On November 23, 2007, the Canadian Securities Administrators issued a notice (the "CSA Notice") to update market participants on the status of its initiative to repeal and replace Multilateral Instrument 52-109 - Certification of Disclosure in Issuers' Annual and Interim Filings and the related forms and companion policy (together, "MI 52-109"). The proposed amended version of MI 52-109 will permit venture issuers1 to file new forms of certification of annual filings and interim filings (the "New Certificates").
Although the CSA Notice did not provide a date when the proposed amended version of MI 52-109 is expected to be effective, as of today's date, most provincial securities commissions have already issued exemptive relief to permit a venture issuer that is a reporting issuer in those provinces to use the New Certificates for periods ending on or after December 31, 2007.
Like the existing MI 52-109 certificates, the New Certificates require certification that the filings do not contain any misrepresentation and the financial statements fairly present the financial condition of the issuer. However, the New Certificates no longer require certification about the design and evaluation of disclosure controls and procedures or internal control over financial reporting by venture issuers. Instead, the New Certificates will be accompanied by an explanation for investors on how the certificates differ from the interim and annual certificates required to be filed by reporting issuers that are not venture issuers.
If a venture issuer does not have a chief executive officer or a chief financial officer, the New Certificates permit officers who substantially fulfill the role of chief executive officer or chief financial officer to sign the applicable certificate. Because they have to certify that they have exercised reasonable diligence, the certifying officers are responsible for ensuring that processes are in place to provide them with sufficient knowledge to support the representations they are making in the certificate.
Venture issuers that would like a copy of the New Certificates are invited to contact any of the authors or Gowlings' professionals listed below.