Certain exempt market filings are now required to be made on the System for Electronic Document Analysis and Retrieval (SEDAR) rather than in paper format in all Canadian jurisdictions other than Ontario and British Columbia. Issuers making exempt market filings in British Columbia and Ontario must do so through either the British Columbia Securities Commission’s (BCSC) eServices or the Ontario Securities Commission’s (OSC) Electronic Filing Portal. The new filing requirement came into force on May 24, 2016.
On April 21, 2016, the Canadian Securities Administrators (CSA) released Multilateral CSA Staff Notice 13-323Frequently Asked Questions About Making Exempt Market Offering and Disclosure Filings on SEDAR (the Staff Notice) aimed at assisting issuers in making certain exempt market filings on SEDAR. Exempt market filings required to be made on SEDAR include Form 45-106F1 Report of Exempt Distribution (Form 45-106F1) and the related schedules, materials required to be filed or delivered in connection with the offering memorandum prospectus exemption, the start-up crowdfunding prospectus exemption, the crowdfunding prospectus exemption, disclosure documents delivered to subscribers under section 37.2 of the Securities Regulation (Quebec) and financial statements of “mutual funds in the jurisdiction” as defined in National Instrument 81-106Investment Funds Continuous Disclosure. Documents used in connection with prospectus exemptions not enumerated in the Staff Notice are not required to be filed on SEDAR.
Access levels for the various filings are indicated in the Staff Notice and fall into three categories:
- Auto-public – public immediately, displays on SEDAR.com within 15 minutes
- Private – initially private, but if the regulator marks it public, it will display on SEDAR.com within 15 minutes; however, the participating jurisdictions have indicated in the Staff Notice that they do not anticipate marking such documents public to be displayed on SEDAR.com
- Private non-public – will remain private, never displays on SEDAR.com
Notably, a Form 45-106F1 is marked “auto-public”, as is an offering memorandum filed in connection with the offering memorandum prospectus exemption. The confidential purchaser information in the schedules to Form 45-106F1 are “private non-public” and are to be detached from the body of the report before filing on SEDAR. Filers will be prompted by SEDAR to acknowledge that the schedules have been removed from Form 45-106F1 prior to filing and pop-up warnings will notify the filer that the schedules must be filed separately in the Excel template format created by the CSA.
The Staff Notice provides guidance on filing reports of exempt distribution between May 24, 2016 and June 30, 2016, at which time all CSA jurisdictions will adopt a new harmonized report of exempt distribution. Until the new form of report comes into effect, both a Form 45-106F1 and a Form 45-106F6 British Columbia Report of Exempt Distribution will be required to be filed in the relevant jurisdictions.
A $25 SEDAR system fee will apply to both reporting and non-reporting issuers who file Form 45-106F1 on SEDAR. Such fee will be in addition to the filing fees that issuers currently pay when filing a report of exempt distribution in each applicable jurisdiction. The $25 fee will not apply to voluntary filings made before May 24, 2016 nor to other exempt market filings.
Foreign issuers that fall within the definition of “foreign issuer (SEDAR)” as defined in National Instrument 13-101 System for Electronic Document Analysis and Retrieval are not required to make electronic filings on SEDAR but may elect to do so.
As noted above, the requirement to file exempt market filings through SEDAR commenced on May 24, 2016. For further information please see, Multilateral CSA Staff Notice 13-323 Frequently Asked Questions About Making Exempt Market Offering and Disclosure Filings on SEDAR.