The Canadian Securities Administrators (“CSA”) recently released its annual report on the enforcement activities of its members (the “Report”). The Report provides a snapshot of the enforcement activities taken by Canadian securities regulators over the last 12 months.

The number of enforcement proceedings commenced have increased slightly from 2020 and are significantly higher than 2019. While the number of whistleblower complaints and the total quantum of fines, penalties and general compensation have decreased from 2020, we do not believe this signals any intention on the part of regulators to diminish their enforcement efforts.

Summary of 2021 Results[1]

Commenced Cases (by notice of hearing or statement of allegations, sworn information before the courts or, in Québec, served statement of offence)

59

52

38

Concluded Matters (final decision issued or settlement reached)

52

43

75

Fines, Administrative Penalties & Other (penalties, disgorgement, voluntary payments included)

$15.5 million

$20.4 million

$45.5 million

Preventative Measures

Market bans

     

The Report signifies an increase in fines for illegal distribution, which is typically the single largest source of enforcement activity and outcomes. In 2021, the majority of fines were for illegal distribution, including for the sale of securities that failed to comply with securities laws regarding registration, trading, and/or disclosure.

CSA members seek to protect investors by issuing or obtaining interim cease-trade orders or freezing assets while they conduct investigations. Asset-freeze orders are implemented to prevent the loss of assets – for example, bank deposits and personal property, including vehicles and buildings – pending the completion of investigations. Although investor warnings and alerts are not formal enforcement efforts, they are viewed by the CSA as disruption efforts to prevent or deter improper conduct.

The CSA considers its members’ whistleblower programs as critical in their efforts to combat misconduct. Ontario remains the only jurisdiction that provides financial rewards to whistleblowers. Generally, the programs offer protections to whistleblowers such as confidentiality, the option to report anonymously, and anti-reprisal protections

Quasi-Criminal & Criminal Activity

In 2021, five cases were commenced under the Criminal Code compared to one in 2020. Although the number of accused prosecuted in 2021 is unknown, four were found guilty and one was sentenced to a six-year jail term.

The CSA members also prosecuted quasi-criminal enforcement proceedings under their respective securities legislation in courts in Ontario and Québec. While the number of accused prosecuted in 2021 is unknown, six of them were sentenced to a total of nine years of jail time ranging from 90 days to 36 months.

The CSA’s Investigation and Enforcement Efforts have adapted to the Pandemic

While some of the effects of the pandemic persist, the CSA reported that it continues to focus on adapting, investigating, and taking action in new and creative ways by leveraging technology – which is reflected in the increase in enforcement activity.

Activities Across the Border

Similarly, the United States SEC reported a 7% increase in enforcement action in the fiscal year 2021 in comparison to prior years. In 2020, "the SEC brought a diverse mix of 715 enforcement actions, including 405 standalone actions."[2] Here, the SEC and CSA are steadily increasing their enforcement efforts to bring action against wrongdoings after the unprecedented impact of the COVID-19 pandemic. The SEC reported a record-breaking year for its whistleblower awards of $564 million to 108 whistleblowers, thereby surpassing $1 billion in awards over the life of the program.[3] For context, this compares to $9 million in awards over the (shorter) life of the OSC’s program.

In addition, several members of the CSA participated in a 20-country investigation which led to the United States SEC charging defendants involved in “multi-year fraudulent penny stock schemes that generated more than USD$194 million in illicit proceeds.”[4]