section applies shall comply with any terms and conditions imposed in the Executive Director’s written delegation.

16(4) A subdelegate to whom this section applies shall comply with any terms and conditions imposed on the subdelegate by the delegate.

16(5) The Executive Director may revoke, in whole or in part, a written delegation made under subsection (1).

16(6) An employee of the Commission who subdelegates a power or duty as authorized in a written delegation made under subsection (1) may revoke, in whole or in part, the subdelegation.

16(7) A decision, ruling, order, temporary order or direction made by a person under a written delegation or subdelegation made under this section shall be deemed to be a decision, ruling, order, temporary order or direction of the Executive Director.

12 Section 20 of the Act is amended

(a) by striking out the portion preceding paragraph (a) and substituting the following:

20 No action or other proceeding may be brought against any of the following persons for anything done or not done, or for any neglect, in the performance or exercise, or the intended performance or exercise, in good faith of any power or duty under the authority of this Act or the regulations:

(b) by adding after paragraph (c) the following:

(c.1) any supplementary member or former supplementary member of the Commission;

(c) in paragraph (f) by striking out “this Act or the instructions of a person referred to in paragraph (a), (b), (c) or (d)” and substituting “this Act or the regulations or the instructions of a person referred to in paragraph (a), (b), (c), (c.1) or (d)”.

13 Section 21 of the Act is amended

(a) in subsection (1) by striking out the portion preceding paragraph (a) and substituting the following:

21(1) Except in relation to an action by or on behalf of the Commission, in which case the approval of the Court of Queen’s Bench must first be obtained, the Commission may indemnify the Chair or a former Chair, any other member or former member of the Commission, any supplementary member or former supplementary member of the Commission or any employee or former employee of the Commission, and his or her heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in relation to any civil, criminal or administrative action or proceeding to which he or she is made a party by reason of being or having been the Chair, another member of the Commission, a supplementary member of the Commission or an employee of the Commission, if he or she

(b) in subsection (2) in the portion preceding paragraph (a) by striking out “the Chair or other member of the Commission or an employee of the Commission” and substituting “the Chair, another member of the Commission, a supplementary member of the Commission or an employee of the Commission”;

(c) in subsection (3) by striking out “as the Chair or as another member of the Commission or as an employee of the Commission” and substituting “as the Chair, as another member of the Commission, as a supplementary member of the Commission or as an employee of the Commission”.

14 Section 22 of the Act is amended

(a) in subsection (1)

(i) in paragraph (a) of the English version by adding “and” at the end of the paragraph;

(ii) by repealing paragraph (b);

(b) by repealing subsection (2).

15 Section 23 of the Act is amended

(a) in subsection (1) by striking out “this Act” and substituting “this Act or the regulations”;

(b) by adding after subsection (5) the following:

23(6) The Commission may receive in evidence any statement, document, record, information or thing that, in the opinion of the Commission, is relevant to the matter before it, whether or not the statement, document, record, information or thing is given or produced under oath or would be admissible as evidence in a court of law.

16 The Act is amended by adding after section 23 the following:

Hearing panels of the Commission

23.1(1) The Chair may assign 2 or more persons from among the members of the Commission and supplementary members of the Commission to sit as members of a hearing panel of the Commission and may direct the hearing panel to conduct any hearing or review that the Commission itself could conduct under this Act or the regulations.

23.1(2) Two members of a hearing panel of the Commission constitute a quorum at a hearing or review conducted by the hearing panel.

23.1(3) A decision, ruling, order, temporary order or direction made by a hearing panel of the Commission, or any action taken by a hearing panel of the Commission, at a sitting of a hearing panel shall be deemed to be a decision, ruling, order, temporary order or direction of the Commission or action of the Commission, as the case may be.

23.1(4) A hearing panel of the Commission has, with respect to its duties, the same jurisdiction as that of the Commission and may exercise all the powers of the Commission under this Act or the regulations with respect to a hearing or review that the hearing panel is directed to conduct, and, for that purpose, any reference in this Act or the regulations to the Commission is deemed to be a reference to a hearing panel of the Commission.

23.1(5) The Chair may designate a member of a hearing panel of the Commission to preside at any sitting of the hearing panel.

23.1(6) Two or more hearing panels of the Commission may be constituted and may act simultaneously.

23.1(7) A hearing panel of the Commission shall conduct its sittings separately from those of another hearing panel of the Commission being conducted at the same time.

23.1(8) Where a hearing or review is being conducted by a hearing panel of the Commission and a member of the hearing panel is for any reason unable to complete the hearing or review, the remaining members may, if they constitute a quorum of the hearing panel, complete the hearing or review.

17 Section 24 of the Act is repealed and the following is substituted:

24(1) Subject to subsection (3), the Commission may in writing delegate its powers or duties under this Act or the regulations to the Chair, another member of the Commission, the Executive Director, a committee of the Commission established by the by-laws of the Commission or an employee of the Commission.

24(2) In a written delegation under subsection (1), the Commission may

(a) impose on the delegate terms and conditions that it considers appropriate, and

(b) in the case of a delegation of powers or duties to the Executive Director, authorize the Executive Director to subdelegate in writing the powers or duties to an employee of the Commission and to impose on the subdelegate any terms and conditions that the Executive Director considers appropriate, in addition to those imposed in the Commission’s written delegation.

24(3) The Commission shall not delegate under subsection (1) the power to conduct contested hearings on the merits or the power to make rules under section 200.

24(4) A delegate or subdelegate to whom this section applies shall comply with any terms and conditions imposed in the Commission’s written delegation.

24(5) A subdelegate to whom this section applies shall comply with any terms and conditions imposed on the subdelegate by the Executive Director.

24(6) The Commission may revoke, in whole or in part, a written delegation made under subsection (1).

24(7) Where the Executive Director subdelegates a power or duty as authorized in a written delegation made under subsection (1), he or she may revoke, in whole or in part, the subdelegation.

24(8) No member of the Commission who exercises a power or performs a duty of the Commission under Part 13 in respect of a matter under investigation shall sit on a hearing by the Commission that deals with the matter, except with the written consent of the parties to the proceeding.

24(9) A decision, ruling, order, temporary order or direction made by a person under a written delegation or subdelegation made under this section shall be deemed to be a decision, ruling, order, temporary order or direction of the Commission.

18 Section 26 of the Act is amended by striking out “the other members of the Commission” and substituting “the other members of the Commission, the supplementary members of the Commission”.

19 Subsection 29(3) of the Act is amended by striking out “The members” and substituting “The members of the Commission, supplementary members of the Commission”.

20 Subsection 33(2) of the Act is repealed and the following is substituted:

33(2) The Committee shall consist of such members as are appointed by the Minister.

21 Section 47 of the Act is repealed and the following is substituted:

47 An application for registration or amendment to registration shall be made in accordance with the regulations.

22 The heading “Granting registration” preceding section 48 of the English version of the Act is repealed and the following is substituted:

Registration

23 Section 48 of the Act is amended

(a) in subsection (1)

(i) in the portion preceding paragraph (a) by striking out “registration, renewal or reinstatement of registration or amendment to registration” and substituting “registration, reinstatement of registration or amendment to registration”;

(ii) in paragraph (a) of the English version by striking out “registration, renewal or reinstatement of registration or amendment to registration” and substituting “registration, reinstatement of registration or amendment to registration”;

(iii) in paragraph (b) of the English version by striking out “registration, renewal or reinstatement of registration or amendment to registration” and substituting “registration, reinstatement of registration or amendment to registration”;

(b) by repealing subsection (2) and substituting the following:

48(2) The Executive Director may at any time restrict a registration by imposing such terms and conditions as he or she considers appropriate on the registration and, without limiting the generality of the foregoing, may restrict

(a) the duration of the registration, and

(b) the registration to trades in certain securities or a certain class of securities.

48(4) The Executive Director shall not refuse to grant, reinstate or amend a registration or impose terms and conditions on the registration without giving the applicant or registrant an opportunity to be heard.

24 The heading “Subsequent application” preceding section 49 of the Act is repealed.

25 Section 49 of the Act is repealed.

26 Section 51 of the Act is repealed and the following is substituted:

51(1) On the application of a registrant, the Executive Director may accept, subject to such terms and conditions as he or she considers appropriate, the voluntary surrender of the registration of the registrant unless the Executive Director is of the opinion that it could be prejudicial to the public interest to do so.

51(2) On receiving an application under subsection (1), the Executive Director may, without providing an opportunity to be heard, suspend the registration.

27 Subsection 53(1) of the Act is repealed and the following is substituted:

(a) the registrant has contravened or failed to comply with a term or condition imposed on the registration under subsection 48(2), or

(b) the registrant has contravened or failed to comply with section 54.

28 Section 55 of the Act is amended by adding after subsection (2) the following:

55(3) An order under subsection (1) may be retroactive in its operation.

29 Paragraph 57(3)(b) of the Act is amended

(a) in subparagraph (i) by striking out “from the requirement to be registered under this Act” and substituting “from the requirement to be registered under this Act or the regulations”;

(b) in subparagraph (ii) by striking out “from the requirement to be registered under this Act” and substituting “from the requirement to be registered under this Act or the regulations”.

30 Section 58 of the Act is amended

(a) in subsection (1)

(i) by striking out the portion preceding paragraph (a) and substituting the following:

58(1) No person shall make any representation, orally or in writing, that the person or another person

(ii) in paragraph (a) by striking out “the security” and substituting “a security”;

(iii) in paragraph (b) by striking out “the security” and substituting “a security”;

(b) by adding after subsection (1) the following:

58(1.1) Subsection (1) does not apply to a security that carries or is accompanied by an obligation of the issuer to redeem or purchase the security or a right of the owner of the security to require the issuer to redeem or purchase the security.

(c) in subsection (4) by striking out “No person, with the intention of effecting a trade in a security,” and substituting “No person”.

31 The Act is amended by adding after section 58 the following:

Important statement

58.1 A person shall not make a statement about something that a reasonable investor would consider important in deciding whether to enter or maintain a trading or advising relationship with the person if the statement is misleading or untrue or does not state a fact that is required to be stated or that is necessary to make the statement not misleading.

Unfair practices prohibited

58.2(1) In this section, “unfair practice” includes

(a) putting unreasonable pressure on a person to subscribe to, purchase, hold or trade a security,

(b) taking advantage of a person’s

(i) inability or incapacity to reasonably protect the person’s own interests because of physical or mental infirmity, ignorance, illiteracy or age, or

(ii) inability to understand the character, nature or the language of any matter relating to a decision to subscribe to, purchase, hold or trade a security, and

58.2(2) No person shall engage in an unfair practice

(a) while advising in relation to the subscription for or purchase or trading of a security, or

(b) with the intention of effecting the subscription for or purchase or trading of a security.

32 Subsection 59(3) of the Act is amended by striking out “from the requirement to be registered under this Act” and substituting “from the requirement to be registered under this Act or the regulations”.

33 Section 64 of the Act is amended in the portion preceding paragraph (a) by striking out “registered under this Act” and substituting “registered under this Act or the regulations”.

34 Section 65 of the Act is amended by striking out “has in any way passed judgment on” and substituting “has expressed an opinion or in any way passed judgment on”.

35 Section 73 of the Act is repealed and the following is substituted:

73(1) Before the Executive Director accepts the filing of a preliminary prospectus under this Part or the regulations, the Executive Director may, if in the opinion of the Executive Director it is in the public interest, require the person submitting the preliminary prospectus for filing to satisfy conditions and additional filing requirements.

73(2) On the filing of a preliminary prospectus under this Part or the regulations, the Executive Director shall issue a receipt for the preliminary prospectus.

36 Section 74 of the Act is amended

(a) by repealing subsection (3) and substituting the following:

74(3) A prospectus shall contain such certificates as are required by the regulations.

(b) by repealing subsection (4).

37 Section 75 of the Act is amended

(a) by adding before subsection (1) the following:

75(0.1) Before the Executive Director accepts the filing of a prospectus under this Part or the regulations, the Executive Director may, if in the opinion of the Executive Director it is in the public interest, require the person submitting the prospectus for filing to satisfy conditions and additional filing requirements.

(b) in subsection (1) by striking out “this Part” and substituting “this Part or the regulations”;

(i) by repealing subparagraph (iv) and substituting the following:

(iv) having regard to the financial condition of the issuer, of an officer, director, promoter or control person of the issuer, of the investment fund manager of the issuer or of an officer, director or control person of the investment fund manager, the issuer cannot reasonably be expected to be financially responsible in the conduct of its business,

(ii) by repealing subparagraph (v) and substituting the following:

(v) the past conduct of the issuer, of an officer, director, promoter or control person of the issuer, of the investment fund manager of the issuer or of an officer, director or control person of the investment fund manager affords reasonable grounds for belief that the business of the issuer will not be conducted with integrity and in the best interests of its security holders,

(iii) in subparagraph (vi) by striking out “such escrow or pooling agreement as the Executive Director considers necessary” and substituting “an escrow or pooling agreement in the form that the Executive Director considers necessary”;

(iv) in subparagraph (vii) of the English version by adding “or” at the end of the subparagraph;

(v) by repealing subparagraph (viii).

38 Section 76 of the Act is repealed and the following is substituted:

76(1) Where required to do so under this Part or the regulations, a person shall file and deliver an amendment to a preliminary prospectus in accordance with the regulations.

76(2) Subject to subsection (3), the Executive Director shall issue a receipt for an amendment to a preliminary prospectus on the filing of the amendment to the preliminary prospectus under this Part or the regulations.

76(3) The Executive Director shall not issue a receipt for an amendment to a preliminary prospectus if the Executive Director is of the opinion that any of the circumstances referred to in subsection 75(2) exist.

39 Section 77 of the Act is repealed and the following is substituted:

77(1) Where required to do so under this Part or the regulations and subject to subsection (3), a person shall file and deliver an amendment to a prospectus in accordance with the regulations.

77(2) An amendment to a prospectus shall contain such certificates as are required by the regulations.

77(3) Before the Executive Director accepts the filing of an amendment to a prospectus under this Part or the regulations, the Executive Director may, if in the opinion of the Executive Director it is in the public interest, require the person submitting the amendment to the prospectus for filing to satisfy conditions and additional filing requirements.

77(4) Subject to subsection (5), the Executive Director shall issue a receipt for an amendment to a prospectus on the filing of the amendment to the prospectus under this Part or the regulations.

77(5) The Executive Director shall not issue a receipt for an amendment to a prospectus if the Executive Director is of the opinion that any of the circumstances referred to in subsection 75(2) exist.

77(6) The Executive Director shall not refuse to issue a receipt under subsection (5) without giving the person who filed the amendment to the prospectus an opportunity to be heard.

40 Section 78 of the Act is repealed and the following is substituted:

78(1) No person shall continue a distribution of a security to which subsection 71(1) applies after the lapse date prescribed by regulation unless the distribution is in accordance with the regulations.

78(2) If a distribution to which subsection (1) applies is not in accordance with the regulations, all trades completed after the lapse date prescribed by regulation may be cancelled at the option of the purchaser in accordance with the regulations.

41 Section 80 of the Act is amended by adding after subsection (3) the following:

80(4) An order under subsection (1) may be retroactive in its operation.

42 The heading “Distribution of preliminary prospectus” preceding section 83 of the Act is repealed.

43 Section 83 of the Act is repealed.

44 The heading “Distribution list” preceding section 84 of the Act is repealed.

45 Section 84 of the Act is repealed.

46 Section 85 of the Act is amended by striking out “record maintained under section 84” and substituting “record maintained in accordance with the regulations”.

47 Section 88 of the Act is repealed and the following is substituted:

88(1) A person within a class of persons that is prescribed by regulation who receives an order or subscription for a security offered in a distribution to which subsection 71(1) or 78(1) applies shall deliver to the purchaser, in accordance with the regulations,

(a) the latest prospectus filed or required to be filed under this Act or the regulations, and

(b) any amendment to the prospectus filed or required to be filed under this Act or the regulations.

88(2) A person who purchases a security under a distribution to which subsection 71(1) or 78(1) applies may cancel the purchase of the security in the circumstances prescribed by regulation.

48 The heading “Disclosure of material change” preceding section 89 of the Act is repealed and the following is substituted:

Continuous Disclosure

49 Section 89 of the Act is repealed and the following is substituted:

89(1) A reporting issuer shall, in accordance with the regulations,

(a) provide such periodic disclosure as is prescribed by regulation about its business and affairs,

(b) provide disclosure of a material change, and

89(2) An issuer that is not a reporting issuer shall disclose, in accordance with the regulations, information prescribed by regulation.

50 The heading “Interim financial statements and comparative financial statements” preceding section 90 of the Act is repealed.

51 Section 90 of the Act is repealed.

52 The heading “Delivery of financial statements to security holders” preceding section 91 of the Act is repealed.

53 Section 91 of the Act is repealed.

54 Section 92 of the Act is amended by adding after subsection (2) the following:

92(3) An order under subsection (1) may be retroactive in its operation.

55 The heading “Filing of information circular” preceding section 93 of the Act is repealed.

56 Section 93 of the Act is repealed.

57 The heading “Filing of documents filed in another jurisdiction” preceding section 94 of the Act is repealed.

58 Section 94 of the Act is repealed.

59 The heading “Order relieving reporting issuer” preceding section 95 of the Act is repealed.

60 Section 95 of the Act is repealed.

61 The heading “Deeming an issuer to be a reporting issuer” preceding section 96 of the Act is repealed.

62 Section 96 of the Act is repealed.

63 The heading “Certificate regarding reporting issuer” preceding section 97 of the Act is repealed and the following is substituted:

List of defaulting reporting issuers

64 Section 97 of the Act is repealed and the following is substituted:

97 The Commission may publish a list of reporting issuers that are in default.

65 The heading “Definition of “solicitation”” preceding section 98 of the Act is repealed.

66 Section 98 of the Act is repealed.

67 The heading “Mandatory solicitation of proxies” preceding section 100 of the Act is repealed.

68 Section 100 of the Act is repealed.

69 The heading “Information circular” preceding section 101 of the Act is repealed.

70 Section 101 of the Act is repealed.

71 The heading “Compliance with laws of another jurisdiction” preceding section 104 of the Act is repealed.

72 Section 104 of the Act is repealed.

73 Section 105 of the Act is amended by adding after subsection (2) the following:

105(3) An order under subsection (1) may be retroactive in its operation.

74 The heading “Definitions and interpretation” preceding section 106 of the Act is repealed and the following is substituted:

Definitions

75 Section 106 of the Act is repealed and the following is substituted:

106 The following definitions apply in this Part.

“interested person” means (personne intéressée)

(a) an issuer whose securities are the subject of a take-over bid, issuer bid or offer to acquire,

(b) a security holder, director or officer of an issuer referred to in paragraph (a),

(d) the Executive Director, and

(e) any person not referred to in paragraphs (a) to (d) who, in the opinion of the Commission or the Court of Queen’s Bench, as the case may be, is a proper person to make an application under section 129 or 130, as the case may be.

“issuer bid” means a direct or indirect offer to acquire or redeem a security or a direct or indirect acquisition or redemption of a security that is (offre de l’émetteur)

(a) made by the issuer of the security, and

(b) within a class of offers, acquisitions or redemptions that is prescribed by regulation.

“take-over bid” means a direct or indirect offer to acquire a security that is (offre d’achat visant à la mainmise)

(a) made by a person other than the issuer of the security, and

(b) within a class of offers to acquire that is prescribed by regulation.

76 The heading “Computation of time and expiry of bid” preceding section 107 of the Act is repealed.

77 Section 107 of the Act is repealed.

78 The heading “Convertible securities” preceding section 108 of the Act is repealed.

79 Section 108 of the Act is repealed.

80 The heading “Deemed beneficial ownership” preceding section 109 of the Act is repealed.

81 Section 109 of the Act is repealed.

82 The heading “Acting jointly or in concert” preceding section 110 of the Act is repealed.

83 Section 110 of the Act is repealed.

84 The heading “Application to direct and indirect offers” preceding section 111 of the Act is repealed.

85 Section 111 of the Act is repealed.

86 The heading “Exempt take-over bids” preceding section 112 of the Act is repealed and the following is substituted:

Making a bid

87 Section 112 of the Act is repealed and the following is substituted:

112 A person shall not make a take-over bid or an issuer bid, whether alone or acting jointly or in concert with one or more persons, except in accordance with the regulations.

