Home| Updated to: June 11, 2008 This is not an official version. |
Search this Act Information table |
C.C.S.M. c. S50
The Securities Act
| Table of Contents | Regulations |
| Sections: 1 - 99 | 100 - 197 |
PART X
PROXIES AND PROXY SOLICITATION
100 Repealed.
S.M. 2001, c. 26, s. 30; S.M. 2006, c. 11, s. 15; S.M. 2007, c. 12, s. 29.
Reporting issuer to comply with proxy regulations
101 The management of a reporting issuer must comply with the regulations respecting proxies and proxy solicitation.
S.M. 2001, c. 26, s. 31; S.M. 2006, c. 11, s. 16.
102 Repealed.
S.M. 2001, c. 26, s. 32; S.M. 2006, c. 11, s. 17.
103(1) Repealed, S.M. 2006, c. 11, s. 17.
103(2) Upon the application of any interested person or company, the commission may
(a) if a requirement of this Part conflicts with a requirement of the laws of the jurisdiction in which a company is incorporated; or
(b) if otherwise satisfied in the circumstances of the particular case that there is adequate justification for so doing;
make an order on such terms and conditions as seem to the commission just and expedient exempting, in whole or in part, a person or company from the requirements of this Part.
103(3) Repealed, S.M. 2006, c. 11, s. 17.
S.M. 2001, c. 26, s. 33; S.M. 2006, c. 11, s. 17.
104 Repealed.
S.M. 2001, c. 26, s. 34; S.M. 2006, c. 11, s. 17.
Where vote by ballot not required
105 If the aggregate number of securities represented at a meeting by proxies required to be voted for or against a particular matter or group of matters carries, to the knowledge of the chair of the meeting, less than 5% of the voting rights attached to the securities entitled to vote and represented at the meeting, the chair of the meeting has the right not to conduct a vote by way of ballot on any such matter or group of matters unless a poll is demanded at the meeting or, if the reporting issuer is a company, is required by the laws of the jurisdiction of its incorporation.
106(1) The commission may in its discretion direct the Director to refuse to issue a receipt for a prospectus until such time as the issuer proposing to distribute securities to be offered by the prospectus delivers or causes to be delivered to the commission undertakings satisfactory to the commission in which the issuer and, if it is a company, such of its directors and officers as the commission may designate undertake to comply with this Part or such of the provisions thereof as the commission may specify.
106(2) The commission may if satisfied that an undertaking given under subsection (1) has not been complied with, direct the Director either to refuse to issue a receipt for a prospectus relating to securities of the issuer that previously delivered an undertaking to the commission, or to refuse to issue such receipt unless the issuer and, if it is a company, such of its directors and officers as the commission may designate have agreed to comply with such terms and conditions relating to proxies and proxy solicitation as may be imposed by the commission.
106(3) Repealed, S.M. 2006, c. 11, s. 17.
S.M. 2001, c. 26, s. 36; S.M. 2006, c. 11, s. 17; S.M. 2007, c. 12, s. 3.
107 Repealed.
PART XI
INSIDER TRADING
108(1) In this Part
"control or direction over" a share does not include the right to cast a vote in respect of that share at a meeting by virtue only of a proxy which complies with the regulations; (« contrôle ou direction sur une action »)
"material change" where used in relation to the affairs of a reporting issuer means a change in the business, operations or capital of the reporting issuer that would reasonably be expected to have a significant effect on the market price or value of any of the securities of the reporting issuer and includes a decision to implement such a change made by the board of directors of the reporting issuer, if it is a company, or by senior management of the reporting issuer who believe that confirmation of the decision by the board of directors is probable; (« changement important »)
"material fact" where used in relation to securities issued or proposed to be issued means a fact that significantly affects, or would reasonably be expected to have a significant effect on, the market price or value of such securities; (« fait important »)
108(2) For the purposes of this Part
(a) every director or senior officer of a company that is itself an insider of a reporting issuer shall be deemed to be an insider of that reporting issuer;
(b) the acquisition or disposition by an insider of a put, call, or other transferable option with respect to a security shall be deemed a change in the beneficial ownership of the security to which the transferable option relates; and
(c) for the purpose of reporting under section 109, ownership shall be deemed to pass at such time as an offer to sell is accepted by the purchaser or his agent or an offer to buy is accepted by the vendor or his agent.
S.M. 2001, c. 26, s. 37; S.M. 2006, c. 11, s. 18; S.M. 2007, c. 12, s. 30.
Designating a person or company as an insider
108.1 If the commission considers that it is not prejudicial to the public interest to do so, the commission may, after a hearing, make an order designating
(a) a person or company to be an insider; or
(b) an issuer or class of issuers to be, or not to be, a mutual fund or a non-redeemable investment fund.
109(1) Within 10 days after becoming an insider of a reporting issuer, a person or company shall file with the commission a report, as of the day of becoming an insider, of the person or company's direct or indirect beneficial ownership of, or control or direction over, the securities of the reporting issuer.
109(2) An insider whose direct or indirect beneficial ownership of, or control or direction over, securities of the reporting issuer changes in any manner after he or she becomes an insider shall, within 10 days after the change, file with the commission a report, as of the day of the change, of his or her direct or indirect beneficial ownership of, or control or direction over, the securities. The report shall set out the details, required by the regulations, of each transaction involved in the change.
S.M. 2001, c. 26, s. 38; S.M. 2006, c. 11, s. 19.
110(1) All reports filed with the commission under section 109 shall be open to public inspection in the manner specified in the regulations.
110(2) The commission may publish a summary of the information contained in the reports filed under section 109 in such manner as it deems advisable, and may request or authorize the publication of the summary of the information in any publication issued by the Government of Canada or an agency thereof or by the government of another province or an agency thereof.