88 The heading “Exempt issuer bids” preceding section 113 of the Act is repealed.

89 Section 113 of the Act is repealed.

90 The heading “Exchange requirements” preceding section 114 of the Act is repealed.

91 Section 114 of the Act is repealed.

92 The heading “Definition of “offeror”” preceding section 115 of the Act is repealed.

93 Section 115 of the Act is repealed.

94 The heading “Restrictions on acquisitions during take-over bids” preceding section 116 of the Act is repealed.

95 Section 116 of the Act is repealed.

96 The heading “Restrictions on acquisitions during issuer bids” preceding section 117 of the Act is repealed.

97 Section 117 of the Act is repealed.

98 The heading “Restrictions on pre-bid and post-bid acquisitions” preceding section 118 of the Act is repealed.

99 Section 118 of the Act is repealed.

100 The heading “Sales during bid prohibited” preceding section 119 of the Act is repealed.

101 Section 119 of the Act is repealed.

102 The heading “General provisions” preceding section 120 of the Act is repealed.

103 Section 120 of the Act is repealed.

104 The heading “Financing of bid” preceding section 121 of the Act is repealed.

105 Section 121 of the Act is repealed.

106 The heading “Consideration” preceding section 122 of the Act is repealed.

107 Section 122 of the Act is repealed.

108 The heading “Offeror’s circular” preceding section 123 of the Act is repealed.

109 Section 123 of the Act is repealed.

110 The heading “Directors’ circular” preceding section 124 of the Act is repealed and the following is substituted:

Directors’ or individual director’s or officer’s recommendation

111 Section 124 of the Act is repealed and the following is substituted:

124(1) When a take-over bid has been made, the directors of the issuer whose securities are the subject of the take-over bid shall

(a) determine whether to recommend acceptance or rejection of the take-over bid or determine not to make a recommendation, and

(b) make the recommendation, or a statement that they are not making a recommendation, in accordance with the regulations.

124(2) An individual director or officer of the issuer whose securities are the subject of a take-over bid may recommend acceptance or rejection of the take-over bid if the recommendation is made in accordance with the regulations.

112 The heading “Commencement of bid” preceding section 125 of the Act is repealed.

113 Section 125 of the Act is repealed.

114 The heading “Reports on acquisitions” preceding section 126 of the Act is repealed and the following is substituted:

Early warning

115 Section 126 of the Act is repealed and the following is substituted:

126 If a person acquires directly or indirectly beneficial ownership of, or control or direction over, securities of a reporting issuer that are of a type or class of securities that is prescribed by regulation and, as a result, the person and any other person acting jointly or in concert with the person, hold securities representing a percentage prescribed by regulation of the outstanding securities of the reporting issuer of that type or class, the person and any person acting jointly or in concert with the person shall

(a) provide such disclosure as is prescribed by regulation, and

(b) comply with any prohibitions in the regulations on transactions in securities of the reporting issuer.

116 The heading “News releases” preceding section 127 of the Act is repealed.

117 Section 127 of the Act is repealed.

118 The heading “Duplicate reports not required” preceding section 128 of the Act is repealed.

119 Section 128 of the Act is repealed.

120 Section 129 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

129(1) Where the Commission is of the opinion that a person has not complied with or is not complying with this Part or the regulations relating to this Part, the Commission may, subject to such terms and conditions as it considers appropriate, make an order

(a) restraining the distribution of any document or any communication used or issued in connection with a take-over bid or issuer bid,

(b) requiring an amendment to or variation of any document or any communication used or issued in connection with a take-over bid or issuer bid and requiring the distribution of any amended, varied or corrected document or communication, and

(c) directing any person to comply with this Part or the regulations relating to this Part or restraining any person from contravening this Part or the regulations relating to this Part and directing the directors and officers of the person to cause the person to comply with or to cease contravening this Part or the regulations relating to this Part.

(b) by repealing subsection (2) and substituting the following:

129(2) Where the Commission is of the opinion that to do so would not be prejudicial to the public interest, the Commission may, subject to such terms and conditions as it considers appropriate, make an order exempting, in whole or in part, a person or class of persons from any of the requirements of this Part or the regulations relating to this Part.

121 Subsection 130(2) of the Act is amended

(a) in the portion preceding paragraph (a) by striking out “may make an interim or final order” and substituting “may make such order at it thinks fit, including, without limiting the generality of the foregoing, an order”;

(b) in paragraph (d) of the English version by adding “and” at the end of the paragraph;

(d) by repealing paragraph (f).

122 The heading “Definitions” preceding section 131 of the Act is repealed.

123 Section 131 of the Act is repealed.

124 The heading “Definition of “investment”” preceding section 132 of the Act is repealed.

125 Section 132 of the Act is repealed.

126 The heading “Significant interest, substantial security holder and beneficial ownership” preceding section 133 of the Act is repealed.

127 Section 133 of the Act is repealed.

128 The heading “Related person and change in beneficial ownership” preceding section 134 of the Act is repealed.

129 Section 134 of the Act is repealed.

130 The heading “Insider report” preceding section 135 of the Act is repealed and the following is substituted

Insider reporting

131 Section 135 of the Act is repealed and the following is substituted:

135 Unless exempted under the regulations, an insider of a reporting issuer shall provide such disclosure as is prescribed by regulation.

132 The heading “Report of transfer by insider” preceding section 136 of the Act is repealed.

133 Section 136 of the Act is repealed.

134 The heading “Investments of mutual funds in New Brunswick” preceding section 137 of the Act is repealed.

135 Section 137 of the Act is repealed.

136 The heading “Indirect investment” preceding section 138 of the Act is repealed.

137 Section 138 of the Act is repealed.

138 The heading “Order for non-application of section 137 or 138” preceding section 139 of the Act is repealed.

139 Section 139 of the Act is repealed.

140 The heading “Exception to paragraph 133(c)” preceding section 140 of the Act is repealed.

141 Section 140 of the Act is repealed.

142 The heading “Fees on investment” preceding section 141 of the Act is repealed.

143 Section 141 of the Act is repealed.

144 The heading “Standard of care for management of mutual fund” preceding section 142 of the Act is repealed and the following is substituted:

Standard of care for management of investment fund

145 Section 142 of the Act is repealed and the following is substituted:

142 Every investment fund manager shall

(a) exercise the powers and discharge the duties of its office honestly, in good faith and in the best interests of the investment fund, and

(b) exercise the degree of care, diligence and skill that a reasonably prudent person would exercise in the circumstances.

146 The heading “Filing by mutual fund managers” preceding section 143 of the Act is repealed.

147 Section 143 of the Act is repealed.

148 The heading “Prohibited transactions” preceding section 144 of the Act is repealed.

149 Section 144 of the Act is repealed.

150 The heading “Trades by mutual fund insiders” preceding section 145 of the Act is repealed.

151 Section 145 of the Act is repealed.

152 The heading “Filing of reports in another jurisdiction” preceding section 146 of the Act is repealed.

153 Section 146 of the Act is repealed.

154 The heading “Prohibited trading” preceding section 147 of the Act is repealed and the following is substituted:

Insider trading, informing and recommending prohibited

155 Section 147 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

147(1) The following definitions apply in this section.

“issuer” means (émetteur)

(a) a reporting issuer, or

(b) any other issuer whose securities are publicly traded.

“person in a special relationship with an issuer” means (personne ayant des rapports particuliers avec un émetteur)

(a) a person who is an insider, affiliate or associate of

(i) the issuer,

(ii) a person who is proposing to make a take-over bid, as defined in section 106, for the securities of the issuer, or

(iii) a person who is proposing to become a party to a reorganization, amalgamation, merger or arrangement or similar business combination with the issuer or to acquire a substantial portion of its property,

(b) a person who is engaging in or proposes to engage in any business or professional activity with or on behalf of the issuer or with or on behalf of a person described in subparagraph (a)(ii) or (iii),

(c) a person who is a director, officer or employee of the issuer or of a person described in subparagraph (a)(ii) or (iii) or paragraph (b),

(d) a person who learned of a material fact or material change with respect to the issuer while the person was a person described in paragraph (a), (b) or (c), or

(e) a person who learns of a material fact or material change with respect to the issuer from any other person described in this subsection, including a person described in this paragraph, and knows or ought reasonably to have known that the other person is a person in such a relationship.

(b) by repealing subsection (2) and substituting the following:

147(2) No person in a special relationship with an issuer, shall, with knowledge of a material fact or material change with respect to the issuer that has not been generally disclosed,

(a) subscribe to, purchase or trade in the securities of the issuer,

(b) acquire, dispose of, or exercise a put or call option or other right or obligation to purchase or trade in the securities of the issuer,

(c) enter into a related financial instrument or acquire or dispose of rights or obligations under a related financial instrument, or

(d) change the person’s

(i) direct or indirect beneficial ownership of, or control or direction over,

(A) securities of the issuer, or

(B) a put or call option or other right or obligation to purchase or trade in the securities of the issuer, or

(ii) interest in, or rights or obligations associated with, a related financial instrument.

(d) by repealing subsection (4) and substituting the following:

147(4) No issuer and no person in a special relationship with an issuer shall inform, other than in the necessary course of business, another person of a material fact or material change with respect to the issuer before the material fact or material change has been generally disclosed.

(e) by adding after subsection (4) the following:

147(4.1) No issuer and no person in a special relationship with an issuer with knowledge of a material fact or material change with respect to the issuer that has not been generally disclosed shall recommend or encourage another person to

(a) subscribe to, purchase or trade in the securities of the issuer,

(b) acquire, dispose of, or exercise a put or call option or other right or obligation to purchase or trade in the securities of the issuer,

(c) enter into a related financial instrument or acquire or dispose of rights or obligations under a related financial instrument, or

(d) change the person’s

(i) direct or indirect beneficial ownership of, or control or direction over,

(A) securities of the issuer, or

(B) a put or call option or other right or obligation to purchase or trade in the securities of the issuer, or

(ii) interest in, or rights or obligations associated with, a related financial instrument.

(f) by repealing subsection (5) and substituting the following:

147(5) No person who proposes to make a take-over bid, as defined in section 106, for the securities of an issuer, to become a party to a reorganization, amalgamation, merger, arrangement or similar business combination with an issuer or to acquire a substantial portion of the property of an issuer shall inform another person of a material fact or material change with respect to the issuer before the material fact or material change has been generally disclosed unless the information is given in the necessary course of business to effect the take-over bid, business combination or acquisition, as the case may be.

(g) by repealing subsection (6).

156 The Act is amended by adding after section 147 the following:

Defences for insider trading, informing and recommending

147.1(1) No person shall be found to have contravened subsection 147(2) if the person proves that at the time of the transaction described in that subsection the person reasonably believed that the other party to the transaction had knowledge of the material fact or material change.

147.1(2) No person shall be found to have contravened subsection 147(4), (4.1) or (5) if the person proves that at the time of the giving of the information described in subsection 147(4) or (5) or at the time of the making of the recommendation or giving of the encouragement described in subsection 147(4.1), as the case may be, the person reasonably believed that the person informed of the material fact or material change or the person who received the recommendation or encouragement had knowledge of the material fact or material change.

147.1(3) No person, other than an individual, that enters into a transaction described in subsection 147(2) with knowledge of a material fact or material change with respect to an issuer that has not been generally disclosed shall be found to have contravened that subsection if the person proves that

(a) the person had knowledge of the material fact or material change only because the material fact or material change was known to one or more of the person’s directors, officers, partners, employees or agents,

(b) the decision to enter into the transaction was made by one or more of the person’s directors, officers, partners, employees or agents and none of the individuals who participated in the decision had actual knowledge of the material fact or material change, and

(c) none of the person’s directors, officers, partners, employees or agents that had actual knowledge of the material fact or material change gave any advice related to the transaction based on the actual knowledge to the person’s directors, officers, partners, employees or agents that made or participated in the decision to enter into the transaction.

147.1(4) In determining if a person has established a defence under subsection (2), it will be relevant whether and to what extent the person has implemented and maintained reasonable policies and procedures to prevent contraventions of subsection 147(2).

147.1(5) No person who enters into a transaction described in subsection 147(2) with knowledge of a material fact or material change with respect to an issuer that has not been generally disclosed shall be found to have contravened that subsection if the person proves that

(a) the person entered into the transaction because of the person’s participation in a written automatic dividend reinvestment plan or a written automatic purchase plan or another similar written automatic plan that the person entered into before having knowledge of the material fact or material change,

(b) the person entered into the transaction as a result of a written legal obligation to do so and that obligation was incurred before the person acquired knowledge of the material fact or material change, or

(i) as agent for another person under specific unsolicited instructions given by that other person to enter into the specified transaction,

(ii) as agent for another person under specific solicited instructions given by that other person to enter into the specified transaction before the person who acted as agent had knowledge of the material fact or material change,

(iii) as agent or trustee for another person because of that other person’s participation in a written automatic dividend reinvestment plan or a written automatic purchase plan or another similar written automatic plan, or

(iv) as agent or trustee for another person to fulfil in whole or in part a written legal obligation of that other person.

Front running

147.2(1) In this section and section 147.3, “material order information” means information that relates to any of the following and that, if disclosed, would reasonably be expected to affect the market price of the security:

(a) the intention of a person responsible for making decisions about an investment portfolio to trade a security on behalf of the investment portfolio;

(b) the intention of a registrant trading in securities on behalf of an investment portfolio to trade a security on behalf of the investment portfolio; or

147.2(2) A person with knowledge of material order information shall not, and shall not recommend or encourage another person to,

(a) subscribe to, purchase or trade in the securities to which the material order information relates,

(b) acquire, dispose of, or exercise a put or call option or other right or obligation to purchase or trade in the securities,

(c) enter into a related financial instrument or acquire or dispose of rights or obligations under a related financial instrument, or

(d) change the person’s

(i) direct or indirect beneficial ownership of, or control or direction over,

(A) the securities, or

(B) a put or call option or other right or obligation to purchase or trade in the securities, or

(ii) interest in, or rights or obligations associated with, a related financial instrument.

147.2(3) No person with knowledge of material order information shall inform another person of the material order information unless it is necessary in the course of the person’s business.

Defences for front running

147.3(1) No person shall be found to have contravened subsection 147.2(2) if the person proves that at the time of the transaction described in that subsection or at the time of the making of the recommendation or giving of the encouragement described in that subsection, as the case may be, the person reasonably believed that the other party to the transaction or the person who received the recommendation or encouragement had knowledge of the material order information.

147.3(2) No person shall be found to have contravened subsection 147.2(3) if the person proves that at the time of the giving of the information described in that subsection the person reasonably believed that the person informed of the material order information had knowledge of the material order information.

147.3(3) No person, other than an individual, that takes an action described in subsection 147.2(2) or (3) with knowledge of material order information shall be found to have contravened that subsection if the person proves that

(a) the person had knowledge of the material order information only because the material order information was known to one or more of the person’s directors, officers, partners, employees or agents,

(b) the decision to act was made by one or more of the person’s directors, officers, partners, employees or agents and none of the individuals who participated in the decision had actual knowledge of the material order information, and

(c) none of the person’s directors, officers, partners, employees or agents that had actual knowledge of the material order information gave any advice related to the action based on the actual knowledge to the person’s directors, officers, partners, employees or agents that made or participated in the decision to act.

147.3(4) In determining if a person has established a defence under subsection (2), it will be relevant whether and to what extent the person has implemented and maintained reasonable policies and procedures to prevent contraventions of subsections 147.2(2) and (3).

147.3(5) No person who takes an action described in subsection 147.2(2) or (3) with knowledge of material order information shall be found to have contravened that subsection if the person proves that

(a) the person acted because of the person’s participation in a written automatic dividend reinvestment plan or a written automatic purchase plan or another similar written automatic plan that the person entered into before having knowledge of the material order information,

(b) the person acted under a written legal obligation to take the action and that obligation was incurred before the person acquired knowledge of the material order information, or

(i) as agent for another person under specific unsolicited instructions given by that other person to take the specified action,

(ii) as agent for another person under specific solicited instructions given by that other person to take the specified action before the person who acted as agent had knowledge of the material order information,

(iv) as agent or trustee for another person to fulfil in whole or in part a written legal obligation of that other person.

157 Section 148 of the Act is amended

(a) by repealing subsection (2);

(b) in subsection (3) by striking out “or (2)”;

148(4) An order under subsection (1) may be retroactive in its operation.

158 The Act is amended by adding after section 148 the following:

PART 10.1

GOVERNANCE AND OTHER REQUIREMENTS

Governance of reporting issuers

148.1(1) In this section, “person in a special relationship with a reporting issuer” means

(a) a person who is an insider, affiliate or associate of

(i) the reporting issuer,

(ii) a person who is proposing to make a take-over bid, as defined in section 106, for the securities of the reporting issuer, or

(iii) a person who is proposing to become a party to a reorganization, amalgamation, merger or arrangement or similar business combination with the reporting issuer or to acquire a substantial portion of its property,

(b) a person who is engaging in or proposes to engage in any business or professional activity with or on behalf of the reporting issuer or with or on behalf of a person described in subparagraph (a)(ii) or (iii),

(c) a person who is a director, officer or employee of the reporting issuer or of a person described in subparagraph (a)(ii) or (iii) or paragraph (b),

(d) a person who learned of a material fact or material change with respect to the reporting issuer while the person was a person described in paragraph (a), (b) or (c), or

(e) a person who learns of a material fact or material change with respect to the reporting issuer from any other person described in this subsection, including a person described in this paragraph, and knows or ought reasonably to have known that the other person is a person in such a relationship.

148.1(2) For the purposes of this Act, a reporting issuer shall comply with such requirements as are prescribed by regulation with respect to the governance of reporting issuers, including requirements relating to

(a) the composition of its board of directors and qualifications for membership on the board, including matters respecting the independence of members,

(b) the establishment of specified types of committees of the board of directors, the mandate, functioning and responsibilities of each committee, the composition of each committee and the qualifications for membership on the committee, including matters respecting the independence of members,

(c) the establishment and enforcement of a code of business conduct and ethics applicable to its directors, officers and employees and applicable to persons in a special relationship with the reporting issuer, including the minimum requirements for such a code, and

(d) procedures to regulate conflicts of interest between the interests of the reporting issuer and those of a director or officer of the issuer.

Oversight of investment funds

148.2(1) If required to do so by the regulations, an investment fund shall establish and maintain a body for the purposes of overseeing activities of the investment fund and the investment fund manager, reviewing or approving matters prescribed by regulation affecting the investment fund and disclosing information to security holders of the fund, to the investment fund manager and to the Commission.

148.2(2) The body has the powers and duties prescribed by regulation.

159 Section 149 of the Act is amended

(a) in subsection (1)

(i) by repealing paragraph (b) and substituting the following:

(b) every underwriter that is in a contractual relationship with the issuer or selling security holder on whose behalf the distribution is made,

(ii) in paragraph (d) by striking out “consent has been filed as required by the regulations” and substituting “consent to disclosure of information in the prospectus has been filed”;

(b) in subsection (3) of the French version by striking out “n’est responsable” and substituting “ne peut être tenue responsable”;

(i) in the portion preceding paragraph a) by striking out “n’est responsable” and substituting “ne peut être tenue responsable”;

(ii) in paragraph c) by striking out “sous l’autorité d’un expert” and substituting “sur l’autorité d’un expert”;

(iii) in paragraph d) by striking out “sous son autorité” and substituting “sur son autorité”;

(d) in subsection (5) of the French version in the portion preceding paragraph a) by striking out “n’est responsable” and substituting “ne peut être tenue responsable”;

(e) in subsection (6) of the French version by striking out the portion preceding paragraph a) and substituting the following:

149(6) Une personne, à l’exclusion de l’émetteur ou du détenteur qui a vendu les valeurs mobilières, ne peut être tenue responsable aux termes du paragraphe (1) ou (2) à l’égard d’une partie du prospectus ou de sa modification qui n’est pas présentée comme étant préparée sur l’autorité d’un expert ni comme étant une copie ou un extrait d’un rapport, d’une opinion ou d’une déclaration d’un expert que dans les cas suivants :

(f) in subsection (7) of the French version by striking out “n’est responsable” and substituting “ne peut être tenu responsable”;

(g) in subsection (8) of the French version by striking out “n’est pas responsable” and substituting “ne peut être tenu responsable”.

160 Section 150 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “and where any information relating to an offering provided to the purchaser of the securities contains a misrepresentation” and substituting “and where an offering memorandum provided to the purchaser of the securities contains a misrepresentation”;

(b) in subsection (2) of the French version by striking out “n’est responsable” and substituting “ne peut être tenue responsable”;

(c) in subsection (3) of the French version by striking out “n’est pas responsable” and substituting “ne peut être tenu responsable”.

161 Section 151 of the Act is amended

(a) by repealing paragraph (1)(b) and substituting the following:

(b) where a prospectus is used in connection with the trade, every underwriter that is in a contractual relationship with the issuer or selling security holder on whose behalf the distribution is made,

(b) in subsection (4) of the French version by striking out “n’est pas responsable” and substituting “ne peut être tenue responsable”;

(c) in subsection (5) of the French version in the portion preceding paragraph a) by striking out “n’est pas responsable” and substituting “ne peut être tenue responsable”;

(d) in subsection (6) of the French version in the portion preceding paragraph a) by striking out “n’est responsable” and substituting “ne peut être tenue responsable”;

(e) in subsection (7) of the French version by striking out the portion preceding paragraph a) and substituting the following:

151(7) Une personne, à l’exclusion de l’émetteur ou du détenteur qui a vendu les valeurs mobilières, ne peut être tenue responsable aux termes du paragraphe (1) ou (3) à l’égard d’une partie d’une annonce publicitaire ou d’une documentation commerciale qui n’est pas présentée comme étant préparée sur l’autorité d’un expert ni comme étant une copie ou un extrait d’un rapport, d’une opinion ou d’une déclaration d’un expert que dans les cas suivants :

(f) in subsection (8) of the French version by striking out “n’est pas responsable” and substituting “ne peut être tenue responsable”;

(g) in subsection (9) of the French version by striking out “n’est responsable” and substituting “ne peut être tenu responsable”;

(h) in subsection (10) of the French version by striking out “n’est pas responsable” and substituting “ne peut être tenu responsable”.

162 Section 152 of the French version of the Act is amended

(a) in subsection (2) by striking out “n’est pas responsable” and substituting “ne peut être tenue responsable”;

(b) in subsection (3) by striking out “n’est pas responsable” and substituting “ne peut être tenue responsable”;

(d) in subsection (6) by striking out “n’est pas responsable” and substituting “ne peut être tenu responsable”.

163 Section 153 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “Where a take-over bid circular delivered to the security holders of an offeree issuer as required by Part 9 or any notice of change or variation in respect of a take-over bid circular contains a misrepresentation, every such security holder” and substituting “Where a take-over bid circular or any notice of change or variation in respect of a take-over bid circular is required to be sent under the regulations and that document contains a misrepresentation, a person to whom the circular or notice was sent”;

(b) in subsection (2) by striking out “Where a directors’ circular or an individual director’s or officer’s circular delivered to the security holders of an offeree issuer as required by Part 9 or any notice of change or variation in respect of such circular contains a misrepresentation, every such security holder” and substituting “Where a directors’ circular or an individual director’s or officer’s circular or any notice of change or variation in respect of such circular is required to be sent under the regulations and that document contains a misrepresentation, a person to whom the circular or notice was sent”;

(c) in subsection (4) of the French version by striking out “n’est pas responsable” and substituting “ne peut être tenue responsable”;

(d) in subsection (5)

(i) in the portion preceding paragraph a) of the French version by striking out “n’est pas responsable” and substituting “ne peut être tenue responsable”;

(ii) by repealing paragraph (a) and substituting the following:

(a) that the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, or any notice of change or variation in respect of such circular was sent without the person’s knowledge or consent and that, on becoming aware of it, the person gave reasonable general notice that it was so sent,

(iii) by repealing paragraph (b) and substituting the following:

(b) that, after the sending of the take-over bid circular, issuer bid circular, directors’ circular or individual director’s or officer’s circular, as the case may be, or any notice of change or variation in respect of such circular, on becoming aware of any misrepresentation in the take-over bid circular, issuer bid circular, directors’ circular, individual director’s or officer’s circular or notice of change or variation, the person withdrew the person’s consent to it and gave reasonable general notice of the withdrawal and the reason for the withdrawal,

(iv) in paragraph c) of the French version by striking out “étant préparée par un expert” and substituting “étant préparée sur l’autorité d’un expert”;

(e) in subsection (6) of the French version by striking out “n’est responsable” and substituting “ne peut être tenue responsable”;

(f) in subsection (7) of the French version by striking out the portion preceding paragraph a) and substituting the following:

153(7) Une personne, à l’exclusion du pollicitant, ne peut être tenue responsable aux termes du paragraphe (1), (2) ou (3) à l’égard d’une partie de la circulaire qui n’est pas présentée comme étant préparée sur l’autorité d’un expert ni comme étant une copie ou un extrait d’un rapport, d’une opinion ou d’une déclaration d’un expert que dans les cas suivants :

(g) in subsection (9) of the French version by striking out “n’est pas responsable” and substituting “ne peut être tenu responsable”;

(h) by repealing subsection (10).

164 The Act is amended by adding after section 153 the following:

Liability for misrepresentation in disclosure document prescribed by regulation

153.1(1) If a disclosure document prescribed by regulation contains a misrepresentation, a purchaser who purchases securities offered by the disclosure document shall be deemed to have relied on the misrepresentation if it was a misrepresentation at the time of purchase and has a right of action for damages against

(a) the issuer,

(b) every director of the issuer at the date of the disclosure document, and

153.1(2) The purchaser may elect to exercise a right of rescission against the issuer, in which case the purchaser has no right of action for damages against the issuer.

153.1(3) No person is liable under subsection (1) if the person proves that the purchaser purchased the securities with knowledge of the misrepresentation.

153.1(4) No person is liable under subsection (1) if the person proves

(a) that the disclosure document was delivered to purchasers without the person’s knowledge or consent and that, on becoming aware of its delivery, the person gave written notice to the issuer that it was delivered without the person’s knowledge or consent,

(b) that, on becoming aware of any misrepresentation in the disclosure document, the person withdrew the person’s consent to the disclosure document and gave written notice to the issuer of the withdrawal and the reason for the withdrawal, or

(c) that, with respect to any part of the disclosure document purporting to be made on the authority of an expert or purporting to be a copy of, or an extract from, a report, opinion or statement of an expert, the person had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that the part of the disclosure document did not fairly represent the report, opinion or statement of the expert or was not a fair copy of, or extract from, the report, opinion or statement of the expert.

153.1(5) No person is liable under subsection (1) with respect to any part of a disclosure document not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, a report, opinion or statement of an expert unless the person

(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or

(b) believed that there had been a misrepresentation.

153.1(6) Subsections (4) and (5) do not apply to the issuer.

153.1(7) In an action for damages under subsection (1), the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the securities as result of the misrepresentation relied on.

153.1(8) All or any one or more of the persons referred to in subsection (1) are jointly and severally liable, and every person who becomes liable to make any payment under this section may recover a contribution from any person who, if sued separately, would have been liable to make the same payment unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.

153.1(9) In no case shall the amount recoverable under this section exceed the price at which the securities were offered to the public.

153.1(10) The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the purchaser may have at law.

153.1(11) If a misrepresentation is contained in a document incorporated by reference in, or deemed incorporated into, a disclosure document, the misrepresentation shall be deemed to be contained in the disclosure document.

165 Section 154 of the Act is amended by striking out “sections 149, 151 and 153” and substituting “sections 149, 151, 153 and 153.1”.

166 The Act is amended by adding after section 154 the following:

Defence to liability for misrepresentation

154.1(1) A person is not liable in an action under section 149, 150, 153 or 153.1 for a misrepresentation in forward-looking information if the person proves all of the following:

(a) that the document containing the forward-looking information contained, proximate to that information,

(i) reasonable cautionary language identifying the forward-looking information as such, and identifying material factors that could cause actual results to differ materially from a conclusion, forecast or projection in the forward-looking information, and

(ii) a statement of the material factors or assumptions that were applied in drawing a conclusion or making a forecast or projection set out in the forward-looking information, and

(b) that the person had a reasonable basis for drawing the conclusions or making the forecasts and projections set out in the forward-looking information.

154.1(2) Subsection (1) does not relieve a person of liability respecting forward-looking information in a financial statement or in a document released in connection with an initial public offering.

167 Section 155 of the Act is repealed and the following is substituted:

155 A purchaser of a security in respect of which a prospectus or an amendment to a prospectus was required to be filed but was not filed in compliance with this Act or the regulations, a purchaser of a security to whom a prospectus or an amendment to a prospectus was required to be delivered but was not delivered in compliance with this Act or the regulations, a purchaser of a security to whom an offering memorandum or an amendment to an offering memorandum was required to be sent but was not sent in compliance with the regulations or a security holder to whom a take-over bid and take-over bid circular or an issuer bid and an issuer bid circular, or any notice of change or variation to any such bid or circular, were required to be sent but were not sent in compliance with this Act or the regulations has a right of action for rescission or damages against the dealer or offeror who failed to comply with the applicable requirement.

168 The heading “Liability where material fact or material change undisclosed” preceding section 157 of the Act is repealed and the following is substituted:

Liability for insider trading, informing and recommending and for front running

169 Section 157 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

157(1) The following definitions apply in this section.

“issuer” means an issuer as defined in subsection 147(1). (émetteur)

“material order information” means material order information as defined in subsection 147.2(1). (renseignement sur un ordre important)

“person in a special relationship with an issuer” means a “person in a special relationship with an issuer” as defined in subsection 147(1). (personne ayant des rapports particuliers avec un émetteur)

(b) by repealing subsection (2) and substituting the following:

157(2) Every person in a special relationship with an issuer who contravenes subsection 147(2) is liable to compensate the other party to the transaction described in that subsection for damages as a result of the transaction unless the person in the special relationship with the issuer proves

(a) that the person reasonably believed that the material fact or material change had been generally disclosed, or

(b) that the material fact or material change was known or ought reasonably to have been known to the other party to the transaction.

(i) by repealing paragraph (a) and substituting the following:

(a) issuer,

(ii) in paragraph (b) by striking out “a reporting issuer” and substituting “an issuer”;

(iii) in paragraph (c) by striking out “a reporting issuer” wherever it appears and substituting “an issuer”;

(iv) in the portion following paragraph (c) by striking out “reporting issuer” wherever it appears and substituting “issuer”;

(d) by repealing paragraph (4)(c) and substituting the following:

(c) in the case of an action against an issuer or a person in a special relationship with the issuer, the information was given in the necessary course of business, or

(e) by adding after subsection (4) the following:

157(4.1) Every issuer and every person in a special relationship with an issuer who contravenes subsection 147(4.1) is liable to compensate the person who received the recommendation or encouragement described in that subsection for damages as a result of the recommendation or encouragement unless the person who made the recommendation or gave the encouragement proves

(a) that, at the time of the making of the recommendation or giving of the encouragement described in subsection 147(4.1), the person who recommended or encouraged reasonably believed the material fact or material change had been generally disclosed, or

(b) that the material fact or material change was, at the time of the making of the recommendation or giving of the encouragement, known or ought reasonably to have been known to the person who received the recommendation or encouragement described in subsection 147(4.1).

157(4.2) A person who knows of material order information and contravenes subsection 147.2(2) or (3) is liable to account to the person to whom the material order information relates for any benefit or advantage received or receivable by the first person by reason of the contravention.

(f) by repealing subsection (6) and substituting the following:

157(6) Every person who is an insider, affiliate or associate of an issuer who

(a) enters into a transaction described in subsection 147(2) with knowledge of a material fact or material change with respect to the issuer that has not been generally disclosed,

(b) informs another person, other than in the necessary course of business, of a material fact or material change with respect to the issuer that has not been generally disclosed, or

(c) with knowledge of a material fact or material change with respect to the issuer that has not been generally disclosed, recommends or encourages another person to enter into a transaction described in subsection 147(4.1),

is accountable to the issuer for any benefit or advantage received or receivable by the person as a result of the transaction, information provided, recommendation or encouragement, as the case may be, unless the person proves that the person reasonably believed that the material fact or material change had been generally disclosed.

(g) in subsection (7) by striking out “person in a special relationship with a reporting issuer is liable under subsection (2) or (3)” and substituting “person in a special relationship with an issuer is liable under subsection (2), (3) or (4.1)”;

(h) in subsection (8) by striking out “subsection (2) or (3)” and substituting “subsection (2), (3) or (4.1)”;

(i) by repealing subsection (9) and substituting the following:

157(9) For the purposes of this section, a security of the issuer shall be deemed to include

(a) a put, call, option or other right or obligation to purchase or sell securities of the issuer, or

(b) a security, the market price of which varies materially with the market price of the securities of the issuer.

170 Section 158 of the Act is amended

(a) in subsection (1)

(i) by striking out the portion preceding paragraph (a) and substituting the following:

158(1) On the application of the Commission or of any person who was at the time of a transaction referred to in subsection 157(2) or (3) or at the time of the making of the recommendation or giving of the encouragement referred to in subsection 157(4.1) or is at the time of the application a security holder of the issuer, the Court of Queen’s Bench may make an order, on terms as to security for costs or otherwise as to the Court of Queen’s Bench seems proper, requiring the Commission or authorizing the person or the Commission to commence, commence and prosecute or continue an action in the name of and on behalf of the issuer to enforce the liability created by subsection 157(6) if satisfied

(ii) in paragraph (a) by striking out “reporting issuer” and substituting “issuer”;

(iii) in paragraph (b) in the portion preceding subparagraph (i) by striking out “reporting issuer” and substituting “issuer”;

(b) by repealing subsection (3) and substituting the following:

158(3) Where an action under subsection 157(5) or (6) is commenced, is commenced and prosecuted or is continued by a board of directors of an issuer, on motion to the Court of Queen’s Bench, the Court of Queen’s Bench may order that the costs properly incurred by the board of directors in commencing, commencing and prosecuting or continuing the action, as the case may be, shall be paid by the issuer, if the Court of Queen’s Bench is satisfied that there were apparent grounds for believing the action was in the best interests of the issuer and the security holders of the issuer.

(i) in the portion preceding paragraph (a) by striking out “reporting issuer” wherever it appears and substituting “issuer”;

(ii) in paragraph (a) by striking out “reporting issuer” and substituting “issuer”;

(iii) in paragraph (b) by striking out “reporting issuer” wherever it appears and substituting “issuer”;

(d) in subsection (5) by striking out “reporting issuer” and substituting “issuer”;

(e) by repealing subsection (6) and substituting the following:

158(6) In determining whether there are apparent grounds for believing that an action or its continuance is in the best interests of an issuer and the security holders of the issuer, the Court of Queen’s Bench shall consider the relationship between the potential benefit to be derived from the action by the issuer and the security holders of the issuer and the cost involved in the prosecution of the action.

(f) in subsection (7) by striking out “reporting issuer” and substituting “issuer”;

(g) in subsection (8) by striking out “reporting issuer” wherever it appears and substituting “issuer”.

171 The heading “Rescission of purchase of mutual fund security” preceding section 160 of the Act is repealed.

172 Section 160 of the Act is repealed.

173 The Act is amended by adding after section 161 the following:

PART 11.1

CIVIL LIABILITY FOR
SECONDARY MARKET DISCLOSURE

Division A

Definitions and Application

Definitions

161.1 The following definitions apply in this Part.

“compensation” means compensation received during the 12-month period immediately preceding the day on which the misrepresentation was made or on which the failure to make timely disclosure first occurred, together with the fair market value of all deferred compensation including, without limiting the generality of the foregoing, options, pension benefits and stock appreciation rights, granted during the same period, valued as of the date that such compensation is awarded. (rémunération)

“core document” means (document essentiel)

(a) a prospectus, a take-over bid circular, an issuer bid circular, a directors’ circular, a notice of change or variation in respect of a take-over bid circular, an issuer bid circular or a directors’ circular, a rights offering circular, management’s discussion and analysis, an annual information form, an information circular, annual financial statements and interim financial statements of the responsible issuer, where used in relation to,

(i) a director of a responsible issuer who is not also an officer of the responsible issuer,

(ii) an influential person, other than an officer of the responsible issuer or an officer of an investment fund manager, if the responsible issuer is an investment fund, or

(iii) a director or officer of an influential person who is not also an officer of the responsible issuer, other than an officer of an investment fund manager,

(b) a prospectus, a take-over bid circular, an issuer bid circular, a directors’ circular, a notice of change or variation in respect of a take-over bid circular, an issuer bid circular or a directors’ circular, a rights offering circular, management’s discussion and analysis, an annual information form, an information circular, annual financial statements, interim financial statements and a report of a material change required by this Act or the regulations of the responsible issuer, where used in relation to,

(i) a responsible issuer or an officer of the responsible issuer,

(ii) an investment fund manager, if the responsible issuer is an investment fund, or

(iii) an officer of an investment fund manager, if the responsible issuer is an investment fund, and

“document” means any written communication, including a communication prepared and transmitted only in electronic form, (document)

(a) that is required to be filed with the Commission, or

(b) that is not required to be filed with the Commission and

(i) that is filed with the Commission,

(ii) that is filed or required to be filed with a government or an agency of a government under applicable securities or corporate law or with any exchange or quotation and trade reporting system under its by-laws or other regulatory instruments or its practices or policies, or

(iii) that is any other communication the content of which would reasonably be expected to affect the market price or value of a security of the responsible issuer.

“expert” means a person whose profession gives authority to a statement made in a professional capacity by the person, including, without limiting the generality of the foregoing, an accountant, actuary, appraiser, auditor, engineer, financial analyst, geologist or lawyer, but not including an entity that is an approved rating organization for the purposes of the regulations. (expert)

“failure to make timely disclosure” means a failure to disclose a material change in the manner and at the time required under this Act or the regulations. (non-respect des obligations d’information occasionnelle)

“influential person” means, in respect of a responsible issuer, (personne influente)

(a) a control person,

(b) a promoter,

(d) an investment fund manager, if the responsible issuer is an investment fund.

“issuer’s security” means a security of a responsible issuer and includes a security, (valeur mobilière d’un émetteur)

(a) the market price or value of which, or payment obligations under which, are derived from or based on a security of the responsible issuer, and

(b) which is created by a person on behalf of the responsible issuer or is guaranteed by the responsible issuer.

“management’s discussion and analysis” means the section of an annual information form, annual report or other document that contains management’s discussion and analysis of the financial condition and results of operations of a responsible issuer as required under New Brunswick securities law. (rapport de gestion)

“public oral statement” means an oral statement made in circumstances in which a reasonable person would believe that information contained in the statement will become generally disclosed. (déclaration orale publique)

“release” means, with respect to information or a document, to file with the Commission or any other securities regulatory authority in Canada or an exchange or to otherwise make available to the public. (publication)

“responsible issuer” means (émetteur responsable)

(a) a reporting issuer, or

(b) any other issuer with a real and substantial connection to New Brunswick, any securities of which are publicly traded.

Non-application of Part

161.11 This Part does not apply

(a) to the purchase of a security offered by a prospectus during the period of distribution,

(b) except as prescribed by regulation, to the acquisition of an issuer’s security pursuant to a distribution

(i) that is exempt from section 71 as provided for under the regulations or in an order made by the Commission under section 80, or

(ii) that is exempt from section 78 as provided for under the regulations or in an order made by the Commission,

(c) to the acquisition or disposition of an issuer’s security in connection with or pursuant to a take-over bid or issuer bid, as defined in section 106, except as prescribed by regulation, or

(d) to such other transactions or class of transactions as are prescribed by regulation.

Division B

Liability

Documents released by or public oral statements by responsible issuer

161.2(1) Where a responsible issuer or a person with actual, implied or apparent authority to act on behalf of a responsible issuer releases a document that contains a misrepresentation, a person who acquires or disposes of the issuer’s security during the period between the time when the document was released and the time when the misrepresentation contained in the document was publicly corrected has, without regard to whether the person relied on the misrepresentation, a right of action for damages against

(a) the responsible issuer,

(b) each director of the responsible issuer at the time the document was released,

(d) each influential person, and each director and officer of an influential person, who knowingly influenced

(i) the responsible issuer or any person acting on behalf of the responsible issuer to release the document, or

(ii) a director or officer of the responsible issuer to authorize, permit or acquiesce in the release of the document, and

(e) each expert where,

(i) the misrepresentation is also contained in a report, statement or opinion made by the expert,

(ii) the document includes, summarizes or quotes from the report, statement or opinion of the expert, and

(iii) if the document was released by a person other than the expert, the expert consented in writing to the use of the report, statement or opinion in the document.

161.2(2) Where a person with actual, implied or apparent authority to speak on behalf of a responsible issuer makes a public oral statement that relates to the business or affairs of the responsible issuer and that contains a misrepresentation, a person who acquires or disposes of the issuer’s security during the period between the time when the public oral statement was made and the time when the misrepresentation contained in the public oral statement was publicly corrected has, without regard to whether the person relied on the misrepresentation, a right of action for damages against

(a) the responsible issuer,

(b) the person who made the public oral statement,

(c) each director and officer of the responsible issuer who authorized, permitted or acquiesced in the making of the public oral statement,

(d) each influential person, and each director and officer of the influential person, who knowingly influenced

(i) the person who made the public oral statement to make the public oral statement, or

(ii) a director or officer of the responsible issuer to authorize, permit or acquiesce in the making of the public oral statement, and

(e) each expert where,

(i) the misrepresentation is also contained in a report, statement or opinion made by the expert,

(ii) the person making the public oral statement includes, summarizes or quotes from the report, statement or opinion of the expert, and

(iii) if the public oral statement was made by a person other than the expert, the expert consented in writing to the use of the report, statement or opinion in the public oral statement.

161.2(3) Where an influential person or a person with actual, implied or apparent authority to act or speak on behalf of the influential person releases a document or makes a public oral statement that relates to a responsible issuer and that contains a misrepresentation, a person who acquires or disposes of the issuer’s security during the period between the time when the document was released or the public oral statement was made and the time when the misrepresentation contained in the document or public oral statement was publicly corrected has, without regard to whether the person relied on the misrepresentation, a right of action for damages against

(a) the responsible issuer, if a director or officer of the responsible issuer, or where the responsible issuer is an investment fund, the investment fund manager, authorized, permitted or acquiesced in the release of the document or the making of the public oral statement,

(b) the person who made the public oral statement,

(c) each director and officer of the responsible issuer who authorized, permitted or acquiesced in the release of the document or the making of the public oral statement,

(d) the influential person,

(e) each director and officer of the influential person who authorized, permitted or acquiesced in the release of the document or the making of the public oral statement, and

(f) each expert where,

(i) the misrepresentation is also contained in a report, statement or opinion made by the expert,

(ii) the document or public oral statement includes, summarizes or quotes from the report, statement or opinion of the expert, and

(iii) if the document was released or the public oral statement was made by a person other than the expert, the expert consented in writing to the use of the report, statement or opinion in the document or public oral statement.