111 Repealed.
S.M. 2001, c. 26, s. 40; S.M. 2006, c. 11, s. 20.
111.1 If a person or company acquires direct or indirect beneficial ownership of, or direct or indirect control or direction over, securities of a prescribed type or class of a reporting issuer representing a prescribed percentage of the outstanding securities of that type or class, the person or company, and any person or company acting jointly or in concert with the person or company, shall
(a) make and file disclosure in accordance with the regulations; and
(b) comply with any prohibitions in the regulations on transactions in the reporting issuer's securities.
Trading where undisclosed change
112(1) No person or company 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.
112(2) No reporting issuer and no person or company in a special relationship with a reporting issuer shall inform, other than in the necessary course of business, another person or company of a material fact or material change with respect to the reporting issuer before the material fact or material change has been generally disclosed.
112(3) No person or company that proposes,
(a) to make a take-over bid, as defined in Part IX, for the securities of a reporting issuer;
(b) to become a party to a reorganization, amalgamation, merger, arrangement or similar business combination with a reporting issuer; or
(c) to acquire a substantial portion of the property of a reporting issuer,
shall inform another person or company of a material fact or material change with respect to the reporting issuer before the material fact or material change has been generally disclosed except where the information is given in the necessary course of business to effect the take-over bid, business combination or acquisition.
112(4) No person or company shall be found to have contravened subsection (1), (2) or (3) if the person or company proves that
(a) the person or company reasonably believed that the material fact or material change had been generally disclosed; or
(b) the material fact or material change was known or ought reasonably to have been known to the seller or purchaser.
112(5) For the purposes of this section, "person or company in a special relationship with a reporting issuer" means,
(a) a person or company that is an insider, affiliate or associate of,
(i) the reporting issuer,
(ii) a person or company that is proposing to make a take-over bid, as defined in Part IX, for the securities of the reporting issuer, or
(iii) a person or company that 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 or company that 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 or company described in subclause (a)(ii) or (iii);
(c) a person who is a director, officer or employee of the reporting issuer or of a person or company described in subclause (a)(ii) or (iii) or clause (b);
(d) a person or company that learned of the material fact or material change with respect to the reporting issuer while the person or company was a person or company described in clause (a), (b), or (c);
(e) a person or company that learns of a material fact or material change with respect to the reporting issuer from any other person or company described in this subsection, including a person or company described in this clause, and knows or ought reasonably to have known that the other person or company is a person or company in such a relationship.
112(6) For the purpose of subsection (1), a security of the reporting issuer shall be deemed to include,
(a) a put, call, option or other right or obligation to purchase or sell securities of the reporting issuer; or
(b) a security, the market price of which varies materially with the market price of the securities of the reporting issuer.
113(1) Every person or company in a special relationship with a reporting issuer who purchases or sells 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 is liable to compensate the seller or purchaser of the securities for damages as a result of the trade unless the person or company in the special relationship with the reporting issuer proves that,
(a) the person or company reasonably believed that the material fact or material change had been generally disclosed; or
(b) the material fact or material change was known or ought reasonably to have been known to the seller or purchaser.
113(2) Every,
(a) reporting issuer;
(b) person or company in a special relationship with a reporting issuer; and
(c) person or company that proposes,
(i) to make a take-over bid, as defined in Part IX, for the securities of a reporting issuer,
(ii) to become a party to a reorganization, amalgamation, merger, arrangement or similar business combination with a reporting issuer, or
(iii) to acquire a substantial portion of the property of a reporting issuer,
and who informs another person or company of a material fact or material change with respect to the reporting issuer that has not been generally disclosed is liable to compensate for damages any person or company that thereafter sells securities of the reporting issuer to or purchases securities of the reporting issuer from the person or company that received the information unless the person or company in the special relationship with the reporting issuer proves that
(d) the informing person or company reasonably believed that the material fact or material change had been generally disclosed;
(e) the material fact or material change was known or ought reasonably to have been known to the seller or purchaser, as the case may be;
(f) in the case of an action against a reporting issuer or a person in a special relationship with the reporting issuer, the information was given in the necessary course of business; or
(g) in the case of an action against a person or company described in subclause (c)(i),(ii) or (iii), the information was given in the necessary course of business to effect the take-over bid, business combination or acquisition.
113(3) Any person or company that has access to information concerning the investment program of a mutual fund in Manitoba or the investment portfolio managed for a client by a dealer acting as a portfolio manager and uses that information for his or its direct benefit or advantage to purchase or sell securities of a reporting issuer for his or its account where the portfolio securities of the mutual fund or the investment portfolio managed for the client by the dealer include securities of that reporting issuer is accountable to the mutual fund or the client of the dealer, as the case may be, for any benefit or advantage received or receivable as a result of such purchase or sale.
113(4) Every person or company that is an insider, affiliate or an associate of a reporting issuer that,
(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 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 or company as a result of the purchase, sale or communication, as the case may be, unless the person or company proves that the person or company reasonably believed that the material fact or material change had been generally disclosed.
113(5) Where more than one person or company in a special relationship with a reporting issuer is liable under subsection (1) or (2) as to the same transaction or series of transactions, their liability is joint and several.
113(6) In assessing damages under subsection (1) or (2), the court shall consider,
(a) if the plaintiff is a purchaser, the price that he paid for the security less the average market price of the security in the 20 trading days following general disclosure of the material fact or material change; or
(b) if the plaintiff is a vendor, the average market price of the security in the 20 trading days following general disclosure of the material fact or material change less the price that he received for the security,
but the court may instead consider such other measures of damages as may be relevant in the circumstances.