161.2(4) Where a responsible issuer fails to make timely disclosure, a person who acquires or disposes of the issuer’s security between the time when the material change was required to be disclosed in the manner required under this Act or the regulations and the subsequent disclosure of the material change has, without regard to whether the person relied on the responsible issuer having complied with its disclosure requirements, a right of action for damages against

(a) the responsible issuer,

(b) each director and officer of the responsible issuer who authorized, permitted or acquiesced in the failure to make timely disclosure, and

(i) the responsible issuer or any person acting on behalf of the responsible issuer in the failure to make timely disclosure, or

(ii) a director or officer of the responsible issuer to authorize, permit or acquiesce in the failure to make timely disclosure.

161.2(5) In an action under this section, a person who is a director or officer of an influential person is not liable in that capacity if the person is liable as a director or officer of the responsible issuer.

161.2(6) In an action under this section,

(a) multiple misrepresentations having common subject matter or content may, in the discretion of the court, be treated as a single misrepresentation, and

(b) multiple instances of failure to make timely disclosure of a material change or material changes concerning common subject matter may, in the discretion of the court, be treated as a single failure to make timely disclosure.

161.2(7) In an action under subsection (2) or (3), if the person who made the public oral statement had apparent authority, but not implied or actual authority, to speak on behalf of the responsible issuer, no other person is liable with respect to any of the responsible issuer’s securities that were acquired or disposed of before that other person became, or should reasonably have become, aware of the misrepresentation.

Division C

Burden of proof and defences

Non-core documents and public oral statements

161.21(1) In an action under section 161.2 in relation to a misrepresentation in a document that is not a core document, or a misrepresentation in a public oral statement, a person is not liable, subject to subsection (2), unless the plaintiff proves that the person

(a) knew, at the time that the document was released or public oral statement was made, that the document or public oral statement contained the misrepresentation,

(b) at or before the time that the document was released or public oral statement was made, deliberately avoided acquiring knowledge that the document or public oral statement contained the misrepresentation, or

(c) was, through action or failure to act, guilty of gross misconduct in connection with the release of the document or the making of the public oral statement that contained the misrepresentation.

161.21(2) A plaintiff is not required to prove any of the matters set out in subsection (1) in an action under section 161.2 in relation to an expert.

161.21(3) In an action under section 161.2 in relation to a failure to make timely disclosure, a person is not liable, subject to subsection (4), unless the plaintiff proves that the person

(a) knew, at the time that the failure to make timely disclosure first occurred, of the change and that the change was a material change,

(b) at the time or before the failure to make timely disclosure first occurred, deliberately avoided acquiring knowledge of the change or that the change was a material change, or

(c) was, through action or failure to act, guilty of gross misconduct in connection with the failure to make timely disclosure.

161.21(4) A plaintiff is not required to prove any of the matters set out in subsection (3) in an action under section 161.2 in relation to

(a) a responsible issuer,

(b) an officer of a responsible issuer,

(d) an officer of an investment fund manager.

161.21(5) A person is not liable in an action under section 161.2 in relation to a misrepresentation or a failure to make timely disclosure if that person proves that the plaintiff acquired or disposed of the issuer’s security

(a) with knowledge that the document or public oral statement contained a misrepresentation, or

(b) with knowledge of the material change.

161.21(6) A person is not liable in an action under section 161.2 in relation to

(a) a misrepresentation if that person proves that

(i) before the release of the document or the making of the public oral statement containing the misrepresentation, the person conducted or caused to be conducted a reasonable investigation, and

(ii) at the time of the release of the document or the making of the public oral statement, the person had no reasonable grounds to believe that the document or public oral statement contained the misrepresentation, or

(b) a failure to make timely disclosure if that person proves that

(i) before the failure to make timely disclosure first occurred, the person conducted or caused to be conducted a reasonable investigation, and

(ii) the person had no reasonable grounds to believe that the failure to make timely disclosure would occur.

161.21(7) In determining whether an investigation was reasonable under subsection (6), or whether any person is guilty of gross misconduct under subsection (1) or (3), the court shall consider all relevant circumstances, including,

(a) the nature of the responsible issuer,

(b) the knowledge, experience and function of the person,

(d) the presence or absence of another relationship with the responsible issuer, if the person was a director,

(e) the existence, if any, and the nature of any system designed to ensure that the responsible issuer meets its continuous disclosure obligations,

(f) the reasonableness of reliance by the person on the responsible issuer’s disclosure compliance system, on the responsible issuer’s officers and employees and on others whose duties would in the ordinary course have given them knowledge of the relevant facts,

(g) the period within which disclosure was required to be made under the applicable law,

(h) in respect of a report, statement or opinion of an expert, any professional standards applicable to the expert,

(i) the extent to which the person knew, or should reasonably have known, the content and medium of dissemination of the document or public oral statement,

(j) in the case of a misrepresentation, the role and responsibility of the person in the preparation and release of the document or the making of the public oral statement containing the misrepresentation or the ascertaining of the facts contained in that document or public oral statement, and

(k) in the case of a failure to make timely disclosure, the role and responsibility of the person involved in a decision not to disclose the material change.

161.21(8) A person is not liable in an action under section 161.2 in respect of a failure to make timely disclosure if,

(a) the person proves that the material change was disclosed by the responsible issuer in a report filed on a confidential basis with the Commission under the regulations,

(b) the responsible issuer had a reasonable basis for making the disclosure on a confidential basis,

(c) where the information contained in the report filed on a confidential basis remains material, disclosure of the material change was made public promptly when the basis for confidentiality ceased to exist,

(d) the person or responsible issuer did not release a document or make a public oral statement that, due to the undisclosed material change, contained a misrepresentation, and

(e) where the material change became publicly known in a manner other than the manner required under this Act or the regulations, the responsible issuer promptly disclosed the material change in the manner required under this Act or the regulations.

161.21(9) A person is not liable in an action under section 161.2 for a misrepresentation in forward-looking information if the person proves all of the following:

(a) that the document or public oral statement containing the forward-looking information contained, proximate to that information,

(ii) a statement of the material factors or assumptions that were applied in drawing a conclusion or making a forecast or projection set out in the forward-looking information; and

(b) that the person had a reasonable basis for drawing the conclusions or making the forecasts and projections set out in the forward-looking information.

161.21(10) A person shall be deemed to have satisfied the requirements of paragraph (9)(a) with respect to a public oral statement containing forward-looking information if the person who made the public oral statement

(a) made a cautionary statement that the oral statement contained forward-looking information,

(b) stated that

(i) the actual results could differ materially from a conclusion, forecast or projection in the forward-looking information, and

(ii) certain material factors or assumptions were applied in drawing a conclusion or making a forecast or projection as reflected in the forward-looking information, and

(c) stated that additional information about the following is contained in a readily available document or in a portion of such a document and has identified that document or that portion of the document:

(i) the material factors that could cause actual results to differ materially from the conclusion, forecast or projection in the forward-looking information; and

(ii) the material factors or assumptions that were applied in drawing a conclusion or making a forecast or projection as reflected in the forward-looking information.

161.21(11) For the purposes of paragraph (10)(c), a document filed with the Commission or otherwise generally disclosed shall be deemed to be readily available.

161.21(12) Subsection (9) does not relieve a person of liability respecting forward-looking information in a financial statement required to be filed under this Act or the regulations or forward-looking information in a document released in connection with an initial public offering.

161.21(13) A person, other than an expert, is not liable in an action under section 161.2 with respect to any part of a document or public oral statement that includes, summarizes or quotes from a report, statement or opinion made by the expert in respect of which the responsible issuer obtained the written consent of the expert to the use of the report, statement or opinion, if the consent had not been withdrawn in writing before the document was released or the public oral statement was made, if the person proves that

(a) the person did not know and had no reasonable grounds to believe that there had been a misrepresentation in the part of the document or public oral statement made on the authority of the expert, and

(b) the part of the document or oral public statement fairly represented the report, statement or opinion made by the expert.

161.21(14) An expert is not liable in an action under section 161.2 with respect to any part of a document or public oral statement that includes, summarizes or quotes from a report, statement or opinion made by the expert, if the expert proves that the written consent previously provided was withdrawn in writing before the document was released or the public oral statement was made.

161.21(15) A person is not liable in an action under section 161.2 in respect of a misrepresentation in a document, other than a document required to be filed with the Commission, if the person proves that, at the time of release of the document, the person did not know and had no reasonable grounds to believe that the document would be released.

161.21(16) A person is not liable in an action under section 161.2 for a misrepresentation in a document or a public oral statement, if the person proves that

(a) the misrepresentation was also contained in a document filed by or on behalf of another person, other than the responsible issuer, with the Commission or any other securities regulatory authority in Canada or an exchange and was not corrected in another document filed by or on behalf of that other person with the Commission or that other securities regulatory authority in Canada or exchange before the release of the document or the public oral statement made by or on behalf of the responsible issuer,

(b) the document or public oral statement contained a reference identifying the document that was the source of the misrepresentation, and

(c) when the document was released or the public oral statement was made, the person did not know and had no reasonable grounds to believe that the document or public oral statement contained a misrepresentation.

161.21(17) A person, other than the responsible issuer, is not liable in an action under section 161.2 if the misrepresentation or failure to make timely disclosure was made without the knowledge or consent of the person and, if, after the person became aware of the misrepresentation before it was corrected, or the failure to make timely disclosure before disclosure was made in the manner required under this Act or the regulations,

(a) the person promptly notified the board of directors of the responsible issuer or other persons acting in a similar capacity of the misrepresentation or the failure to make timely disclosure, and

(b) if no correction of the misrepresentation or no subsequent disclosure of the material change in the manner required under this Act or the regulations was made by the responsible issuer within 2 business days after the notification under paragraph (a), the person, unless prohibited by law or by professional confidentiality rules, promptly and in writing notified the Commission of the misrepresentation or failure to make timely disclosure.

Division D

Damages

Assessment of damages

161.3(1) Damages shall be assessed in favour of a person that acquired an issuer’s securities after the release of a document or the making of a public oral statement containing a misrepresentation or after a failure to make timely disclosure as follows:

(a) in respect of any of the securities of the responsible issuer that the person subsequently disposed of on or before the tenth trading day after the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, assessed damages shall equal the difference between the average price paid for those securities, including any commissions paid in respect of those securities, and the price received on the disposition of those securities, without deducting any commissions paid in respect of the disposition, calculated taking into account the result of hedging or other risk limitation transactions;

(b) in respect of any of the securities of the responsible issuer that the person subsequently disposed of after the tenth trading day after the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, assessed damages shall equal the lesser of

(i) an amount equal to the difference between the average price paid for those securities, including any commissions paid in respect of those securities, and the price received on the disposition of those securities, without deducting any commissions paid in respect of the disposition, calculated taking into account the result of hedging or other risk limitation transactions, and

(ii) an amount equal to the number of securities that the person disposed of, multiplied by the difference between the average price per security paid for those securities, including any commissions paid in respect of those securities determined on a per security basis, and

(A) if the issuer’s securities trade on a published market, the trading price of the issuer’s securities on the principal market for the 10 trading days following the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, or

(B) if there is no published market, the amount that the court considers just; and

(c) in respect of any of the securities of the responsible issuer that the person has not disposed of, assessed damages shall equal the number of securities acquired, multiplied by the difference between the average price per security paid for those securities, including any commissions paid in respect of the securities determined on a per security basis, and

(i) if the issuer’s securities trade on a published market, the trading price of the issuer’s securities on the principal market for the 10 trading days following the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, or

(ii) if there is no published market, the amount that the court considers just.

161.3(2) Damages shall be assessed in favour of a person that disposed of securities after a document was released or a public oral statement was made containing a misrepresentation or after a failure to make timely disclosure as follows:

(a) in respect of any of the securities of the responsible issuer that the person subsequently acquired on or before the tenth trading day after the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, assessed damages shall equal the difference between the average price received on the disposition of those securities, deducting any commissions paid in respect of the disposition, and the price paid for those securities, without including any commissions paid in respect of those securities, calculated taking into account the result of hedging or other risk limitation transactions;

(b) in respect of any of the securities of the responsible issuer that the person subsequently acquired after the tenth trading day after the public correction of the misrepresentation or the disclosure of the material change in the manner required under this Act or the regulations, assessed damages shall equal the lesser of

(i) an amount equal to the difference between the average price received on the disposition of those securities, deducting any commissions paid in respect of the disposition, and the price paid for those securities, without including any commissions paid in respect of those securities, calculated taking into account the result of hedging or other risk limitation transactions, and

(ii) an amount equal to the number of securities that the person disposed of, multiplied by the difference between the average price per security received on the disposition of those securities, deducting any commissions paid in respect of the disposition determined on a per security basis, and

(B) if there is no published market, the amount that the court considers just; and

(c) in respect of any of the securities of the responsible issuer that the person has not acquired, assessed damages shall equal the number of securities that the person disposed of, multiplied by the difference between the average price per security received on the disposition of those securities, deducting any commissions paid in respect of the disposition determined on a per security basis, and

(ii) if there is no published market, the amount that the court considers just.

161.3(3) Notwithstanding subsections (1) and (2), assessed damages shall not include any amount that the defendant proves is attributable to a change in the market price of securities that is unrelated to the misrepresentation or the failure to make timely disclosure.

Proportionate liability

161.31(1) In an action under section 161.2, the court shall determine, in respect of each defendant found liable in the action, the defendant’s responsibility for the damages assessed in favour of all plaintiffs in the action, and each such defendant shall be liable, subject to the limits set out in subsection 161.4(2), to the plaintiffs for only that portion of the aggregate amount of damages assessed in favour of the plaintiffs that corresponds to that defendant’s responsibility for the damages.

161.31(2) Notwithstanding subsection (1), where, in an action under section 161.2 in respect of a misrepresentation or a failure to make timely disclosure, a court determines that a particular defendant, other than the responsible issuer, authorized, permitted or acquiesced in the making of the misrepresentation or the failure to make timely disclosure while knowing it to be a misrepresentation or a failure to make timely disclosure, the whole amount of the damages assessed in the action may be recovered from that defendant.

161.31(3) Each defendant in respect of whom the court has made a determination under subsection (2) is jointly and severally liable with each other defendant in respect of whom the court has made a determination under subsection (2).

161.31(4) Any defendant against whom recovery is obtained under subsection (2) is entitled to claim contribution from any other defendant who is found liable in the action.

Limits on damages

161.4(1) In this section, “liability limit” means,

(a) in the case of a responsible issuer, the greater of

(i) 5% of its market capitalization, and

(ii) $1,000,000,

(b) in the case of a director or officer of a responsible issuer, the greater of

(i) $25,000, and

(ii) 50% of the aggregate of the director’s or officer’s compensation from the responsible issuer and its affiliates,

(i) 5% of its market capitalization, and

(ii) $1,000,000,

(d) in the case of an influential person who is an individual, the greater of

(i) $25,000, and

(ii) 50% of the aggregate of the influential person’s compensation from the responsible issuer and its affiliates,

(e) in the case of a director or officer of an influential person, the greater of

(i) $25,000, and

(ii) 50% of the aggregate of the director’s or officer’s compensation from the influential person and its affiliates,

(f) in the case of an expert, the greater of

(i) $1,000,000, and

(ii) the revenue that the expert and the affiliates of the expert have earned from the responsible issuer and its affiliates during the 12 months preceding the misrepresentation, and

(g) in the case of each person who made a public oral statement, other than an individual referred to in paragraph (d), (e) or (f), the greater of

(i) $25,000, and

(ii) 50% of the aggregate of the person’s compensation from the responsible issuer and its affiliates.

161.4(2) Notwithstanding section 161.3, the damages payable by a person in an action under section 161.2 is the lesser of

(a) the aggregate damages assessed against the person in the action, and

(b) the liability limit for the person less the aggregate of all damages assessed after appeals, if any, against the person in all other actions brought under section 161.2, and under comparable legislation in other provinces or territories in Canada in respect of that misrepresentation or failure to make timely disclosure, and less any amount paid in settlement of any such actions.

161.4(3) Subsection (2) does not apply to a person, other than the responsible issuer, if the plaintiff proves that the person authorized, permitted, influenced or acquiesced in the making of the misrepresentation or the failure to make timely disclosure while knowing that it was a misrepresentation or a failure to make timely disclosure.

Division E

Procedural Matters

Leave to proceed

161.41(1) No action may be commenced under section 161.2 without leave of the court and the court shall grant leave only where it is satisfied that

(a) the action is being brought in good faith, and

(b) there is a reasonable possibility that the action will be resolved at trial in favour of the plaintiff.

161.41(2) The person making the application for leave to commence an action shall, on filing the Notice of Preliminary Motion and any supporting affidavits under the Rules of Court, send a copy of the Notice of Preliminary Motion and the affidavits to the Commission.

Notice

161.5 A person that has been granted leave to commence an action under section 161.2 shall

(a) promptly issue a news release disclosing that leave has been granted to commence an action under section 161.2,

(b) send a written notice to the Commission within 7 days, together with a copy of the news release, and

Restriction on discontinuation of action

161.51(1) An action under section 161.2 shall not be discontinued or settled without the approval of the court given on such terms and conditions as the court considers appropriate, including, without limiting the generality of the foregoing, terms as to costs.

161.51(2) In determining whether to approve the settlement of the action, the court shall consider, among other things, whether there are any other actions outstanding under section 161.2 or under comparable legislation in other provinces or territories in Canada in respect of the same misrepresentation or failure to make timely disclosure.

Costs

161.6 The prevailing party in an action under section 161.2 is entitled to costs determined by a court in accordance with the Rules of Court.

Power of the Commission

161.7 The Commission may intervene in an action under section 161.2 and in an application for leave under section 161.41.

No derogation from other rights

161.8 The right of action for damages and the defences to an action under section 161.2 are in addition to, and without derogation from, any other rights or defences the plaintiff or defendant may have in an action brought otherwise than under this Part.

Limitation period

161.9 No action shall be commenced under section 161.2,

(a) in the case of misrepresentation in a document, later than the earlier of

(i) 3 years after the date on which the document containing the misrepresentation was first released, and

(ii) 6 months after the issuance of a news release disclosing that leave has been granted to commence an action under section 161.2 or under comparable legislation in another province or territory of Canada in respect of the same misrepresentation,

(b) in the case of a misrepresentation in a public oral statement, later than the earlier of

(i) 3 years after the date on which the public oral statement containing the misrepresentation was made, and

(i) 3 years after the date on which the requisite disclosure was required to be made, and

174 Subsection 162(2) of the Act is amended by striking out “Commission or any member or employee of the Commission” and substituting “Commission, any member of the Commission or any employee of the Commission”.

175 Section 168 is amended

(a) by repealing subsection (1) and substituting the following:

168(1) The Commission, any member of the Commission, any employee of the Commission or any agent of the Commission may conduct a review of the disclosures that have been made or that ought to have been made by a reporting issuer or an investment fund, on a basis to be determined at the discretion of the Commission or the Executive Director.

(b) by repealing subsection (2) and substituting the following:

168(2) A reporting issuer or an investment fund that is subject to a review under this section shall, at such time or times as the Commission or Executive Director requires, deliver to the Commission or Executive Director any information and documents relevant to the disclosures that have been made or that ought to have been made by the reporting issuer or investment fund.

168(4) A reporting issuer or an investment fund, or any person acting on behalf of a reporting issuer or an investment fund, shall not make any representation, orally or in writing, that the Commission has expressed an opinion on or in any way passed judgment on the merits of the disclosure record of the reporting issuer or investment fund.

176 Section 170 of the Act is amended

(a) in paragraph (1)(a) by striking out “of this Act” and substituting “of this Act or the regulations”;

(b) in subsection (2)

(i) in paragraph (c) by striking out “from the requirement to be registered under this Act” and substituting “from the requirement to be registered under this Act or the regulations”;

(ii) in paragraph (e) by striking out “a mutual fund” and substituting “an investment fund”;

(c) in subsection (4) of the French version by striking out “sous forme électronique s’ils existent déjà sous cette forme” and substituting “sur support électronique s’ils existent déjà ainsi”.

177 Paragraph 171(1)(a) of the Act is amended by striking out “of this Act” and substituting “of this Act or the regulations”.

178 Section 177 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

177(1) All information or evidence obtained pursuant to an investigation under this Part, including, without limiting the generality of the foregoing, the fact that an investigation is being conducted, a report referred to in section 176, the name of any person examined or sought to be examined, the nature or content of any questions asked, the nature or content of any demands for the production of any document or other thing or the fact that any document or other thing was produced is confidential and shall not be disclosed by any person except

(a) to the person’s legal counsel,

(b) where authorized in writing by the Executive Director, or

(b) by adding after subsection (1) the following:

177(1.1) Notwithstanding subsection (1), an investigator making an investigation under this Part may make, or authorize the making of, such disclosure of information as may be required for the effectual conduct of the investigation.