113(7) For the purposes of this section, "a person or company in a special relationship with a reporting issuer" has the same meaning as in subsection 112(5).
113(8) For the purposes of subsections (1) and (2), a security of the reporting issuer shall be deemed to include,
(a) a put, call, option or other right or obligation to purchase or sell securities of the reporting issuer; or
(b) a security, the market price of which varies materially with the market price of the securities of the reporting issuer.
S.M. 2001, c. 26, s. 42; S.M. 2006, c. 11, s. 21.
114(1) Upon application by any person or company that was at the time of the purchase, sale or communication referred to in subsection 113(4), or is at the time of the application, an owner of securities of the reporting issuer, the Court of Queen's Bench may, if satisfied that
(a) the person or company has reasonable grounds for believing that the reporting issuer has a cause of action under subsection 113(4); and
(b) either
(i) the reporting issuer has refused or failed to commence an action under subsection 113(4) within 60 days after receipt of a written request from the person or company so to do, or
(ii) the reporting issuer has failed to prosecute diligently an action commenced by it under subsection 113(4);
make an order upon terms as to security for costs and otherwise as to the judge seems fit, requiring the commission to commence or continue an action in the name of, and on behalf of, the reporting issuer to enforce the liability created by subsection 113(4).
Notice to reporting issuer and commission
114(2) The reporting issuer and the commission shall be given notice of any application under subsection (1) and are parties to the application and may appear and be heard thereon.
Order to require reporting issuer to co-operate
114(3) Every order made under subsection (1) shall provide that the reporting issuer shall co-operate fully with the commission in the institution and prosecution of the action and shall make available to the commission all books, records, documents and other material or information known to the reporting issuer or reasonably ascertainable by the reporting issuer relevant to the action.
S.M. 2001, c. 26, s. 43; S.M. 2006, c. 11, s. 22.
115 Repealed.
Exemption and extension orders
116 The commission may, with or without conditions, make an order extending the time for complying with, or exempting a person or company from complying with, a requirement of this Part or the regulations made for the purposes of this Part, if
(a) the requirement of this Part or the regulations conflicts with a requirement of the laws of the jurisdiction in which the reporting issuer is incorporated;
(b) the laws of the jurisdiction in which the reporting issuer is incorporated contain a substantially similar requirement; or
(c) the commission is satisfied that the order is otherwise justified.
S.M. 1991-92, c. 22, s. 5; S.M. 2001, c. 26, s. 45; S.M. 2006, c. 11, s. 23; S.M. 2007, c. 12, s. 34.
117(1) The commission may in its discretion direct the Director to refuse to issue a receipt for a prospectus until such time as the issuer proposing to distribute securities to be offered by the prospectus delivers or causes to be delivered to the commission undertakings satisfactory to the commission in which the issuer, if it is a company, undertakes to cause its present and future directors and senior officers to comply with this Part and the regulations made for the purposes of this Part, and in which the directors and senior officers of the issuer then in office undertake to comply with this Part and those regulations.
117(2) The commission may in its discretion, if satisfied that an undertaking given under subsection (1) has not been complied with, direct the Director either to refuse to issue a receipt for a prospectus relating to securities of an issuer which previously delivered an undertaking to the commission, or to refuse to issue the receipt unless the issuer, its directors and its senior officers, have agreed to comply with terms and conditions relating to insider trading as may be imposed by the commission.
S.M. 2001, c. 26, s. 46; S.M. 2002, c. 47, s. 16; S.M. 2007, c. 12, s. 35.
PART XII
118 and 119 Repealed.
S.M. 2001, c. 26, s. 47 and 48; S.M. 2006, c. 11, s. 23.
120 A reporting issuer must file with the commission the documents required by this Act and the regulations, including its financial statements and auditor's report. The documents must be prepared and filed in accordance with the regulations.
S.M. 2001, c. 26, s. 49; S.M. 2006, c. 11, s. 24.
121 to 130 Repealed.
S.M. 2001, c. 26, s. 50 to 58; S.M. 2006, c. 11. s. 25.
131 Upon the application of a person or company that is or may become a reporting issuer, the commission may make an order, with or without conditions, exempting the person or company in whole or in part from the requirements of this Part or the regulations, if the commission is of the opinion that the exemption would not prejudice the public interest and is adequately justified in the circumstances.
S.M. 1991-92, c. 22, s. 6; S.M. 2001, c. 26, s. 59; S.M. 2006, c. 11, s. 26.
132 The commission may in its discretion direct the Director to refuse to issue a receipt for a prospectus until the issuer proposing to distribute the securities to be offered by the prospectus delivers or causes to be delivered to the commission undertakings satisfactory to the commission in which the issuer undertakes to comply with this Part.
S.M. 2001, c. 26, s. 60; S.M. 2007, c. 12, s. 3.
133 The commission may in its discretion, if satisfied that an undertaking given under section 132 has not been complied with, direct the Director either to refuse to issue a receipt for a prospectus relating to securities of the issuer that previously delivered an undertaking to the commission or to refuse to issue such receipt unless the issuer has agreed to comply with the terms and conditions relating to financial disclosure imposed by the commission.
S.M. 2001, c. 26, s. 61; S.M. 2007, c. 12, s. 3.
134 The financial statements, auditor's reports thereon, interim financial statements, and additional financial information, filed with the commission under this Part shall be open to public inspection at the offices of the commission during normal business hours of the commission.
135 Repealed.
S.M. 2001, c. 26, s. 62; S.M. 2006, c. 11, s. 27.
PART XIII
OFFENCES AND PENALTIES
136(1) Every person or company that
(a) makes a statement in any material, evidence, or information submitted or given under this Act or the regulations to the commission, its representative, or the Director, or to any person appointed to make an investigation or audit under this Act, that, at the time, and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact or that omits to state any material fact, the omission of which makes the statement false or misleading; or
(b) makes a statement in any application, report, prospectus, return, financial statement or other document, required to be filed or furnished under this Act or the regulations that, at the time, and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or that omits to state any material fact, the omission of which makes the statement false or misleading; or
(c) contravenes this Act, the regulations or a rule specified in a regulation under clause 149(cc); or
(d) fails to observe or comply with any order, direction or other requirement made under this Act or the regulations;
is guilty of an offence and is liable on summary conviction to a fine of not more than $5,000,000. or imprisonment for a term of not more than five years less a day, or both.
136(2) No person or company is guilty of an offence under clause (1)(a) or (b) if
(a) he did not know that the statement was false or misleading;
(b) in the exercise of reasonable diligence he could not have known that the statement was false or misleading; and
(c) upon becoming aware that the statement was false or misleading, he forthwith took steps to notify the commission that the statement was false or misleading.
136(3) Where a company or a person other than an individual is guilty of an offence under subsection (1), every director or officer of such company or person who authorized, permitted, or acquiesced in the offence is guilty of the offence and is liable on summary conviction to a fine of not more than $5,000,000. or imprisonment for a term of not more than five years less a day, or both.
Contravention of 112(1), (2) or (3)
136(4) Where a person or company has contravened subsection 112(1), (2) or (3) and the person or company has made a profit by reason of the contravention, the fine to which the person or company is liable shall be not less than the profit made by the person or company by reason of the contravention and not more than the greater of,
(a) $5,000,000.; and
(b) an amount equal to triple the profit made by such person or company by reason of the contravention;
and the maximum fine referred to in subsection (1) or (3) does not apply in such circumstances.
136(5) For the purposes of subsection (4), "profit" means,
(a) if the accused purchased securities in contravention of subsection 112(1), the average market price of the security in the 20 trading days following general disclosure of the material fact or material change less the amount that the accused paid for the security;
(b) if the accused sold securities in contravention of subsection 112(1), the amount that the accused received for the security less the average market price of the security in the 20 trading days following general disclosure of the material fact or material change;
(c) if the accused informed another person or company of a material fact or material change in contravention of subsection 112(2) or (3) and received any direct or indirect consideration for providing such information, the value of the consideration received.
S.M. 1989-90, c. 54, s. 7; S.M. 1993, c. 48, s. 38; S.M. 1996, c. 50, s. 4; S.M. 2006, c. 11, s. 28; S.M. 2007, c. 12, s. 3 and 36.
137 Notwithstanding any other Act of the Legislature, proceedings to prosecute a person or company for an offence under this Act may be commenced at any time within two years after the facts upon which the proceedings are based first come to the knowledge of the commission; but the proceedings to prosecute a person or company for an offence under this Act shall not be commenced after eight years after the date on which the offence was committed.
138(1) An information or complaint in respect of any contravention of this Act may be for one or more offences; and no information, complaint, summons, warrant, conviction, or other proceedings in any prosecution under this Act is objectionable or insufficient by reason of the fact that it relates to two or more offences.
138(2) When a contravention of section 6 or 37, subsection 62(3), section 68, 73, 74, 76, 77 or 139, subsection 148(3) or section 159 continues for more than one day, the person or company is guilty of a separate offence for each day the contravention continues.
PART XIV
GENERAL PROVISIONS
139(1) No person or company shall carry on business as a stock exchange in the province unless it is recognized in writing as such by the commission.
139(2) The commission may, where it appears to it to be in the public interest, make any direction, order, determination, or ruling
(a) with respect to the manner in which any stock exchange in the province carries on business; or
(b) with respect to an internal regulation, ruling or instruction of any stock exchange in the province; or
(c) with respect to trading on or through the facilities of any stock exchange in the province, or with respect to any security listed and posted for trading on any stock exchange in the province; or
(d) to ensure that companies whose securities are listed and posted for trading on any stock exchange in the province comply with this Act and the regulations.
140 Every stock exchange in the province shall keep a record showing the time at which each transaction on the exchange took place, and shall supply to any customer of any member of the exchange, upon production of a written confirmation of any transaction with the member, particulars of the time at which the transaction took place and verification or otherwise of the matters set forth in the confirmation.
Meaning of "misrepresentation" in certain sections
140.1 The following definitions apply in sections 141, 141.1 and 141.1.1.
"material fact", in relation to securities issued or proposed to be issued, means a fact that would reasonably be expected to have a significant effect on the market price or value of the securities. (« fait important »)
"misrepresentation" means
(a) an untrue statement of a material fact;
(b) an omission to state a material fact that is required to be stated; or
(c) an omission to state a material fact that is necessary to be stated in order for a statement not to be misleading. (« information fausse et trompeuse »)
Statutory rights — damages re misrepresentation in prospectus
141(1) If a prospectus contains a misrepresentation, a purchaser who purchases a security offered by it during the distribution period is deemed to have relied on the misrepresentation and has a right of action for damages against
(a) the issuer or a selling security holder on whose behalf the distribution is made;
(b) each underwriter of the securities that is in a contractual relationship with the issuer or selling security holder on whose behalf the distribution is made;
(c) every director of the issuer at the time the prospectus was filed;
(d) every person or company whose consent to disclosure of information in the prospectus has been filed, but only with respect to reports, opinions or statements that have been made by them; and
(e) every person or company, other than the ones referred to in clauses (a) to (d), who signed the prospectus.
Statutory rights — rescission re misrepresentation in prospectus
141(2) If a prospectus contains a misrepresentation, a purchaser who purchases a security offered by it during the distribution period is deemed to have relied on the misrepresentation and has a right of action for rescission against
(a) the issuer or a selling security holder on whose behalf the distribution is made; and
(b) any underwriter of the securities.