(c.1) a supplementary member of the Commission;

179 Section 178 of the Act is repealed and the following is substituted:

178(1) Where the Commission, the Executive Director or an investigator is of the opinion that it would not be prejudicial to the public interest to do so, the Commission, the Executive Director or the investigator, as the case may be, may provide information to and receive information from other securities or financial regulatory authorities, exchanges, self-regulatory bodies or organizations, law enforcement agencies and other governmental or regulatory authorities, both in New Brunswick and elsewhere.

178(2) Any information received by the Commission under subsection (1) is confidential and shall not, except where authorized in writing by the Executive Director, be disclosed by any person other than an investigator.

178(3) The Commission or the Executive Director may enter into an agreement or arrangement for the purposes of subsection (1) with any person referred to in that subsection.

180 Section 179 of the Act is amended

(a) by repealing subsection (1);

(b) by repealing subsection (4) and substituting the following:

179(4) Notwithstanding subsection (2), where a person is convicted of contravening subsection 147(2), the fine to which the person is liable is

(a) not less than the profit made or loss avoided by the person by reason of the contravention, and

(b) not more than the greater of

(i) $1,000,000, and

(ii) an amount equal to triple the profit made or loss avoided by the person by reason of the contravention.

179(5) Notwithstanding subsection (2), where a person is convicted of contravening subsection 147(4), (4.1) or (5), the fine to which the person is liable is

(a) not less than the profit made or loss avoided by any person by reason of the contravention, and

(b) not more than the greater of

(i) $1,000,000, and

(ii) an amount equal to triple the profit made or loss avoided by any person by reason of the contravention.

(d) by adding after subsection (6) the following:

179(7) For the purposes of subsections (4), (5) and (6), the amount of the profit made and loss avoided shall be determined in accordance with the regulations.

181 Subsection 183(1) of the Act is amended in the portion preceding paragraph (a) by striking out “of this Act” and substituting “of this Act or the regulations”.

182 Section 184 of the Act is amended

(a) in subsection (1)

(i) by repealing paragraph (c) and substituting the following:

(i) trading in or purchasing cease in respect of any securities specified in the order, or

(ii) a person specified in the order cease trading in or purchasing securities, specified securities or a class of securities;

(ii) in paragraph (f) by striking out the portion preceding subparagraph (i) and substituting the following:

(f) if the Commission is satisfied that New Brunswick securities law has not been complied with, an order that a release, a report, a preliminary prospectus, a prospectus, a return, a financial statement, an information circular, a take-over bid circular, an issuer bid circular, a notice of change or variation in respect of a take-over bid circular or an issuer bid circular, an offering memorandum, a proxy solicitation or any other document described in the order

(iii) in paragraph (m) by striking out “senior officers” and substituting “officers”;

(iv) by repealing paragraph (n);

(v) in paragraph (o) by striking out the period at the end of the paragraph and substituting a semicolon followed by “or”;

(vi) by adding after paragraph (o) the following:

(p) if a person has not complied with New Brunswick securities law, an order requiring the person to disgorge to the Commission any amounts obtained as a result of the non-compliance.

(b) by adding after subsection (1) the following:

184(1.1) In addition to the power to make orders under subsection (1), the Commission may, after providing an opportunity to be heard, make one or more of the orders referred to in paragraphs (1)(a) to (d) and (1)(g) to (i) against a person if the person

(a) has been convicted in Canada or elsewhere of an offence

(i) arising from a transaction, business or course of action related to securities, or

(ii) under the laws of the jurisdiction respecting trading in securities,

(b) has been found by a court or tribunal of competent jurisdiction in Canada or elsewhere to have contravened or to have failed to comply with the laws of the jurisdiction respecting trading in securities,

(c) is subject to an order made by a securities regulatory authority in Canada or elsewhere imposing sanctions, conditions, restrictions or requirements on the person, or

(d) has agreed with a securities regulatory authority in Canada or elsewhere to be subject to sanctions, conditions, restrictions or requirements.

(c) in subsection (3) by striking out “notwithstanding the filing of a report with it under subsection 89(2)” and substituting “notwithstanding the filing of a report of the material change with it on a confidential basis under the regulations”;

(d) by repealing subsection (4) and substituting the following:

184(4) Unless the parties and the Commission consent, no order shall be made under this section, except under subsection (1.1), without a hearing.

183 Subsection 187(4) of the Act is amended

(a) in paragraph (c) by striking out the portion preceding subparagraph (i) and substituting the following:

(c) an order directing that a release, a report, a preliminary prospectus, a prospectus, a return, a financial statement, an information circular, a take-over bid circular, an issuer bid circular, a notice of change or variation in respect of a take-over bid circular or an issuer bid circular, an offering memorandum, a proxy solicitation or any other document described in the order

(b) in paragraph (o) by striking out “Minister” and substituting “Commission”;

184 The Act is amended by adding after section 188 the following:

Compensation for financial losses

188.1(1) On the application of a claimant, the Executive Director may, when the Commission holds a hearing about a person, request it to make an order that the person pay the claimant compensation for financial loss.

188.1(2) Notwithstanding subsection 193(1), the Executive Director’s decision whether to make a request to the Commission is not reviewable by the Commission.

188.1(3) When so requested by the Executive Director, the Commission may order the person to pay the claimant compensation of not more than $100,000 for the claimant’s financial loss, if, after the hearing, the Commission

(a) determines that the person has contravened or failed to comply

(i) with a provision of this Act that is listed in Schedule A or with any provision of the regulations,

(ii) with a decision of the Commission or the Executive Director,

(iii) with a written undertaking made by the person to the Commission or the Executive Director, or

(iv) with a term or condition imposed on the person’s registration,

(b) is able to determine the amount of the financial loss on the evidence, and

188.1(4) If the contravention or failure occurs in the course of the person’s employment by another person, or while the person is acting on behalf of the other in any other capacity, the Commission may order the other person to jointly and severally pay the claimant the financial compensation ordered under subsection (3).

188.1(5) For the purposes of subsection (4), a person is employed by another person when

(a) an employer-employee relationship exists, or

(b) the first person is registered under this Act or the regulations in an employee, agent or representative capacity through the second person.

188.1(6) The Commission may make an order under subsection (3) notwithstanding the imposition of any other penalty on the person or the making of any other order by the Commission related to the same matter.

188.1(7) The Commission shall not make an order under subsection (3) if the claimant has commenced a civil court proceeding for compensation for the same loss.

188.1(8) A claimant shall inform the Commission without delay after commencing a civil court proceeding for the same loss.

188.1(9) Once the Commission opens a hearing where a claim for compensation for financial loss is one of the matters before it, the claimant is not entitled to commence a civil court proceeding for compensation for the same loss or any unclaimed loss arising out of the same transaction.

188.1(10) Notwithstanding subsection (9), a claimant in whose favour the Commission makes an order under subsection (3) may at any time file a certified copy of the order with the clerk of the Court of Queen’s Bench, and on being filed with the clerk of the Court of Queen’s Bench that order has the same force and effect as if it were a judgment of the Court of Queen’s Bench in favour of the claimant and against the person the Commission ordered to pay the compensation.

Failure to comply with filing requirements

188.2(1) For the reasons set out in subsection (2), the Executive Director, without a hearing, may make an order applicable generally, or to any person or class of persons specified in the order, that trading in a security or class of securities specified in the order shall cease.

188.2(2) The Executive Director may make an order under subsection (1) if the issuer of the security or the person in respect of which the order is made

(a) fails to file a document or record required to be filed under this Act or the regulations, or

(b) files a document or record required to be filed under this Act or the regulations, which document or record has not been completed in accordance with this Act or the regulations.

188.2(3) An order made under subsection (1) shall be revoked as soon as possible after the document or record referred to in the order, completed in accordance with this Act and the regulations, is filed.

188.2(4) The Executive Director shall send to any person directly affected by an order made under subsection (1) a written notice of the order and a written notice of a revocation of the order, if any.

185 Paragraph 190(b) of the Act is amended by striking out “this Act” and substituting “this Act or the regulations”.

186 The heading “Resolution of proceedings” preceding section 191 of the Act is repealed and the following is substituted:

Resolution of administrative proceedings

187 Section 191 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

191(1) Notwithstanding any other provision of this Act or the regulations, an administrative proceeding conducted by the Commission or the Executive Director under this Act or the regulations may be disposed of by

(a) an agreement approved by the Commission or the Executive Director, as the case may be,

(b) a written undertaking made by a person to the Commission or the Executive Director that has been accepted by the Commission or Executive Director, as the case may be, or

(c) if the parties have waived the hearing or compliance with any requirement of this Act or the regulations, a decision of the Commission or Executive Director, as the case may be, made without a hearing or without compliance with the requirement of this Act or the regulations.

(b) in subsection (2) by striking out “as a decision made by the Commission pursuant to any other provision of this Act” and substituting “as a decision made by the Commission or the Executive Director under any other provision of this Act or under the regulations”.

188 Section 192 of the Act is amended by striking out “under this Act” and substituting “under this Act or the regulations”.

189 Section 195 of the Act is amended

(a) in subsection (1) by striking out “within 30 days after the later of the making of the final decision and the issuing of the reasons for the final decision”;

(b) in paragraph (3)b) of the French version by striking out “ainsi que tous motifs” and substituting “ainsi que tous motifs, le cas échéant”;

195(6.1) To the extent that they are not inconsistent with this section, the Rules of Court apply to an appeal under this section.

190 The Act is amended by adding after section 195 the following:

PART 15.1

INTERJURISDICTIONAL COOPERATION

Definitions and interpretation

195.1(1) The following definitions apply in this Part.

“extra-provincial authority” means any power, function or duty of an extra-provincial securities commission that is, or is intended to be, performed or exercised by that commission under the extra-provincial securities laws under which that commission operates. (compétences extraprovinciales)

“extra-provincial securities commission” means a body empowered under the laws of a province or territory of Canada other than New Brunswick to regulate trading in securities or to administer or enforce laws respecting trading in securities. (commission des valeurs mobilières extraprovinciale)

“extra-provincial securities laws” means the laws of a province or territory of Canada other than New Brunswick that, with respect to that province or territory, deal with the regulation of securities markets and the trading in securities in the province or territory. (législation extraprovinciale régissant les valeurs mobilières)

“New Brunswick authority” means any power, function or duty of the Commission or of the Executive Director that is, or is intended to be, performed or exercised by the Commission or the Executive Director under New Brunswick securities law. (compétences du Nouveau-Brunswick)

195.1(2) A reference to an extra-provincial securities commission shall be construed to include, unless otherwise provided in this Act or the regulations,

(a) its delegate, and

(b) any person who in respect of that extra-provincial securities commission exercises a power or performs a duty or function that is substantially similar to a power, duty or function exercised or performed by the Executive Director under this Act or the regulations.

Delegation, transfer and acceptance of authority

195.11(1) Subject to subsection (2) and the regulations, the Commission may by order, for the purposes of this Part,

(a) delegate or transfer any New Brunswick authority to an extra-provincial securities commission, and

(b) accept a delegation or transfer of any extra-provincial authority from an extra-provincial securities commission.

195.11(2) The Commission shall not delegate or transfer any New Brunswick authority under Part 2, this Part or section 200.

Subdelegation

195.2(1) Subject to any restrictions or conditions imposed by an extra-provincial securities commission with respect to the delegation or transfer of an extra-provincial authority to the Commission, the Commission may subdelegate the extra-provincial authority in the manner and to the extent that the Commission or the Executive Director, as the case may be, may delegate any New Brunswick authority under section 16 or 24.

195.2(2) Subject to any restrictions or conditions imposed by the Commission with respect to the delegation or transfer of a New Brunswick authority to an extra-provincial securities commission, nothing in this Part is to be construed as prohibiting the extra-provincial securities commission from subdelegating the New Brunswick authority in the manner and to the extent that the extra-provincial securities commission may delegate its authority under the extra-provincial securities laws under which it operates.

Adoption or incorporation of extra-provincial securities laws

195.3(1) Subject to the regulations, the Commission may by order adopt or incorporate by reference as New Brunswick securities law all or part of any extra-provincial securities laws of a jurisdiction to be applied to

(a) a person or class of persons whose primary jurisdiction is that jurisdiction, or

(b) trades or other activities involving a person or class of persons referred to in paragraph (a).

195.3(2) If the Commission adopts or incorporates by reference any extra-provincial securities laws under subsection (1), it may adopt or incorporate it by reference as amended from time to time, whether before or after the adoption or incorporation by reference, and with the necessary modifications.

Exemptions

195.4 Subject to the regulations, the Commission may make an order exempting, in whole or in part, a person, security or trade or a class of persons, securities or trades from compliance with the requirements of New Brunswick securities law if the person, security or trade or class of persons, securities or trades, as the case may be, satisfies the conditions set out in the order.

Exercise of discretion

195.5(1) Subject to the regulations, if the Commission or the Executive Director is empowered to make a decision regarding a person, trade or security, the Commission or the Executive Director may make a decision on the basis that the Commission or the Executive Director, as the case may be, considers that an extra-provincial securities commission has made a substantially similar decision regarding the person, trade or security.

195.5(2) Notwithstanding any other provision of this Act, but subject to the regulations, the Commission or Executive Director may make a decision referred to in subsection (1) without giving a person affected by the decision an opportunity to be heard.

Immunity regarding New Brunswick authority

195.6(1) The following definitions apply in this section.

“Commission” includes the Executive Director and any member of the Commission, any supplementary member of the Commission and any officer, employee or agent of the Commission. (Commission)

“securities regulatory authority” means (organisme de réglementation des valeurs mobilières)

(a) an extra-provincial securities commission referred to in subsection (3) and includes any member, officer, employee, appointee or agent of that commission,

(b) any person referred to in paragraph (3)(b), or

195.6(2) No action or other proceeding may be brought against the Commission or a securities regulatory authority for anything done or not done, or for any neglect,

(a) in the performance or exercise, or the intended performance or exercise, in good faith of a New Brunswick authority, or

(b) in delegating or transferring in good faith a New Brunswick authority or in accepting in good faith the delegation or transfer of a New Brunswick authority, as the case may be.

195.6(3) This section applies only with respect to a New Brunswick authority

(a) that has been delegated or transferred by the Commission to an extra-provincial securities commission,

(b) that

(i) has been subdelegated by an extra-provincial securities commission to a person other than an exchange, a self-regulatory organization or a quotation and trade reporting system, and

(ii) is, or is intended to be, exercised by the person, or by the person’s subdelegate other than an exchange, a self-regulatory organization or a quotation and trade reporting system, or

(i) has been subdelegated by an extra-provincial securities commission to an exchange, a self-regulatory organization or a quotation and trade reporting system that is recognized or authorized by the extra-provincial securities commission to carry on business, and

(ii) is, or is intended to be, exercised by the exchange, self-regulatory organization or quotation and trade reporting system.

Immunity regarding extra-provincial authority

195.7(1) The following definitions apply in this section.

“Commission” includes the Executive Director and any member of the Commission, any supplementary member of the Commission and any officer, employee or agent of the Commission. (Commission)

“securities regulatory authority” means (organisme de réglementation des valeurs mobilières)

(a) any person referred to in paragraph (3)(b), or

(b) any exchange, self-regulatory organization or quotation and trade reporting system referred to in paragraph (3)(c).

195.7(2) No action or other proceeding may be brought against the Commission or a securities regulatory authority for anything done or not done, or for any neglect,

(a) in the performance or exercise, or the intended performance or exercise, in good faith of any extra-provincial authority, or

(b) in delegating or transferring in good faith an extra-provincial authority or in accepting in good faith the delegation or transfer of an extra-provincial authority, as the case may be.

195.7(3) This section applies only with respect to an extra-provincial authority

(a) that has been delegated or transferred by an extra-provincial securities commission to the Commission,

(b) that

(i) has been subdelegated to a person by the Commission other than to an exchange, a self-regulatory organization or a quotation and trade reporting system, and

(ii) is, or is intended to be, exercised by the person or by the person’s subdelegate other than an exchange, a self-regulatory organization or a quotation and trade reporting system, or

(i) has been subdelegated by the Commission to an exchange, a self-regulatory organization or a quotation and trade reporting system that is recognized under section 35, and

(ii) is, or is intended to be, exercised by the exchange, self-regulatory organization or quotation and trade reporting system.

Appeal regarding extra-provincial decision

195.8(1) The following definitions apply in this section.

“extra-provincial decision” means a decision, ruling, order, direction or other requirement made by an extra-provincial securities commission under a New Brunswick authority delegated or transferred to that extra-provincial securities commission by the Commission. (décision extraprovinciale)

“extra-provincial securities commission” means the extra-provincial securities commission that made the extra-provincial decision that is being appealed under this section. (commission des valeurs mobilières extraprovinciale)

195.8(2) A person that is directly affected by an extra-provincial decision that is final may, with leave of a judge of the Court of Appeal, appeal that extra-provincial decision to the Court of Appeal.

195.8(3) Notwithstanding the fact that an appeal is taken under this section, the extra-provincial decision appealed from takes effect immediately, but the extra-provincial securities commission, the Commission or the Court of Appeal may grant a stay of the extra-provincial decision until disposition of the appeal.

195.8(4) The extra-provincial securities commission is the respondent to an appeal under this section.

195.8(5) A copy of the Notice of Appeal shall, within 15 days after the Notice of Appeal is issued, be personally served on the Commission.

195.8(6) The Commission is entitled to be heard by counsel or otherwise on the argument of an appeal under this section, whether or not the Commission is named as a party to the appeal.

195.8(7) To the extent that they are not inconsistent with this section, the Rules of Court apply to an appeal under this section.

195.8(8) The Court of Appeal may, with respect to an appeal under this section, do the following:

(a) make any order or direction that it considers appropriate with respect to the commencement or conduct of the appeal or any matter relating to the appeal;

(b) confirm, vary or reject the extra-provincial decision;

(c) make any decision that the extra-provincial securities commission could have made and substitute the Court of Appeal’s decision for that of the extra-provincial securities commission.

Appeal regarding decision of the Commission

195.9(1) In this section, “delegated authority” means any extra-provincial authority that is delegated or transferred to the Commission and is accepted by the Commission under section 195.11.

195.9(2) A person that is directly affected by a final decision of the Commission made pursuant to a delegated authority or a final decision of the Commission that is made under section 195.5 may, with leave of a judge of the Court of Appeal, appeal that decision to the Court of Appeal in accordance with section 195, and that section applies with the necessary modifications to the appeal.

195.9(3) A person that has a right to appeal a decision under this section may, subject to any direction of the Court of Appeal, exercise that right of appeal whether or not that person may have a right to appeal that decision to a court in another jurisdiction.

195.9(4) Notwithstanding subsection (3), if a decision referred to in subsection (2) is being appealed to a court in another jurisdiction, the Court of Appeal may stay an appeal under this section pending the determination of the appeal in the other jurisdiction.

191 Paragraph 196(1)(a) of the Act is amended by striking out “under this Act” and substituting “under this Act or the regulations”.

192 Section 198 of the Act is amended

(a) in subsection (3) by striking out “Subject to subsection (4)” and substituting “Subject to subsections (4) and (6)”;

(b) by adding after subsection (4) the following:

198(5) If the Executive Director makes a decision under subsection (4) to hold information or material or a class of information or materials in confidence or not to hold information or material or a class of information or materials in confidence and that decision is reviewed by the Commission under section 193, the decision made by the Commission under subsection 193(6) is final and, notwithstanding subsection 195(1), is not subject to appeal under section 195.

198(6) The Commission may, on the application of an interested person or the Executive Director and after giving the interested person or the Executive Director an opportunity to be heard, make an order directing that any information or class of information or any material or class of materials filed with the Commission or Executive Director under New Brunswick securities law be held in confidence if the Commission is of the opinion that the information or material so held discloses intimate financial, personal or other information and that the desirability of avoiding disclosure of the information in the interests of any person affected outweighs the desirability of adhering to the principle that information or material filed with the Commission or the Executive Director be available to the public for inspection.

198(7) A decision of the Commission made under subsection (4) or an order of the Commission made under subsection (6) is final and, notwithstanding subsection 195(1), is not subject to appeal under section 195.

193 Subsection 199(4) of the Act is amended by striking out “3 consecutive occasions” and substituting “2 consecutive occasions”.