No action for damages if recission
141(3) If the purchaser chooses to exercise a right of action for rescission against a person or company, the purchaser has no right of action for damages against that person or company.
Defence when securities purchased with knowledge
141(4) No person or company is liable under subsection (1) or (2) if the person or company proves that the purchaser purchased the securities with knowledge of the misrepresentation.
141(5) No person or company, other than the issuer or selling security holder, is liable under subsection (1) or (2) if the person or company proves
(a) that the prospectus was filed without the person's or company's knowledge or consent and that, after becoming aware that it was filed, the person or company promptly gave reasonable general notice that it was filed;
(b) that, between the issuance of a receipt for the prospectus and the purchaser's purchase of the securities, and after becoming aware of any misrepresentation in the prospectus, the person or company
(i) withdrew the person's or company's consent to the prospectus, and
(ii) gave reasonable general notice of the withdrawal and the reason for it;
(c) that, with respect to any part of the prospectus purporting to be made on the authority of an expert or to be a copy of, or an extract from, an expert's report, opinion or statement, the person or company did not have any reasonable grounds to believe and did not believe that
(i) there had been a misrepresentation, or
(ii) the relevant part of the prospectus
(A) did not fairly represent the report, opinion or statement of the expert, or
(B) was not a fair copy of, or an extract from, the expert's report, opinion or statement;
(d) that, with respect to any part of the prospectus purporting to be made on the person's or company's own authority as an expert or purporting to be a copy of, or an extract from, the person's or company's own report, opinion or statement as an expert, but that contains a misrepresentation attributable to a failure to represent fairly the person's or company's report, opinion or statement as an expert,
(i) the person or company had, after reasonable investigation, reasonable grounds to believe and did believe that the part of the prospectus fairly represented the person's or company's report, opinion or statement, or
(ii) after becoming aware that the part of the prospectus did not fairly represent the person's or company's report, opinion or statement as an expert, the person or company promptly advised the Director and gave reasonable general notice that misuse had been made of it and that the person or company would not be responsible for that part of the prospectus; or
(e) that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or an extract from, a public official document,
(i) it was a correct and fair representation of the statement or copy of, or extract from, the document, and
(ii) the person or company had reasonable grounds to believe and did believe that the statement was true.
When expert not liable for own report
141(6) No person or company, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus purporting to be made on the person's or company's own authority as an expert or purporting to be a copy of, or an extract from, the person's or company's own report, opinion or statement as an expert unless the person or company
(a) did not conduct an investigation sufficient to provide reasonable grounds for a belief that there had been no misrepresentation; or
(b) believed there had been a misrepresentation.
When others not liable for expert's report
141(7) No person or company, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, an expert's report, opinion or statement, unless the person or company
(a) did not conduct an investigation sufficient to provide reasonable grounds for a belief that there had been no misrepresentation; or
(b) believed there had been a misrepresentation.
141(8) The amount recoverable under this section shall not exceed the price at which the securities were offered to the public.
Limit on amount recoverable from underwriter
141(9) An underwriter is not liable for more than the total public offering price represented by the portion of the distribution underwritten by the underwriter.
Limit on particular defendant's liability
141(10) 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 security as a result of the misrepresentation.
141(11) All or any one or more of the persons or companies specified in subsection (1) that are found to be liable or accept liability under this section are jointly and severally liable.
Rights when no receipt issued for prospectus
141(12) If in a distribution of securities
(a) no receipt for a prospectus was issued;
(b) no exemption exists or was given exempting the filing of a prospectus; and
(c) a misrepresentation existed in respect of the distribution;
each purchaser of the securities has a right of rescission and a right of action for damages as if a prospectus containing the misrepresentation had been filed in respect of the distribution.
Defendant may recover contribution
141(13) A defendant who is found liable to pay a sum in damages may recover a contribution, in whole or in part, from a person or company that is jointly and severally liable under this section to make the same payment in the same cause of action unless, in all circumstances of the case, the court is satisfied that it would not be just and equitable.
Rights are in addition to other rights
141(14) The right of action for rescission or damages conferred by this section is in addition to and does not derogate from any other right that the purchaser may have at law.
141(15) If a misrepresentation is contained in a record that is incorporated by reference in, or that is deemed to be incorporated by reference into, a prospectus, the misrepresentation is deemed to be contained in the prospectus.
Statutory rights — offering memorandum
141.1(1) When an offering memorandum contains a misrepresentation, a purchaser who purchases a security offered by the offering memorandum is deemed to have relied on the representation if it was a misrepresentation at the time of purchase and has
(a) a right of action for damages against
(i) the issuer,
(ii) every director of the issuer at the date of the offering memorandum, and
(iii) every person or company who signed the offering memorandum; and
(b) a right of rescission against the issuer.
No action for damages if recission
141.1(2) If the purchaser chooses to exercise a right of rescission against the issuer, the purchaser has no right of action for damages against a person or company referred to in clause (1)(a).