194 Section 200 of the Act is amended

(a) in subsection (1)

(i) by repealing paragraph (a) and substituting the following:

(a) respecting the application for registration and the amendment or reinstatement of registration;

(ii) by adding after paragraph (d) the following:

(d.1) respecting circumstances in which a person is deemed to be registered for the purposes of this Act, the regulations or the rules, including without limiting the generality of the foregoing, the circumstance in which a person is registered under the laws of another jurisdiction in Canada respecting trading in securities;

(iii) in paragraph (k) by striking out “by registrants, including without limiting the generality of the foregoing, authorizing the Commission to require the provision of such information or material as the Commission considers appropriate in the form it requires” and substituting “by registrants or unregistered directors, partners, salespersons, officers and control persons of registrants”;

(iv) in paragraph z) of the French version by striking out “qui font l’objet d’opérations dans le public” and substituting “qui sont cotées à la bourse”;

(v) by adding after paragraph (bb) the following:

(bb.1) prescribing circumstances in which a person is prohibited from trading or purchasing securities or a particular security, including without limiting the generality of the foregoing, the circumstance in which a securities regulatory authority in another jurisdiction has ordered that

(i) a person is prohibited from trading or purchasing securities or a particular security, or

(ii) trades or purchases of a particular security cease;

(vi) in paragraph (ee) by striking out “under this Act” and substituting “under this Act, the regulations and the rules”;

(vii) in paragraph (ff) in the portion preceding subparagraph (i) by striking out “a prospectus” and substituting “a preliminary prospectus, a prospectus or an amendment to a preliminary prospectus or prospectus”;

(viii) in paragraph (gg) by striking out the portion preceding subparagraph (i) and substituting the following:

(gg) respecting, for the purposes of section 78, the lapse date of a prospectus and the continuation of a distribution after the lapse date, including without limiting the generality of the foregoing,

(ix) by repealing paragraph (hh) and substituting the following:

(hh) respecting requirements in respect of amendments to preliminary prospectuses or prospectuses, including without limiting the generality of the foregoing,

(i) prescribing the circumstances under which an amendment to a preliminary prospectus or prospectus must be filed and delivered, and

(ii) establishing requirements to obtain a receipt for an amendment to a preliminary prospectus or prospectus;

(x) by repealing paragraph (ii) and substituting the following:

(ii) respecting the distribution of securities or the issuing of receipts, including without limiting the generality of the foregoing,

(i) varying any of the requirements under this Act to facilitate, expedite or regulate the distribution of securities or the issuing of receipts,

(ii) establishing requirements in respect of distributions of securities by means of a prospectus incorporating other documents by reference,

(iii) establishing requirements in respect of distributions of securities by means of a simplified or summary prospectus or other form of disclosure document,

(iv) establishing requirements in respect of distributions of securities on a continuous or delayed basis,

(v) establishing requirements in respect of pricing of distributions of securities after the issuance of a receipt for the prospectus filed in relation to the securities,

(vi) establishing procedures for the issuing of receipts for prospectuses after expedited or selective review,

(vii) respecting circumstances in which a receipt is deemed to have been issued for the purposes of this Act, the regulations or the rules, including the circumstance in which a receipt has been issued for a preliminary prospectus or prospectus under the laws of another jurisdiction in Canada respecting trading in securities,

(viii) establishing provisions for the incorporation by reference of certain documents in a prospectus or other document prescribed by regulation or rule and the effect, including from a liability and evidentiary perspective, of modifying or superseding statements, and

(ix) establishing provisions for eligibility requirements to file a prospectus or obtain a receipt for, or distribute under, a particular form of prospectus and the loss of that eligibility;

(xi) by adding after paragraph (ii) the following:

(ii.1) respecting provisions for varying withdrawal rights;

(ii.2) prescribing circumstances in which a person that purchases a security under a distribution may cancel the purchase, including without limiting the generality of the foregoing,

(i) prescribing the period in which the purchaser may cancel the purchase,

(ii) prescribing the principles for determining the amount of the refund if the purchaser cancels the purchase, and

(iii) specifying the persons responsible for making and administering the payment of the refund and prescribing the period in which the refund must be paid;

(xii) by adding after paragraph (pp) the following:

(pp.1) prescribing requirements in connection with the first trade of securities previously acquired under an exemption from the prospectus requirements under this Act, the regulations or the rules;

(xiii) by adding after paragraph (qq) the following:

(qq.1) respecting the requirement to maintain a record of all persons to whom a preliminary prospectus has been sent under section 82 and respecting the availability of the record;

(xiv) in paragraph (rr) by striking out “sections 88 and 149” and substituting “section 149”;

(xv) by repealing paragraph (ss) and substituting the following:

(ss) respecting requirements in relation to the preparation and dissemination and other use, by reporting issuers, of documents providing for continuous disclosure, including without limiting the generality of the foregoing, requirements in relation to

(i) financial statements,

(ii) supplemental analysis of financial statements,

(iii) an annual report,

(iv) a business acquisition report, and

(v) an annual information form;

(xvi) by adding after paragraph (ss) the following:

(ss.1) respecting requirements for the disclosure or provision of information or material to the public, the Commission or the Executive Director by reporting issuers;

(ss.2) respecting requirements with respect to the disclosure by reporting issuers of material changes, including without limiting the generality of the foregoing,

(i) prescribing the time period within which a reporting issuer must make disclosure of a material change,

(ii) prescribing the manner in which a reporting issuer must make disclosure of a material change, and

(iii) prescribing circumstances under which a material change may remain confidential;

(ss.3) respecting the preparation, form and content requirements applicable to the public dissemination of forward-looking information by reporting issuers where the dissemination is not part of a required filing;

(xvii) in paragraph (tt) by striking out “paragraph (ss)” and substituting “paragraph (ss), (ss.1), (ss.2) or (ss.3)”;

(xviii) in paragraph (uu) by striking out “or class of issuers”;

(xix) by repealing paragraph (ww);

(xx) in paragraph (xx)

(A) in subparagraph (ii) by striking out “future-oriented financial information” and substituting “forward-looking information”;

(B) by repealing subparagraph (v) and substituting the following:

(v) requirements respecting a change in the financial year of an issuer or in an issuer’s status as a reporting issuer under this Act, the regulations or the rules,

(C) in subparagraph (vi) by striking out the semicolon at the end of the subparagraph and substituting a comma followed by “and”;

(D) by adding after subparagraph (vi) the following:

(vii) requiring evaluations of reporting issuers’ internal control over financial reporting and requiring reporting issuers to obtain audits of their internal control over financial reporting, including their management’s evaluation;

(xxi) in paragraph (yy) by striking out “and varying any requirements under this Act in relation to the validity and solicitation of proxies”;

(xxii) by repealing paragraph (aaa) and substituting the following:

(aaa) regulating take-over bids, issuer bids, insider bids, going-private transactions, business combinations and related party transactions, including without limiting the generality of the foregoing,

(i) prescribing requirements or prohibitions relating to the conduct or management of the affairs of an issuer and of the affairs of its directors and officers before, during or after an offer to acquire, acquisition, offer to redeem, redemption, going-private transaction, business combination or related party transaction,

(ii) prescribing requirements for disclosure, valuations, review by independent committees of boards of directors and approval by minority security holders,

(iii) prescribing requirements respecting defensive tactics in connection with take-over bids,

(iv) prohibiting a person from purchasing or trading a security before, during or after an offer to acquire, acquisition, offer to redeem, redemption, going-private transaction, business combination or related party transaction, and

(v) for the purposes of section 126, prescribing types or classes of securities and prescribing percentages, disclosure requirements and prohibitions;

(xxiii) by adding after paragraph (bbb) the following:

(bbb.1) prescribing insider reporting requirements in respect of a person;

(bbb.2) respecting requirements for the disclosure or provision of information or material to the public, the Commission or the Executive Director by insiders, including without limiting the generality of the foregoing,

(i) prescribing requirements respecting the reporting by insiders of any direct or indirect beneficial ownership of, or control or direction over, securities of a reporting issuer or changes in ownership, control or direction,

(ii) prescribing requirements respecting the reporting by insiders of any interest in or right or obligation associated with a related financial instrument or changes in such interests, rights or obligations,

(iii) prescribing requirements respecting the reporting by insiders of any agreement, arrangement or understanding that alters, directly or indirectly, an insider’s economic interest in a security of a reporting issuer or an insider’s economic exposure to a reporting issuer or changes in such agreements, arrangements or understandings, and

(iv) prescribing the circumstances when a person shall be deemed to have been an insider;

(bbb.3) extending any requirements under paragraph (bbb.2) to other persons;

(xxiv) in paragraph (eee)

(A) in the portion preceding subparagraph (i) by striking out “mutual funds and non-redeemable investment funds” and substituting “investment funds”;

(B) in subparagraph (vi) by striking out “mutual funds” and substituting “investment funds”;

(D) by repealing subparagraph (xi) and substituting the following:

(xi) prescribing procedures applicable to investment funds, registrants and any other person in respect of sales and redemptions of investment fund securities and payments for sales and redemptions,

(E) in subparagraph (xii) by striking out “mutual funds or non-redeemable investment funds;” and substituting “investment funds, and”;

(F) by adding after subparagraph (xii) the following:

(xiii) regulating conflicts of interest between the investment fund and the investment fund manager;

(xxv) by repealing paragraph (jjj) and substituting the following:

(jjj) varying the application of this Act or any regulation or rule to foreign issuers to facilitate distributions, compliance with requirements applicable or relating to reporting issuers and the making of take-over bids, issuer bids, insider bids, going-private transactions, business combinations and related party transactions;

(xxvi) by adding after paragraph (kkk) the following:

(kkk.1) prescribing requirements with respect to the governance of reporting issuers for the purposes of section 148.1;

(kkk.2) requiring investment funds to establish and maintain a body for the purposes described in subsection 148.2(1), prescribing its powers and duties and prescribing requirements relating to

(i) the mandate and functioning of the body,

(ii) the composition of the body and qualifications for membership on the body, including matters respecting the independence of members, and the process for selecting the members,

(iii) the standard of care that applies to members of the body when exercising their powers, performing their duties and carrying out their responsibilities,

(iv) the disclosure of information to security holders of the investment fund, to the investment fund manager and to the Commission, and

(v) matters affecting the investment fund that require review by the body or the approval of the body;

(xxvii) by repealing paragraph (lll) and substituting the following:

(lll) respecting the designation or recognition of any person or jurisdiction if advisable for the purposes of this Act, the regulations or the rules, including without limiting the generality of the foregoing,

(i) recognizing an exchange, a self-regulatory organization, a quotation and trade reporting system or a clearing agency for any of the purposes of this Act, the regulations or the rules,

(ii) designating a person for the purpose of the definition “market participant”, and

(iii) designating a person or class of persons for the purpose of the definitions “insider”, “mutual fund”, “non-redeemable investment fund” or “reporting issuer” to be, or not to be, an insider, mutual fund, non-redeemable investment fund or reporting issuer;

(xxviii) by adding after paragraph (lll) the following:

(lll.1) prescribing documents for the purposes of the definition of “core document” in section 161.1;

(lll.2) providing for the application of Part 11.1 to the acquisition of an issuer’s security pursuant to a distribution that is exempt from section 71 or 78 and to the acquisition or disposition of an issuer’s security in connection with or pursuant to a take-over bid or issuer bid;

(lll.3) prescribing transactions or classes of transactions for the purposes of paragraph 161.11(d);

(lll.4) respecting the determination of the amount of the profit made or loss avoided for the purposes of subsection 179(7);

(xxix) by adding after paragraph (nnn) the following:

(nnn.1) respecting the administration and distribution of amounts disgorged to the Commission under paragraph 184(1)(p) or 187(4)(o);

(nnn.2) respecting the delegation or transfer of any New Brunswick authority to an extra-provincial securities commission under section 195.11;

(nnn.3) respecting the acceptance by the Commission of any delegation or transfer of an extra-provincial authority from an extra-provincial securities commission under section 195.11;

(nnn.4) respecting any amendments to, or the revocation of, any delegation, transfer or acceptance of a delegation or transfer referred to in paragraph (nnn.2) or (nnn.3);

(nnn.5) respecting the adoption or incorporation by reference of extra-provincial securities laws under section 195.3, including the administration of those laws once adopted or incorporated by reference;

(nnn.6) respecting the administration of exemptions from New Brunswick securities law under section 195.4;

(nnn.7) respecting the administration of extra-provincial securities laws arising from or as a result of any matters described in paragraphs (nnn.2) to (nnn.6);

(xxx) in paragraph (ppp) by striking out “this Act” and substituting “this Act, the regulations or the rules”;

(xxxi) by adding after (qqq) the following:

(qqq.1) governing conflicts of interest for members of the Commission, supplementary members of the Commission and employees of the Commission;

(qqq.2) authorizing the Minister or the Commission to require a person to dispose of a security acquired as a result of an intentional or accidental violation of any provision of a regulation or rule made under paragraph (qqq.1);

(qqq.3) respecting the practice and procedure for hearings permitted or required under this Act, the regulations or the rules;

(xxxii) by adding after paragraph (rrr) the following:

(rrr.1) prescribing the circumstances in which persons shall be deemed to have delivered or sent documents or information required under or governed by this Act, the regulations or the rules;

(xxxiii) in paragraph (sss) by striking out “varying the requirements under this Act to permit or require” and substituting “permitting or requiring, or varying this Act to permit or require”;

(xxxiv) by repealing paragraph (vvv) and substituting the following:

(vvv) providing for electronic signatures for the signing of documents and prescribing the circumstances under which persons shall be deemed to have signed or certified documents on an electronic or computer-based system for any purpose of this Act, the regulations or the rules;

(xxxv) in paragraph (www) by striking out “, including without limiting the generality of the foregoing, the circumstances under which and the conditions on which any such exemption applies”;

(xxxvi) by adding after paragraph (www) the following:

(www.1) respecting the circumstances under which and the conditions on which exemptions referred to in paragraph (www) apply, including without limiting the generality of the foregoing, circumstances and conditions

(i) relating to the laws of another jurisdiction or relating to an exemption from a requirement of those laws granted by a securities regulatory authority in that jurisdiction, or

(ii) that apply to a person or a class of persons designated by the Commission;

(xxxvii) in paragraph (yyy) by striking out “78, 82, 88 or 149” and substituting “82 or 149”;

(b) in subsection (2)

(i) by repealing paragraph (a);

(ii) by repealing paragraph (b);

(iii) by repealing paragraph (c);

(c) in subsection (7) by striking out “any by-laws” and “any by-law” and substituting “any laws, any by-laws” and “any law, any by-law” respectively;

(d) in subsection (8) by striking out “may vary for” and substituting “may vary for or be made in respect of”.

195 Section 204 of the Act is repealed and the following is substituted:

204(1) No agreement, memorandum of understanding or arrangement entered into by the Commission shall come into effect without the approval of the Minister.

204(2) If the Minister approves an agreement, memorandum of understanding or arrangement referred to in subsection (1), it comes into effect on the date specified in the agreement, memorandum of understanding or arrangement and, if no date is specified, on the date that the Minister approves it.

204(3) This section does not apply to

(a) agreements, memoranda of understanding or arrangements relating to the administration and management of the Commission’s business and affairs, and

(b) agreements, memoranda of understanding or arrangements relating to the harmonization of securities regulation or interjurisdictional cooperation between securities regulatory authorities.

196 Section 208 of the Act is amended

(a) by renumbering the section as subsection 208(1);

(b) in subsection (1) by striking out “on the application of an interested person” and substituting “on the application of an interested person or the Executive Director”;

208(2) An order under subsection (1) may be retroactive in its operation.

197 Schedule A of the Act is amended

(a) by adding after

58(4)

the following:

58.1

58.2(2)(a)

58.2(2)(b)

(b) by striking out

76(1)
76(3)
77(1)(a)
77(1)(b)
77(2)(a)
77(2)(b)
78(2)
83
84

and substituting

76(1)

77(1)

78(1)

88(1)

(d) by striking out

89(1)(a)
89(1)(b)
89(4)
90(1)
90(2)
91(1)
93(1)
93(2)
100
101(1)

and substituting

89(1)(a)

89(1)(b)

89(1)(c)

89(2)

(e) by striking out

114 to 127

and substituting

112

124(1)

126

(f) by striking out

135(1)

135(2)

135(3)

136

and substituting

135

(g) by striking out

137(1)(a)

137(1)(b)

137(2)(a)

137(2)(b)

137(2)(c)

138

141(1)

143(1)

144(1)(a)

144(1)(b)

144(1)(c)

(h) by striking out

145

147(2)

147(4)

147(5)

and substituting

147(2)(a)

147(2)(b)

147(2)(c)

147(2)(d)

147(4)

147(4.1)(a)

147(4.1)(b)

147(4.1)(c)

147(4.1)(d)

147(5)

147.2(2)(a)

147.2(2)(b)

147.2(2)(c)

147.2(2)(d)

147.2(3)

COMMENCEMENT

198 Paragraphs 1(b), (c) and (d), section 36, paragraphs 37(a) and (c), sections 38 to 40, 42 to 47, 63, 64, 74 to 123, 130 to 137, 142, 143, 146 to 149, 152, 153, 157 and 158, subparagraphs 159(a)(i) and (ii), paragraphs 163(a) and (b), subparagraphs 163(d)(ii) and (iii), paragraph 163(h), sections 171, 172 and 193, subparagraphs 194(a)(xiv), (xxii), (xxvi) and (xxxvii) and paragraphs 197(b), (c), (e), (f) and (g) of this Act or any provision of them come into force on a day or days to be fixed by proclamation.

EXPLANATORY NOTES

Section 1

(a)

i) A correction is made in the French version.

ii) Consequential amendment.

iii) Consequential amendment.

iv) The existing definition is as follows:

“investment fund manager” means a person who has the power and exercises the responsibility to direct the affairs of an investment fund. (gestionnaire de fonds d’investissement)

v) The existing definition is as follows:

“issuer” means a person who has outstanding, issues or proposes to issue a security. (émetteur)

vi)

A) Consequential amendment.

B) The existing provision is as follows:

(e) a manager or custodian of assets, shares or units of a mutual fund,

C) Consequential amendment.

vii)

A) The existing provision is as follows:

“mutual fund” includes

B) Consequential amendment.

C) Consequential amendment.

D) Consequential amendment.

E) Consequential amendment.

viii)

A) Consequential amendment.

B) Consequential amendment.

C) Consequential amendment.

ix) Consequential amendment.

x) A correction is made in the French version.

xi) Consequential amendment.

xii) Consequential amendment.

xiii) Consequential amendment.

xiv)

A) Consequential amendment.

B) The existing provision is as follows:

(a) that has issued voting securities in respect of which

C) The existing provision is as follows:

(d) that is the corporation whose existence continues following the exchange of securities of a corporation by or for the account of the corporation with another corporation or the holders of the securities of that other corporation in connection with

(i) a statutory amalgamation, arrangement or reorganization, or

(ii) a statutory procedure under which one corporation takes title to the assets of the other corporation that in turn ceases to exist by operation of law or under which the existing corporations merge into a new corporation,

if one of the amalgamating or merged corporations or the continuing corporation has been a reporting issuer for at least 12 months,

D) Consequential amendment.

E) Consequential amendment.

F) Consequential amendment.

xv) The existing definition is as follows:

“sales literature” includes discs, videotapes and similar material, written matter and all other material, except preliminary prospectuses and prospectuses, designed for use in a presentation to a purchaser or prospective purchaser, whether such material is given or shown to the purchaser or prospective purchaser. (documentation commerciale)

xvi) The existing provision is as follows:

“self-regulatory organization” means a person who represents registrants and is organized for the purpose of regulating the operations and the standards of practice and business conduct of its members and their representatives with a view to promoting the protection of investors and the public interest. (organisme d’autoréglementation)

xvii) The existing definition is as follows:

“senior officer” means (cadre dirigeant)

(a) the chair or a vice-chair of the board of directors, the president, a vice-president, the secretary, the treasurer or the general manager of a corporation or any other individual who performs functions for an issuer similar to those normally performed by an individual occupying any such office, and

(b) each of the 5 highest paid employees of an issuer, other than commissioned salespersons who do not act in a management capacity, including any individual referred to in paragraph (a).

xviii) New definitions.

(b) Consequential amendment.

(d) Consequential amendment.

Section 2

New provisions.

Section 3

Consequential amendment.

Section 4

Consequential amendment.

Section 5

Consequential amendment.

Section 6

New provisions.

Section 7

Consequential amendments.

Section 8

Consequential amendment.

Section 9

(a) Consequential amendment.

(b) Consequential amendment.

Section 10

Consequential amendment.

Section 11

The existing provision is as follows:

16(1) The Executive Director may delegate his or her powers and duties under this Act or the regulations to an employee of the Commission other than the powers and duties delegated to the Executive Director under subsection 24(1).

16(2) The Executive Director may impose such terms and conditions as he or she considers appropriate on a delegation made under subsection (1).

16(3) The Executive Director may revoke, in whole or in part, a delegation made under subsection (1).

16(4) A decision, ruling, order, temporary order or direction made by a person under a delegation made by the Executive Director under subsection (1) shall be deemed to be a decision, ruling, order, temporary order or direction of the Executive Director.

Section 12

(a) The existing provision is as follows:

20 No action lies for damages or otherwise against any of the following persons in relation to anything done or purported to be done in good faith, or in relation to anything omitted in good faith, under this Act by the person:

(b) Consequential amendment.

Section 13

(a) Consequential amendment.

(b) Consequential amendment.

Section 14

(a)

i) Consequential amendment.

ii) Consequential amendment.

(b) Consequential amendment.

Section 15

(a) Consequential amendment.

(b) New provision.

Section 16

New provisions.

Section 17

The existing provision is as follows:

24(1) Subject to subsection (3), the Commission may delegate its powers and duties under this Act or the regulations to the Chair, another member of the Commission, the Executive Director or a committee of the Commission established by the by-laws of the Commission.

24(2) The Commission may impose such terms and conditions as it considers appropriate on a delegation made under subsection (1).

24(3) The Commission shall not delegate the power to conduct contested hearings on the merits or the power to make rules under section 200.

24(4) The Commission may revoke, in whole or in part, a delegation made under subsection (1).

24(5) No member of the Commission who exercises a power or performs a duty of the Commission under Part 13 in respect of a matter under investigation shall sit on a hearing by the Commission that deals with the matter, except with the written consent of the parties to the proceeding.

24(6) A decision, ruling, order, temporary order or direction made by a person under a delegation made by the Commission under subsection (1) shall be deemed to be a decision, ruling, order, temporary order or direction of the Commission.

Section 18

Consequential amendment.

Section 19

Consequential amendment.

Section 20

The existing provision is as follows:

33(2) The Committee shall consist of not more than 5 members appointed by the Minister.

Section 21

The exiting provision is as follows:

47(1) An application for registration or renewal or reinstatement of registration or amendment to registration shall be made to the Executive Director in writing in the form prescribed by regulation and shall be accompanied by the fee prescribed by regulation.

47(2) An applicant shall state in an application for registration an address for service in New Brunswick.

Section 22

Consequential amendment.

Section 23

(a)

i) Consequential amendment.

ii) Consequential amendment.

iii) Consequential amendment.

(b) The existing provision is as follows:

48(2) The Executive Director may, in granting a registration, a renewal or a reinstatement of registration or an amendment to registration, restrict the registration of the applicant by imposing terms and conditions on the registration and, without limiting the generality of the foregoing, may restrict

(a) the duration of the registration, and

(b) the registration to trades in certain securities or a certain class of securities.

Section 24

Consequential amendment.

Section 25

Consequential amendment.

Section 26

The existing provision is as follows:

51 On the application of a registrant, the Executive Director may accept, subject to the regulations and such terms and conditions as the Executive Director considers appropriate, the voluntary surrender of the registration of the registrant, if the Executive Director is satisfied that the financial obligations of the registrant to the registrant’s clients have been discharged and that the surrender of the registration would not be prejudicial to the public interest.

Section 27

The existing provision is as follows:

53(1) Subject to subsection (2), the Executive Director may, following a hearing, make an order suspending or cancelling the registration of a registrant if the Executive Director is of the opinion that the registrant has contravened or failed to comply with a term or condition imposed on the registration under subsection 48(2).

Section 28

New provision.

Section 29

(a) Consequential amendment.

(b) Consequential amendment.

Section 30

(a)

i) The existing provision is as follows:

58(1) No person, with the intention of effecting a trade in a security, other than a security that carries an obligation of the issuer to redeem or purchase it or a right of the owner to require redemption or purchase of it, shall make any representation, orally or in writing, that the person or another person

ii) Consequential amendment.

iii) Consequential amendment.

(b) New provision.

58(4) No person, with the intention of effecting a trade in a security, shall make a statement, orally or in writing, that the person knows or ought reasonably to know is a misrepresentation.

Section 31

New provisions.

Section 32

Consequential amendment.

Section 33

Consequential amendment.

Section 34

The existing provision is as follows:

65 No person shall make any representation, orally or in writing, that the Commission has in any way passed judgment on the financial standing, fitness or conduct of any registrant or on the merits of any security or issuer.

Section 35

The existing provision is as follows:

73 On the filing of a preliminary prospectus under this Part, the Executive Director shall issue a receipt for the preliminary prospectus.

Section 36

(a) The existing provision is as follows:

74(3) Subject to any waiver or variation consented to in writing by the Executive Director, a prospectus shall contain such certificates as are required by the regulations.

(b) The existing provision is as follows:

74(4) A prospectus shall contain a statement of the rights given to a purchaser of securities offered by the prospectus by sections 88 and 149.

Section 37

(a) New provision.

(b) Consequential amendment.

(c)

i) The existing provision is as follows:

(iv) having regard to the financial condition of the issuer or an officer, director, promoter, or a person or combination of persons holding a sufficient number of the securities of the issuer to affect materially the control of the issuer, the issuer cannot reasonably be expected to be financially responsible in the conduct of its business,

ii) The existing provision is as follows:

(v) the past conduct of the issuer or an officer, director, promoter, or a person or combination of persons holding a sufficient number of the securities of the issuer to affect materially the control of the issuer affords reasonable grounds for belief that the business of the issuer will not be conducted with integrity and in the best interests of its security holders,

iii) The existing provision is as follows:

(vi) such escrow or pooling agreement as the Executive Director considers necessary or advisable with respect to securities has not been entered into,

iv) Consequential amendment.

v) The existing provision is as follows:

(viii) in the case of a prospectus filed by a finance company,

(A) the plan of distribution of the securities offered is not acceptable,

(B) the securities offered are not secured in such manner, on such terms and by such means as are required by the regulations, or

(C) the finance company does not meet such financial and other requirements and conditions as are prescribed by regulation, or

Section 38

The existing provision is as follows:

76(1) Where an adverse material change occurs with respect to an issuer after a receipt is issued for a preliminary prospectus but before the receipt is issued for the prospectus, the person proposing to make the distribution shall file with the Executive Director an amendment to the preliminary prospectus disclosing the change within 10 days after the change occurs.

76(2) On the filing of an amendment to a preliminary prospectus, the Executive Director shall issue a receipt for the amendment to the preliminary prospectus.

76(3) On the filing of an amendment to a preliminary prospectus, the person filing the amendment shall ensure that the amendment is sent to each recipient of the preliminary prospectus according to the record maintained under section 84.

Section 39

The existing provision is as follows:

77(1) Where a material change occurs with respect to an issuer after the receipt for a prospectus is issued but before the completion of the distribution under the prospectus, the person making the distribution

(a) shall file with the Executive Director an amendment to the prospectus disclosing the change within 10 days after the change occurs, and

(b) except with the written permission of the Executive Director, shall not proceed with the distribution until a receipt for the amendment to the prospectus is issued by the Executive Director.

77(2) Where securities in addition to securities previously disclosed in a prospectus or an amendment to the prospectus are to be distributed after the receipt for the prospectus has been issued but before the completion of the distribution under the prospectus, the person proposing to make the distribution of additional securities

(a) shall file with the Executive Director an amendment to the prospectus disclosing the additional securities within 10 days after the decision to distribute the additional securities, and

(b) shall not proceed with the distribution of the additional securities

(i) for a period of 10 days after the amendment to the prospectus is filed, or

(ii) until such time as a receipt for the amendment to the prospectus is issued by the Executive Director, if the Commission informs the person proposing to make the distribution in writing within 10 days after the filing of the amendment to the prospectus that the Commission objects to the distribution of the additional securities.

77(3) Subject to subsection (4) and on the filing of an amendment to a prospectus referred to in subsection (1) or (2), the Executive Director shall issue a receipt for the amendment to the prospectus unless in the opinion of the Executive Director it is not in the public interest to do so.

77(4) The Executive Director shall not issue a receipt for an amendment to a prospectus filed under subsection (1) or (2) if the Executive Director is of the opinion that any of the circumstances referred to in subsection 75(2) exist.

77(5) The Executive Director shall not refuse to issue a receipt under subsection (3) or (4) without giving the person who filed the amendment to the prospectus an opportunity to be heard.

Section 40

The existing provision is as follows:

78(1) In this section, “lapse date”, where used in relation to a security that is being distributed under subsection 71(1) or this section, means the date that is 12 months after the date of the most recent prospectus relating to the security.

78(2) Subject to subsection (3), no person shall continue a distribution of a security after the lapse date, unless a new prospectus that complies with this Part and the regulations is filed under subsection 71(1) with the Executive Director in relation to the security and a receipt for the new prospectus is issued by the Executive Director.

78(3) A distribution of a security may, subject to terms and conditions prescribed by regulation, be continued for 12 months after a lapse date.

78(4) A purchaser of securities may, in the circumstances prescribed by regulation, cancel a trade made in reliance on subsection (3).

78(5) On the application of an interested person or on the Commission’s own motion, the Commission may extend, subject to such terms and conditions as it considers appropriate, the period within which a distribution may be continued after the lapse date.

78(6) Notwithstanding subsection 71(1), a person may file a new prospectus in accordance with subsection (2) with the Executive Director without having filed a preliminary prospectus and obtaining a receipt for the preliminary prospectus.

Section 41

New provision.

Section 42

Consequential amendment.

Section 43

Consequential amendment.

Section 44

Consequential amendment.

Section 45

Consequential amendment.

Section 46

The existing provision is as follows:

85 Where in the opinion of the Executive Director a preliminary prospectus does not substantially comply with the requirements of New Brunswick securities law as to the form and content of a prospectus, the Executive Director may, without giving notice, order that the trading permitted by subsection 82(2) in the security to which the preliminary prospectus relates shall cease until a revised preliminary prospectus satisfactory to the Executive Director is filed with the Executive Director and sent to each recipient of the defective preliminary prospectus according to the record maintained under section 84.

Section 47

The existing provision is as follows:

88(1) A dealer, not acting as agent of the purchaser of a security, who receives an order or subscription for a security offered in a distribution to which subsection 71(1) applies shall, unless the dealer has previously done so, send to the purchaser the latest prospectus filed or required to be filed under this Act or the regulations in relation to the security and any amendment to the prospectus filed or required to be filed under this Act or the regulations

(a) before entering into an agreement of purchase and sale resulting from the order or subscription, or

(b) not later than midnight on the second business day after entering into the agreement.

88(2) An agreement of purchase and sale referred to in subsection (1) is not binding on the purchaser if the dealer from whom the purchaser purchases the security receives written notice evidencing the intention of the purchaser not to be bound by the agreement of purchase and sale not later than midnight on the second business day after receipt by the purchaser of the latest prospectus and any amendment to the prospectus.

88(3) Subsection (2) does not apply if the purchaser is a registrant or if the purchaser sells or otherwise transfers beneficial ownership of the security referred to in subsection (2), otherwise than to secure indebtedness, before the expiration of the time referred to in subsection (2).

88(4) A beneficial owner of the security who is not the purchaser under this section may exercise the same rights under subsection (2) as may be exercised by a purchaser.

88(5) A purchaser referred to in subsection (2) who is not the beneficial owner of the security shall advise the person who is the beneficial owner of the security of the provisions of subsections (2) and (4).

88(6) Subsection (5) only applies if the purchaser knows the name and address of the beneficial owner of the security.

88(7) For the purpose of this section, receipt of the latest prospectus and any amendment to the prospectus by a dealer who is acting as agent of or who after receipt commences to act as agent of the purchaser with respect to the purchase of a security referred to in subsection (1) shall be deemed to be receipt by the purchaser as of the date on which the agent received the latest prospectus and any amendment to the prospectus.

88(8) For the purpose of this section, receipt of the notice referred to in subsection (2) by a dealer who acted as agent of the vendor with respect to the sale of the security referred to in subsection (1) shall be deemed to be receipt by the vendor as of the date on which the agent received the notice.

88(9) For the purpose of this section, a dealer shall not be considered to be acting as agent of the purchaser unless the dealer is acting solely as agent of the purchaser with respect to the purchase and sale in question and has not received and has no agreement to receive compensation from or on behalf of the vendor with respect to the purchase and sale.

88(10) The onus of proving that the time for giving notice under subsection (2) has expired is on the dealer from whom the purchaser has agreed to purchase the security.

Section 48

Consequential amendment.

Section 49

The existing provision is as follows:

89(1) Subject to subsection (3), where a material change occurs with respect to a reporting issuer, the reporting issuer shall

(a) without delay issue and file a news release prepared in accordance with the regulations, and

(b) within the period prescribed by regulation, file a report of the material change prepared in accordance with the regulations.

89(2) Paragraph (1)(a) does not apply to a reporting issuer that without delay files the report required under paragraph (1)(b) marked so as to indicate that it is confidential, together with written reasons why a news release should not be issued and filed under paragraph (1)(a), if

(a) the reporting issuer reasonably believes that the issuance and filing of a news release required by paragraph (1)(a) would be unduly detrimental to the interests of the reporting issuer, or

(b) the material change consists of a decision to implement a change made by senior management of the reporting issuer who believe that confirmation of the decision by the board of directors is probable and senior management of the reporting issuer have no reason to believe that persons with knowledge of the material change have made use of that knowledge in purchasing or selling securities of the reporting issuer.

89(3) Where a report has been filed under subsection (2), the reporting issuer shall, if it believes the report should continue to remain confidential, advise the Commission in writing within 10 days after the date of filing of the report and every 10 days after that, until the material change is generally disclosed in the manner referred to in paragraph (1)(a) or, if the material change consists of a decision of the type referred to in paragraph (2)(b), until that decision has been rejected by the board of directors of the reporting issuer.

89(4) Notwithstanding subsections (2) and (3), the reporting issuer shall generally disclose the material change in the manner referred to in paragraph (1)(a) on the reporting issuer becoming aware, or having reasonable grounds to believe, that persons are purchasing or selling securities of the reporting issuer with knowledge of the material change that has not been generally disclosed.

89(5) Notwithstanding subsections (2) and (3), where the Commission is of the opinion that it is in the public interest that the material change be disclosed, the Commission, after giving the reporting issuer an opportunity to be heard, may order that the material change be generally disclosed in the manner specified in the order.

89(6) Where, in the opinion of the Commission, a news release will not receive the publicity necessary for the material change disclosed, the Commission may take, or may require the reporting issuer to take, any steps that the Commission considers expedient to ensure that the material change is sufficiently disclosed.

Section 50

Consequential amendment.

Section 51

Consequential amendment.

Section 52

Consequential amendment.

Section 53

Consequential amendment.

Section 54

New provision.

Section 55

Consequential amendment.

Section 56

Consequential amendment.

Section 57

Consequential amendment.

Section 58

Consequential amendment.

Section 59

Consequential amendment.

Section 60

Consequential amendment.

Section 61

Consequential amendment.

Section 62

Consequential amendment.

Section 63

Consequential amendment:

Section 64

The existing provision is as follows:

97(1) On the application of any person, the Commission may issue a certificate

(a) that an issuer is not a reporting issuer, or

(b) that a reporting issuer is not in default of any requirement under this Act or the regulations.

97(2) A list of defaulting reporting issuers shall be maintained by the Commission and shall be made available for public inspection at the Commission offices during the normal business hours of the Commission.

97(3) Subject to subsection (4), a person may rely on a certificate issued under paragraph (1)(a) to determine that an issuer is not a reporting issuer and may rely on a certificate issued under paragraph (1)(b) or the list maintained under subsection (2) to determine that a reporting issuer is not in default of any requirement under this Act or the regulations.

97(4) No person who knows or ought reasonably to know that a reporting issuer is in default of any requirement under this Act or the regulations may rely on a certificate issued under paragraph (1)(b) or the list maintained under subsection (2) to determine that the reporting issuer is not in default of any requirement under this Act or the regulations.

Section 65

Consequential amendment.

Section 66

Consequential amendment.

Section 67

Consequential amendment.

Section 68

Consequential amendment.

Section 69

Consequential amendment.

Section 70

Consequential amendment.

Section 71

Consequential amendment.

Section 72

Consequential amendment.

Section 73

New provision.

Section 74

Consequential amendment.

Section 75

Consequential amendment.

Section 76

Consequential amendment.

Section 77

Consequential amendment.

Section 78

Consequential amendment.

Section 79

Consequential amendment.

Section 80

Consequential amendment.

Section 81

Consequential amendment.

Section 82

Consequential amendment.

Section 83

Consequential amendment.

Section 84

Consequential amendment.

Section 85

Consequential amendment.

Section 86

Consequential amendment.

Section 87

The existing provision is as follows:

112(1) Subject to the regulations, a take-over bid is exempt from sections 120 to 125 if

(a) the bid is made through the facilities of an exchange recognized by the Commission for the purposes of this paragraph,

(b) all of the following conditions apply:

(i) the bid is for not more than 5% of the outstanding securities of a class of securities of the issuer;

(ii) the aggregate number of securities acquired by the offeror and any person acting jointly or in concert with the offeror within any period of 12 months in reliance on the exemption provided by this paragraph does not, when aggregated with acquisitions otherwise made by the offeror and any person acting jointly or in concert with the offeror within the same 12-month period, constitute in excess of 5% of the outstanding securities of that class of the issuer at the beginning of the 12-month period; and

(iii) if there is a published market for the securities acquired, the value of the consideration paid for any of the securities acquired is not in excess of the market price at the date of acquisition, determined in accordance with the regulations, plus reasonable brokerage fees or commissions actually paid,

(i) purchases are made from not more than 5 persons in the aggregate, including persons outside of New Brunswick;

(ii) the bid is not made generally to security holders of the class of securities that is the subject of the bid; and

(iii) the value of the consideration paid for any of the securities, including brokerage fees or commissions, does not exceed 115% of the market price of securities of that class at the date of the bid, determined in accordance with the regulations,

(d) all of the following conditions apply:

(i) the offeree issuer is not a reporting issuer;

(ii) there is not a published market in respect of the securities that are the subject of the bid; and

(iii) the number of holders of securities of that class is not more than 50, exclusive of holders who are in the employment of the offeree issuer or an affiliate of the offeree issuer, and exclusive of holders who were formerly in the employment of the offeree issuer or an affiliate of the offeree issuer and who while in that employment were, and have continued after that employment to be, security holders of the offeree issuer,

(e) all of the following conditions apply:

(i) the number of holders of securities of the class subject to the bid whose last address as shown on the books of the offeree issuer is in New Brunswick is fewer than 50;

(ii) the securities held by such holders constitute, in the aggregate, less than 2% of the outstanding securities of that class;

(iii) the bid is made in compliance with the laws of a jurisdiction that is recognized by the Commission for the purposes of this subparagraph; and

(iv) all material relating to the bid that is sent by the offeror to holders of securities of the class that is subject to the bid is concurrently filed and is concurrently sent to all holders of such securities whose last address as shown on the books of the offeree issuer is in New Brunswick, or

(f) the bid is exempted by the regulations.

112(2) For the purposes of paragraph (1)(c), where an offeror makes an offer to acquire securities from a person and the offeror knows or ought to know after reasonable inquiry that

(a) one or more other persons on whose behalf that person is acting as nominee, agent, trustee, executor, administrator or other legal representative has a direct beneficial interest in those securities, then each of such others shall be included in the determination of the number of persons to whom the offer to acquire has been made, but, if an inter vivos trust has been established by a single settlor or if an estate has not vested in all persons beneficially entitled to it, the trust or estate shall be considered a single security holder in such determination, or

(b) the person acquired the securities in order that the offeror might make use of the exemption provided by paragraph (1)(c), then each person from whom those securities were acquired shall be included in the determination of the number of persons to whom the offer to acquire has been made.

Section 88

Consequential amendment.

Section 89

Consequential amendment.

Section 90

Consequential amendment.

Section 91

Consequential amendment.

Section 92

Consequential amendment.

Section 93

Consequential amendment.

Section 94

Consequential amendment.

Section 95

Consequential amendment.

Section 96

Consequential amendment.

Section 97

Consequential amendment.

Section 98

Consequential amendment.

Section 99

Consequential amendment.

Section 100

Consequential amendment.

Section 101

Consequential amendment.

Section 102

Consequential amendment.

Section 103

Consequential amendment.

Section 104

Consequential amendment.

Section 105

Consequential amendment.

Section 106

Consequential amendment.

Section 107

Consequential amendment.

Section 108

Consequential amendment.

Section 109

Consequential amendment.

Section 110

Consequential amendment.

Section 111

The existing provision is as follows:

124(1) Where a take-over bid has been made, a directors’ circular shall be prepared and delivered by the board of directors of an offeree issuer to every person to whom a take-over bid must be delivered under paragraph 120(a) not later than 15 days after the date of the bid.

124(2) The board of directors shall include in a directors’ circular either

(a) a recommendation to accept or to reject a take-over bid and the reasons for their recommendation, or

(b) a statement that they are unable to make or are not making a recommendation and the reasons that they are unable to make or are not making a recommendation.

124(3) An individual director or officer may recommend acceptance or rejection of a take-over bid if the director or officer delivers with the recommendation a circular prepared in accordance with the regulations.

124(4) Where a board of directors is considering recommending acceptance or rejection of a take-over bid, it shall, at the time of delivering a directors’ circular, advise the security holders of this fact and may advise them not to tender their securities until further communication is received from the directors.

124(5) Where subsection (4) applies, the board of directors shall deliver the recommendation or the decision not to make a recommendation at least 7 days before the scheduled expiry of the period during which securities may be deposited pursuant to the bid.

124(6) Where, before the expiry of a take-over bid or after the expiry of the bid but before the expiry of all rights to withdraw the securities that have been deposited pursuant to the bid,

(a) a change has occurred in the information contained in a directors’ circular or in any notice of change in a directors’ circular that would reasonably be expected to affect the decision of the holders of the securities to accept or reject the bid, the board of directors of the offeree issuer shall without delay deliver a notice of the change to every person to whom the circular was required to be delivered disclosing the nature and substance of the change, or

(b) a change has occurred in the information contained in an individual director’s or officer’s circular or any notice of change in the individual director’s or officer’s circular that would reasonably be expected to affect the decision of the holders of the securities to accept or reject the bid, other than a change that is not within the control of the individual director or officer, as the case may be, the individual director or officer, shall without delay deliver a notice of change in relation to it to the board of directors.