141.1(3) Subject to subsection (4), when a misrepresentation is contained in an offering memorandum, no person or company is liable under subsection (1)
(a) if the person or company proves that the purchaser had knowledge of the misrepresentation;
(b) if the person or company proves
(i) that the offering memorandum was sent to the purchaser without the person's or company's knowledge or consent, and
(ii) that, after becoming aware that it was sent, the person or company promptly gave reasonable notice to the issuer that it was sent without the person's or company's knowledge and consent;
(c) if the person or company proves that, after becoming aware of the misrepresentation, the person or company withdrew the person's or company's consent to the offering memorandum and gave reasonable notice to the issuer of the withdrawal and the reason for it;
(d) if, with respect to any part of the offering memorandum purporting to be made on the authority of an expert or to be a copy of, or an extract from, an expert's report, opinion or statement, the person or company proves that the person or company did not have any reasonable grounds to believe and did not believe that
(i) there had been a misrepresentation, or
(ii) the relevant part of the offering memorandum
(A) did not fairly represent the expert's report, opinion or statement, or
(B) was not a fair copy of, or an extract from, the expert's report, opinion or statement; or
(e) with respect to any part of the offering memorandum not purporting to be made on an expert's authority and not purporting to be a copy of, or an extract from, an expert's report, opinion or statement, unless the person or company
(i) did not conduct an investigation sufficient to provide reasonable grounds for a belief that there had been no misrepresentation, or
(ii) believed there had been a misrepresentation.
141.1(4) Clauses (3)(b) to (e) do not apply to the issuer.
141.1(5) The amount recoverable under this section shall not exceed the price at which the securities were offered under the offering memorandum.
141.1(6) In an action for damages pursuant to subsection (1), the defendant is not liable for all or any part of the damages that the defendant proves do not represent the depreciation in value of the security as a result of the misrepresentation.
141.1(7) All or any one or more of the persons or companies specified in subsection (1) that are found to be liable or accept liability under this section are jointly and severally liable.
Defendant may recover contribution
141.1(8) A defendant who is found liable to pay a sum in damages may recover a contribution, in whole or in part, from a person who is jointly and severally liable under this section to make the same payment in the same cause of action unless, in all circumstances of the case, the court is satisfied that it would not be just and equitable.
Rights are in addition to other rights
141.1(9) The rights of action for rescission or damages conferred by this section are in addition to and do not derogate from any other right that the purchaser may have at law.
141.1(10) If a misrepresentation is contained in a record that is incorporated by reference in, or that is deemed to be incorporated into, an offering memorandum, the misrepresentation is deemed to be contained in the offering memorandum.
S.M. 2006, c. 11, s. 29; S.M. 2007, c. 12, s. 40.
Statutory rights — misrepresentation in take-over bid circular or notice of change or variation
141.1.1(1) If a take-over bid circular or a notice of change to or variation in a circular is sent to the holders of securities of an offeree issuer or to the holders of securities convertible into securities of an offeree issuer as required under the regulations and that document contains a misrepresentation, each of those holders
(a) is deemed to have relied on the misrepresentation; and
(b) may choose to exercise a right of action
(i) for rescission or damages against the offeror, or
(ii) for damages against
(A) every person who, at the time the circular or notice was signed, was a director of the offeror,
(B) every person or company whose consent has been filed pursuant to a requirement of the regulations, but only with respect to reports, opinions or statements that have been made by them, and
(C) each person, other than the ones referred to in paragraph (A), who signed a certificate in the circular or notice.
Statutory rights — misrepresentation in directors' circular
141.1.1(2) If a directors' circular, an individual director's or officer's circular or a notice of change to or variation in one of those circulars is sent to security holders of an offeree issuer as required under the regulations and that document contains a misrepresentation, each of the persons or companies to whom the circular or notice was sent is deemed to have relied on the misrepresentation and,
(a) in respect of a misrepresentation in a directors' circular or a notice of change to or variation in such a circular, has a right of action for damages against
(i) every director or officer who signed the circular or notice of change or variation, and
(ii) every person or company whose consent has been filed pursuant to a requirement of the regulations, but only with respect to reports, opinions or statements that have been made by them; and
(b) in respect of a misrepresentation in an individual director's or officer's circular, or a notice of change to or variation in such a circular, has a right of action for damages against
(i) every director or officer who signed the circular or notice of change or variation, and
(ii) every person or company whose consent has been filed pursuant to the regulations, but only with respect to reports, opinions or statements that have been made by them.
Application to issuer bid circulars
141.1.1(3) The provisions of subsection (1) apply, with necessary changes, to
(a) an issuer bid circular that contains a misrepresentation; or
(b) a notice of change to or variation in an issuer bid circular that contains a misrepresentation.
Defence when security holder has knowledge
141.1.1(4) No person or company is liable under subsection (1), (2) or (3) if the person or company proves that the security holder had knowledge of the misrepresentation.
141.1.1(5) No person or company, other than the offeror, is liable under subsection (1), (2) or (3) if the person or company proves that
(a) the circular or the notice of change or variation was sent without the person's or company's knowledge or consent and that, after becoming aware of it, the person or company promptly gave reasonable general notice that it was sent without knowledge or consent;
(b) after the circular or the notice of change or variation was sent and the person or company became aware of a misrepresentation in it, the person or company promptly
(i) withdrew the person's or company's consent to it, and
(ii) gave reasonable general notice of the withdrawal and the reason for it;
(c) with respect to any part of the circular or notice of change or variation purporting to be made on the authority of an expert or to be a copy of, or an extract from, an expert's report, opinion or statement, the person or company had no reasonable grounds to believe and did not believe
(i) that there had been a misrepresentation, or
(ii) that the relevant part of the circular or notice of change or variation
(A) did not fairly represent the expert's report, opinion or statement, or
(B) was not a fair copy of, or extract from, the expert's report, opinion or statement;
(d) with respect to any part of the circular or notice of change or variation purporting to be made on the person's or company's own authority as an expert or purporting to be a copy of, or an extract from, the person's or company's own report, opinion or statement as an expert, but that contains a misrepresentation attributable to a failure to represent fairly the person's or company's report, opinion or statement as an expert,
(i) the person or company had, after conducting an investigation, reasonable grounds to believe and did believe that the part of the circular fairly represented the person's or company's report, opinion or statement as an expert, or
(ii) after becoming aware that the part of the circular did not fairly represent the person's or company's report, opinion or statement as an expert, the person or company promptly advised the Director and gave reasonable general notice that misuse had been made of it and that the person or company would not be responsible for that part of the circular; or
(e) with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or extract from, a public official document,
(i) it was a correct and fair representation of the statement or copy of, or extract from, the document, and
(ii) the person or company had reasonable grounds to believe and did believe that the statement was true.
When expert not liable for own report
141.1.1(6) No person or company, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular or notice of change or variation purporting to be made on the person's or company's own authority as an expert or purporting to be a copy of, or an extract from, the person's or company's own report, opinion or statement as an expert unless the person or company
(a) did not conduct an investigation sufficient to provide reasonable grounds for a belief that there had been no misrepresentation; or
(b) believed there had been a misrepresentation.
When others not liable for expert's report
141.1.1(7) No person or company, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular or notice of change or variation not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, an expert's report, opinion or statement unless the person or company
(a) did not conduct an investigation sufficient to provide reasonable grounds for a belief that there had been no misrepresentation; or
(b) believed there had been a misrepresentation.
Limit on particular defendant's liability
141.1.1(8) In an action for damages under subsection (1), (2) or (3) based on a misrepresentation affecting a security offered by the offeror in exchange for securities of the offeree issuer, 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 security as a result of the misrepresentation.
141.1.1(9) All or any one or more of the persons or companies specified in subsection (1), (2) or (3) that are found to be liable or accept liability under this section are jointly and severally liable.
Defendant may recover contribution
141.1.1(10) A defendant who is found liable to pay a sum in damages may recover a contribution, in whole or in part, from a person or company that is jointly and severally liable under this section to make the same payment in the same cause of action unless, in all circumstances of the case, the court is satisfied that it would not be just and equitable.
Rights are in addition to other rights
141.1.1(11) The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right that the security holders may have at law.
141.1.1(12) If a misrepresentation is contained in a record that is incorporated by reference in, or that is deemed to be incorporated by reference into, a take-over or issuer bid circular or a notice of change to or variation in such a circular, the misrepresentation is deemed to be contained in the circular or the notice of change or variation.
Defence to liability for misrepresentation
141.1.2 A person or company is not liable in an action under section 141, 141.1 or 141.1.1 for a misrepresentation in forward-looking information if the person or company proves that
(a) 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 the conclusion or making the forecast or projection; and
(b) the person or company had a reasonable basis for drawing the conclusions or making the forecasts or projections set out in the forward-looking information.
Statutory rights — failing to send required document
141.2 A person or company that is
(a) a purchaser of a security to whom a prospectus was required to be sent in compliance with the regulations respecting prospectuses, but was not so sent;
(b) a security holder of an offeree issuer or another person or company that is not a security holder of an offeree issuer to which
(i) a take-over bid and take-over bid circular,
(ii) an issuer bid and issuer bid circular, or
(iii) a notice of change to or variation in a bid or circular referred to in subclause (i) or (ii),
was required to be sent in compliance with Part IX and the regulations made for the purposes of that Part, but was not so sent; or
(c) a purchaser of a security to whom an offering memorandum was required to be sent in compliance with the regulations respecting offering memorandums, but was not sent within the time prescribed for sending the offering memorandum by those regulations;
has a right of action for rescission or damages against the dealer, offeror or issuer who did not comply with the requirement.
S.M. 2006, c. 11, s. 29; S.M. 2007, c. 12, s. 42.
Rescission re offering memorandum
141.3(1) A purchaser of a security to whom an offering memorandum is required to be sent may rescind the contract to purchase the security by sending a written notice of recission to the issuer not later than midnight on the second day, excluding Saturdays and holidays, after the purchaser signs the agreement to purchase the securities.
Additional ways of rescinding mutual fund purchase
141.3(2) If the security purchased is a mutual fund security, the purchaser may also rescind the contract to purchase it by sending a written notice of rescission to the registered dealer from whom the purchase was made
(a) not later than midnight on the second day, excluding Saturdays and holidays, after the purchaser receives the confirmation of purchase, in the case of a lump sum purchase; or
(b) within 60 days after the purchaser receives the confirmation of purchase, in the case of the initial payment under a contractual plan.
141.3(3) Subject to subsection (5), the amount the purchaser is entitled to recover when exercising the right to rescind under this section shall not exceed the net asset value of the securities purchased, at the time the right to rescind is exercised.
Recission re payments to be made
141.3(4) The right to rescind a purchase made under a contractual plan may be exercised only with respect to payments scheduled to be made within the time specified in subsection (2) for rescinding a purchase made under a contractual plan.
Dealer to reimburse purchaser for sales charges and fees
141.3(5) If the security purchased is a mutual fund security, the dealer from whom the purchase was made must reimburse the purchaser who has exercised the purchaser's right of rescission in accordance with this section for the amount of sales charges and fees relevant to the purchaser's investment in the mutual fund in respect of the shares or units of which the notice of rescission was given.
Limitation period re prospectus misrepresentation
141.4(1) Unless otherwise provided in this Act, no action may be commenced to enforce a right created by section 141,
(a) in the case of an action for rescission, more than 180 days after
(i) the day that the plaintiff received the prospectus containing the misrepresentation, or
(ii) the day that the plaintiff acquired the security that the prospectus relates to,
whichever occurs later; or
(b) in any other case, more than
(i) 180 days after the day that the plaintiff first had knowledge of the facts giving rise to the cause of action, or
(ii) two years after the day of the transaction that gave rise to the cause of action,
whichever occurs earlier.