124(7) Where an individual director or officer submits a circular under subsection (3) or a notice of change under paragraph (6)(b) to the board of directors, the board, at the offeree issuer’s expense, shall deliver a copy of the circular or notice to the persons referred to in subsection (1).

124(8) A directors’ circular, an individual director’s or officer’s circular and a notice of change shall be in the form prescribed by regulation and shall contain the information required by this Part and the regulations.

Section 112

Consequential amendment.

Section 113

Consequential amendment.

Section 114

Consequential amendment.

Section 115

The existing provision is as follows:

126(1) Every offeror that acquires beneficial ownership of, or the power to exercise control or direction over, or securities convertible into, voting or equity securities of any class of a reporting issuer that, together with such offeror’s securities of that class, would constitute 10% or more of the outstanding securities of that class,

(a) shall without delay issue and file a news release containing the information prescribed by regulation, and

(b) shall, within 2 business days after issuing and filing the news release under paragraph (a), file a report containing the same information as is contained in the news release.

126(2) Where an offeror is required to file a report under subsection (1) or a further report under this subsection and the offeror or any person acting jointly or in concert with the offeror acquires beneficial ownership of, or the power to exercise control or direction over, or securities convertible into, an additional 2% or more of the outstanding securities of the class or there is a change in any other material fact in such a report, the offeror

(a) shall without delay issue and file a news release containing the information prescribed by regulation, and

(b) shall, within 2 business days after issuing and filing the news release under paragraph (a), file a report containing the same information as is contained in the news release.

126(3) During the period beginning on the occurrence of an event in respect of which a report or further report is required to be filed under this section and ending on the expiry of one business day after the date that the report or further report is filed, neither the offeror nor any person acting jointly or in concert with the offeror shall acquire or offer to acquire beneficial ownership of any securities of the class in respect of which the report or further report is required to be filed or any securities convertible into securities of that class.

126(4) Subsection (3) does not apply to an offeror that is the beneficial owner of, or has the power to exercise control or direction over, securities that, together with such offeror’s securities of that class, constitute 20% or more of the outstanding securities of that class.

Section 116

Consequential amendment.

Section 117

Consequential amendment.

Section 118

Consequential amendment.

Section 119

Consequential amendment.

Section 120

(a) Consequential amendment.

(b) Consequential amendment.

Section 121

(a) Consequential amendment.

(b) Consequential amendment.

(d) The existing provision is as follows:

(f) respecting any matter not referred to in paragraphs (a) to (e) that the Court of Queen’s Bench considers proper.

Section 122

Consequential amendment.

Section 123

Consequential amendment.

Section 124

Consequential amendment.

Section 125

Consequential amendment.

Section 126

Consequential amendment.

Section 127

Consequential amendment.

Section 128

Consequential amendment.

Section 129

Consequential amendment.

Section 130

Consequential amendment.

Section 131

The existing provision is as follows:

135(1) Unless exempted under the regulations, a person who becomes an insider of a reporting issuer, other than a mutual fund, shall, within the period prescribed by regulation, file a report prepared in accordance with the regulations disclosing, as of the day on which the person became an insider, any direct or indirect beneficial ownership of or control or direction over securities of the reporting issuer.

135(2) An insider who has filed or is required to file a report under this section and whose direct or indirect beneficial ownership of or control or direction over securities of the reporting issuer changes from that shown or required to be shown in the report or in the latest report filed by the person under this section shall, within the period prescribed by regulation, file a report prepared in accordance with the regulations that indicates the direct or indirect beneficial ownership of or control or direction over securities of the reporting issuer as of the day on which the change took place and that indicates the change or changes that occurred.

135(3) A person who becomes an insider of a reporting issuer by reason of subsection 1(8) or (9) shall, within the period prescribed by regulation, file the reports required by subsections (1) and (2) for the previous 6 months or such shorter period that he or she was a director or officer of the reporting issuer.

135(4) For the purpose of reporting under this section, ownership shall be deemed to pass at such time as an offer to sell is accepted by the purchaser or the purchaser’s agent or an offer to buy is accepted by the vendor or the vendor’s agent.

Section 132

Consequential amendment.

Section 133

Consequential amendment.

Section 134

Consequential amendment.

Section 135

The existing provision is as follows:

137(1) No mutual fund in New Brunswick shall knowingly make an investment by way of loan to

(a) any officer or director of the mutual fund, its mutual fund manager or its distribution company or an associate of any of them, or

(b) any individual, if the individual or an associate of the individual is a substantial security holder of the mutual fund, its mutual fund manager or its distribution company.

137(2) No mutual fund in New Brunswick shall knowingly make an investment

(a) in any person who is a substantial security holder of the mutual fund, its mutual fund manager or its distribution company,

(b) in any person in whom the mutual fund, alone or together with one or more related mutual funds, is a substantial security holder, or

(i) any officer or director of the mutual fund, its mutual fund manager or its distribution company or an associate of any of them has a significant interest, or

(ii) any person who is a substantial security holder of the mutual fund, its mutual fund manager or its distribution company has a significant interest.

Section 136

Consequential amendment.

Section 137

Consequential amendment.

Section 138

Consequential amendment.

Section 139

Consequential amendment.

Section 140

Consequential amendment.

Section 141

Consequential amendment.

Section 142

Consequential amendment.

Section 143

The existing provision is as follows:

141(1) No mutual fund shall make any investment in consequence of which a related person of the mutual fund will receive any fee or other compensation except fees paid pursuant to a contract which is disclosed in any preliminary prospectus or prospectus, or any amendment to either of them, that is filed by the mutual fund and in respect of which a receipt is issued by the Executive Director.

141(2) The Commission may, on the application of a mutual fund and where the Commission is satisfied that it would not be prejudicial to the public interest to do so, order, subject to such terms and conditions as the Commission considers appropriate, that subsection (1) does not apply to the mutual fund.

Section 144

Consequential amendment.

Section 145

The existing provision is as follows:

142(1) A person responsible for the management of a mutual fund shall exercise the powers and discharge the duties of the person’s office honestly, in good faith and in the best interests of the mutual fund, and shall, in exercising such powers and discharging such duties, exercise the degree of care, diligence and skill that a reasonably prudent person would exercise in the circumstances.

142(2) For the purposes of subsection (1), a person is responsible for the management of a mutual fund if the person has a legal power or right to control the mutual fund or if in fact the person is able to do so.

Section 146

Consequential amendment.

Section 147

Consequential amendment.

Section 148

Consequential amendment.

Section 149

Consequential amendment.

Section 150

Consequential amendment.

Section 151

Consequential amendment.

Section 152

Consequential amendment.

Section 153

Consequential amendment.

Section 154

Consequential amendment.

Section 155

(a) The existing provision is as follows:

147(1) In this section, “person in a special relationship with a reporting issuer” means

(a) a person who is an insider, affiliate or associate of

(i) the reporting issuer,

(ii) a person who is proposing to make a take-over bid, as defined in section 106, for the securities of the reporting issuer, or

(c) a person who is a director, officer or employee of the reporting issuer or of a person described in subparagraph (a)(ii) or (iii) or paragraph (b),

(d) a person who learned of a material fact or material change with respect to the reporting issuer while the person was a person described in paragraph (a), (b) or (c), or

(b) The existing provision is as follows:

147(2) No person in a special relationship with a reporting issuer shall purchase or sell securities of the reporting issuer with the knowledge of a material fact or material change with respect to the reporting issuer that has not been generally disclosed.

(d) Consequential amendment.

(e) New provision.

(f) Consequential amendment.

(g) Consequential amendment.

Section 156

New provisions.

Section 157

(a) Consequential amendment.

(b) Consequential amendment.

Section 158

New provisions.

Section 159

(a)

i) Consequential amendment.

ii) Consequential amendment.

(b) A correction is made in the French version.

(c)

i) A correction is made in the French version.

ii) A correction is made in the French version.

iii) A correction is made in the French version.

(d) A correction is made in the French version.

(e) A correction is made in the French version.

(f) A correction is made in the French version.

(g) A correction is made in the French version.

Section 160

(a) The existing provision is as follows:

150(1) Where, in connection with a distribution of securities, securities are offered for sale in reliance on an exemption from section 71 that is provided for under the regulations and that is prescribed by regulation for the purposes of this section or in reliance on an exemption from section 71 provided for in an order made by the Commission under section 80, and where any information relating to the offering provided to the purchaser of the securities contains a misrepresentation, a purchaser who purchases the securities shall be deemed to have relied on the misrepresentation if it was a misrepresentation at the time of purchase, and

(b) A correction is made in the French version.

Section 161

(a) Consequential amendment.

(b) A correction is made in the French version.

(d) A correction is made in the French version.

(e) A correction is made in the French version.

(f) A correction is made in the French version.

(g) A correction is made in the French version.

(h) A correction is made in the French version.

Section 162

(a) A correction is made in the French version.

(b) A correction is made in the French version.

(d) A correction is made in the French version.

Section 163

(a) Consequential amendment.

(b) Consequential amendment.

(d)

i) A correction is made in the French version.

ii) Consequential amendment.

iii) Consequential amendment.

iv) A correction is made in the French version.

(e) A correction is made in the French version.

(f) A correction is made in the French version.

(g) A correction is made in the French version.

(h) Consequential amendment.

Section 164

New provisions.

Section 165

Consequential amendment.

Section 166

New provisions.

Section 167

The existing provision is as follows:

155 A purchaser of a security to whom a prospectus was required to be sent but was not sent in compliance with subsection 88(1), a purchaser of a security to whom an offering memorandum or an amendment to an offering memorandum was required to be sent but was not sent in compliance with the regulations or a security holder to whom a take-over bid and take-over bid circular or an issuer bid and an issuer bid circular, or any notice of change or variation to any such bid or circular, were required to be delivered but were not delivered in compliance with section 120 or 123 has a right of action for rescission or damages against the dealer or offeror who failed to comply with the applicable requirement.

Section 168

Consequential amendment.

Section 169

(a) Consequential amendment.

(b) Consequential amendment.

(c)

i) Consequential amendment.

ii) Consequential amendment.

iii) Consequential amendment.

iv) Consequential amendment.

(d) Consequential amendment.

(e) New provisions.

(f) The existing provision is as follows:

157(6) Every person who is an insider, affiliate or associate of a reporting issuer who

(a) sells or purchases the securities of the reporting issuer with knowledge of a material fact or material change with respect to the reporting issuer that has not been generally disclosed, or

(b) communicates to another person, other than in the necessary course of business, knowledge of a material fact or material change with respect to the reporting issuer that has not been generally disclosed,

is accountable to the reporting issuer for any benefit or advantage received or receivable by the person as a result of the purchase, sale or communication, as the case may be, unless the person proves that the person reasonably believed that the material fact or material change had been generally disclosed.

(g) Consequential amendment.

(h) Consequential amendment.

(i) Consequential amendment.

Section 170

(a)

i) Consequential amendment.

ii) Consequential amendment.

iii) Consequential amendment.

(b) Consequential amendment.

(c)

i) Consequential amendment.

ii) Consequential amendment.

iii) Consequential amendment.

(d) Consequential amendment.

(e) Consequential amendment.

(f) Consequential amendment.

(g) Consequential amendment.

Section 171

Consequential amendment.

Section 172

Consequential amendment.

Section 173

New provisions.

Section 174

Consequential amendment.

Section 175

(a) The existing provision is as follows:

168(1) The Commission or any member or employee of the Commission may conduct a review of the disclosures that have been made or that ought to have been made by a reporting issuer or mutual fund in New Brunswick, on a basis to be determined at the discretion of the Commission or the Executive Director.

(b) The existing provision is as follows:

168(2) A reporting issuer or mutual fund in New Brunswick that is subject to a review under this section shall, at such time or times as the Commission or Executive Director requires, deliver to the Commission or Executive Director any information and documents relevant to the disclosures that have been made or that ought to have been made by the reporting issuer or mutual fund.

168(4) A reporting issuer or mutual fund in New Brunswick, or any person acting on behalf of a reporting issuer or mutual fund in New Brunswick, shall not make any representation, orally or in writing, that the Commission has in any way passed judgment on the merits of the disclosure record of the reporting issuer or mutual fund.

Section 176

(a) Consequential amendment.

(b)

i) Consequential amendment.

ii) The existing provision is as follows:

(e) a manager or custodian of assets, shares or units of a mutual fund;

Section 177

Consequential amendment.

Section 178

(a) The existing provision is as follows:

177(1) All information or evidence obtained pursuant to an investigation under this Part, including a report referred to in section 176, is confidential and shall not be disclosed by any person except

(a) to the person’s legal counsel,

(b) where authorized in writing by the Executive Director, or

(b) New provision.

Section 179

The existing provision is as follows:

178(1) Where the Executive Director is of the opinion that it would not be prejudicial to the public interest to do so, the Executive Director may, on behalf of the Commission, provide information to and receive information from other securities or financial regulatory authorities, exchanges, self-regulatory bodies or organizations, law enforcement agencies and other governmental or regulatory authorities, both in Canada and elsewhere.

178(2) Any information received by the Commission under subsection (1) is confidential and shall not be disclosed by any person except where authorized in writing by the Executive Director.

Section 180

(a) Consequential amendment.

(b) Consequential amendment.

(d) New provision.

Section 181

Consequential amendment.

Section 182

(a)

i) The existing provision is as follows:

(c) an order that trading in any securities, or in securities or a class of securities specified in the order, by or of a person cease permanently or for such period as is specified in the order;

ii) The existing provision is as follows:

(f) if the Commission is satisfied that New Brunswick securities law has not been complied with, an order that a release, report, preliminary prospectus, prospectus, return, financial statement, information circular, take-over bid circular, issuer bid circular, offering memorandum, proxy solicitation or any other document described in the order

iii) Consequential amendment.

iv) Consequential amendment.

v) Consequential amendment.

vi) New provision.

(b) New provision.

(d) Consequential amendment.

Section 183

(a) The existing provision is as follows:

(c) an order directing that a release, report, preliminary prospectus, prospectus, return, financial statement, information circular, take-over bid circular, issuer bid circular, offering memorandum, proxy solicitation or any other document described in the order

(b) The existing provision is as follows:

(o) an order requiring the person to disgorge to the Minister any amounts obtained as a result of the non-compliance with New Brunswick securities law;

Section 184

New provisions.

Section 185

Consequential amendment.

Section 186

Consequential amendment.

Section 187

(a) The existing provision is as follows:

191(1) Notwithstanding any other provision of this Act, a proceeding under this Act may be disposed of by

(a) an agreement approved by the Commission,

(b) a written undertaking made by a person to the Commission that has been accepted by the Commission, or

(c) if the parties have waived the hearing or compliance with any requirement of this Act, a decision of the Commission made without a hearing or without compliance with the requirement of this Act.

(b) Consequential amendment.

Section 188

Consequential amendment.

Section 189

(a) The existing provision is as follows:

195(1) A person directly affected by a final decision of the Commission, other than a decision under section 55 or 80, may with leave of a judge of the Court of Appeal appeal to the Court of Appeal within 30 days after the later of the making of the final decision and the issuing of the reasons for the final decision.

(b) Consequential amendment.

Section 190

New provisions.

Section 191

Consequential amendment.

Section 192

(a) Consequential amendment.

(b) New provisions.

Section 193

The existing provision is as follows:

199(4) If, on 3 consecutive occasions, information or material sent by an issuer to a security holder in accordance with paragraph (1)(b) is returned, the issuer is not required to send any further information or material to the security holder until the security holder informs the issuer in writing of the security holder’s new address.

Section 194

(a)

i) Consequential amendment.

ii) New regulation-making authority.

iii) The existing provision is as follows:

(k) respecting requirements for the disclosure or provision of information or material to the public, the Commission or the Executive Director by registrants, including without limiting the generality of the foregoing, authorizing the Commission to require the provision of such information or material as the Commission considers appropriate in the form it requires;

iv) A correction is made in the French version.

v) New regulation-making authority.

vi) Consequential amendment.

vii) Consequential amendment.

viii) Consequential amendment.

ix) Consequential amendment.

x) The existing provision is as follows:

(ii) varying the requirements under this Act to facilitate, expedite or regulate the distribution of securities or the issuing of receipts, including without limiting the generality of the foregoing, by establishing

(i) requirements in respect of distributions of securities by means of a prospectus incorporating other documents by reference,

(ii) requirements in respect of distributions of securities by means of a simplified or summary prospectus or other form of disclosure document,

(iii) requirements in respect of distributions of securities on a continuous or delayed basis,

(iv) requirements in respect of pricing of distributions of securities after the issuance of a receipt for the prospectus filed in relation to the securities,

(v) procedures for the issuing of receipts for prospectuses after expedited or selective review,

(vi) provisions for the incorporation by reference of certain documents in a prospectus and the effect, including from a liability and evidentiary perspective, of modifying or superseding statements,

(vii) provisions for eligibility requirements to obtain a receipt for, or distribute under, a particular form of prospectus and the loss of that eligibility, and

(viii) provisions for varying withdrawal rights;

xi) New regulation-making authority.

xii) New regulation-making authority.

xiii) New regulation-making authority.

xiv) Consequential amendment.

xv) Consequential amendment.

xvi) New regulation-making authority.

xvii) The existing provision is as follows:

(tt) requiring issuers or other persons to comply, in whole or in part, with Part 7 or regulations or rules made under paragraph (ss);

xviii) The existing provision is as follows:

(uu) respecting the circumstances under which an issuer or class of issuers that would not otherwise be a reporting issuer shall be a reporting issuer;

xix) Consequential amendment.

xx)

A) Consequential amendment.

B) Consequential amendment.

C) Consequential amendment.

D) New regulation-making authority.

xxi) The existing provision is follows:

(yy) respecting requirements for the validity and solicitation of proxies and varying any requirements under this Act in relation to the validity and solicitation of proxies;

xxii) Consequential amendment.

xxiii) New regulation-making authority.

xxiv)

A) The existing provision is as follows:

(eee) regulating mutual funds and non-redeemable investment funds and the distribution and trading of the securities of the funds, including without limiting the generality of the foregoing,

B) The existing provision is as follows:

(vi) prescribing requirements in relation to the determination of the net asset value of mutual funds and authorizing the Commission to make that determination,

C) The existing provision is as follows:

(ix) respecting sales charges imposed by a distribution company or contractual plan service company under a contractual plan on purchasers of shares or units of a mutual fund, and commissions or sales incentives to be paid to registrants in connection with the securities of a mutual fund,

D) The existing provision is as follows:

(xi) prescribing procedures applicable to mutual funds, registrants and any other person in respect of sales and redemptions of mutual fund securities and payments for sales and redemptions, and

E) The existing provision is as follows:

(xii) prescribing requirements in relation to promoters, advisers or persons who administer or participate in the administration of the affairs of mutual funds or non-redeemable investment funds;

F) New regulation-making authority.

xxv) The existing provision is as follows:

(jjj) varying the application of this Act to foreign issuers to facilitate distributions, compliance with requirements applicable or relating to reporting issuers and the making of take-over bids, issuer bids, insider bids, going-private transactions and related party transactions where the foreign issuers are subject to requirements of the laws of other jurisdictions that the Commission considers are adequate in light of the purposes and principles of this Act;

xxvi) New regulation-making authority.

xxvii) Consequential amendment.

xxviii) New regulation-making authority.

xxix) New regulation-making authority.

xxx) Consequential amendment.

xxxi) New regulation-making authority.

xxxii) New regulation-making authority.

xxxiii) The existing provision is as follows:

(sss) varying the requirements under this Act to permit or require methods of filing or delivery, to or by the Commission, issuers, registrants, security holders or others, of documents, information or other communications required under or governed by New Brunswick securities law;

xxxiv) The existing provision is as follows:

(vvv) prescribing the circumstances under which persons shall be deemed to have signed or certified documents on an electronic or computer-based system for any purpose of this Act;

xxxv) Consequential amendment.

xxxvi) New regulation-making authority.

xxxvii) Consequential amendment.

(b)

i) Consequential amendment.

ii) Consequential amendment.

iii) Consequential amendment.

(d) Consequential amendment.

Section 195

The existing provision is as follows:

204(1) No agreement, memorandum of understanding or arrangement between the Commission and another securities or financial regulatory authority, any self-regulatory organization or body or any jurisdiction shall come into effect without the approval of the Minister.

204(2) An agreement, memorandum of understanding or arrangement referred to in subsection (1) comes into effect on the day that the Minister approves it, unless the Minister specifies an effective date.

Section 196

(a) Consequential amendment.

(b) The existing provision is as follows:

208 Except where exemption applications are otherwise provided for in New Brunswick securities law, the Commission may, on the application of an interested person or on the Commission’s own motion, and if in the opinion of the Commission it would not be prejudicial to the public interest, make an order, subject to such terms and conditions as it considers appropriate, exempting, in whole or in part, a person or class of persons from any requirement of New Brunswick securities law.

Section 197

(a) Consequential amendment.

(b) Consequential amendment.

(d) Consequential amendment.

(e) Consequential amendment.

(f) Consequential amendment.

(g) Consequential amendment.

(h) Consequential amendment.

Section 198

Commencement provision.