Limitation period re other rights of action
141.4(2) Unless otherwise provided in this Act, no action may be commenced to enforce a right created by section 141.1, 141.1.1 or 141.2,
(a) in the case of an action for rescission, more than 180 days after the day of the transaction that gave rise to the cause of action; or
(b) in any other case, more than
(i) 180 days after the day that the plaintiff first had knowledge of the facts giving rise to the cause of action, or
(ii) two years after the day of the transaction that gave rise to the cause of action,
whichever occurs earlier.
S.M. 2006, c. 11, s. 29; S.M. 2007, c. 12, s. 43.
141.4 Unless otherwise provided in this Act, no action may be commenced to enforce a right created by this Part more than
(a) 180 days after the day of the transaction that gave rise to the cause of action, in the case of an action for rescission; or
(b) the earlier of
(i) 180 days after the day that the plaintiff first had knowledge of the facts giving rise to the cause of action, or
(ii) two years after the day of the transaction that gave rise to the cause of action,
in any other case.
142(1) No person may commence or maintain an action or other proceeding against the Crown, the commission, the Director or another person mentioned in subsection (1.1), for any act done in good faith, or any neglect or default, in the performance or intended performance in good faith of a responsibility or in the exercise or intended exercise in good faith of a power or discretion
(a) under this Act or the regulations; or
(b) under any other Act of the Legislature or other regulations under which the commission or the Director has responsibilities, powers or discretion.
142(1.1) The other persons protected from liability are
(a) employees employed under the commission;
(b) persons appointed under this Act or engaged in its administration;
(c) persons appointed by the commission under any other Act of the Legislature; and
(d) other persons acting for or under the direction of the commission or Director.
Liability if complying with Act
142(2) No person or company has any rights or remedies, and no proceedings lie or shall be brought, against any other person or company in respect of any act or omission of that other person or company done or omitted in compliance or intended compliance with
(a) any requirement, order or direction under this Act of
(i) the commission or any member thereof;
(ii) the Director;
(iii) any person appointed by order of the minister under this Act;
(iv) the minister; or
(v) the representative of the minister, the commission, the Director or any person appointed by the minister under this Act; or
(b) this Act and the regulations.
142(3) Members of the commission, the Director and other persons employed under the commission are not required to give testimony in any civil suit to which the commission is not a party with regard to information obtained by them in the discharge of their official duties under this or any other Act of the Legislature.
S.M. 2002, c. 32, s. 5; S.M. 2007, c. 12, s. 3.
143(1) The Director shall have charge of the records of the commission.
143(2) Any person or company may obtain from the Director, on payment of the prescribed fee, a plain or certified copy of any order of the commission or of any other document in his custody which is open to public inspection.
Publishing list of defaulting reporting issuers
143.1 The commission may publish a list of reporting issuers who are in default of any requirement of this Act or the regulations.
144(1) Any notice or other document that is required to be served under this Act or in any proceeding or matter under the jurisdiction or control of the commission may, unless some other method of serving it is specifically provided in this or some other Act of the Legislature, be served
(a) by personal service made
(i) in the case of an individual, on that individual, or
(ii) in the case of a partnership, on any partner, or
(iii) in the case of a company or any unincorporated organization other than a partnership, on any officer or director of the company or organization; or
(b) by registered or certified mail addressed to the last business or residential address of the person or company to be served known to the commission; or
(c) in any case where the commission is satisfied that it is not practicable to effect service by either of the means mentioned in clauses (a) and (b), by such method as the commission may direct; or
(d) in the case of a notice to the public, or to persons or companies who are too numerous to be served individually, by publishing the notice in such manner as the commission may direct.
Time of service by registered mail
144(2) A notice sent by registered mail shall be deemed to have been served on the date on which it would be delivered in the ordinary course of the post.
Time of service by certified mail
144(3) A notice sent by certified mail shall be deemed to have been served on the date on which it reached the premises to which it is addressed.
145(1) For the purposes of any inquiry, investigation or examination conducted, ordered or authorized by it, or in the performance of any other duties assigned to it under this or any other Act of the Legislature, the commission may, with the consent of the minister in charge of a department of the government, avail itself of the services of any officer or other employee of the department.
Commission exempt from certain fees
145(2) The district registrars of land titles districts throughout the province, and the several departments of the Government of Manitoba, shall furnish the commission with such certificates and certified copies of documents as the commission may in writing require without charge, and any member of the commission or person employed under the commission may at any time search in the public records of the Land Titles Office or of any other department without charge.
Orders coming into force in future
146(1) The commission may direct, in any order, that the order or any portion or provision thereof comes into force
(a) at a future fixed time; or
(b) upon the happening of any contingency, event or condition specified in the order; or
(c) upon the performance to the satisfaction of the commission, or a person named in the order for the purpose, of any terms that the commission may impose upon any party interested;
and may direct that the whole or any portion of the order shall have force for a limited time only, or until the happening of a specified event.
146(2) The commission may, instead of making an order final in the first instance, make an interim order and reserve further directions, either for an adjourned hearing of the matter, or for further application.
Only substantial compliance required
147 A substantial compliance with the requirements of this Act is sufficient to give effect to all orders, rules, acts, regulations or decisions of the commission or the Director; and an order, rule, act, regulation or decision is not inoperative, illegal or void for any omission of a technical nature with respect thereto.
Late filing of periodic disclosure
147.1(1) Despite subsection 148(1), if a person or company fails to file periodic disclosure as required by the regulations, the commission or the Director may, without providing an opportunity to be heard, make one or more of the following orders:
(a) an order that trading in or purchasing cease in respect of any security specified in the order;
(b) an order that a person or company cease trading in or purchasing securities, specified securities or a class of securities specified in the order.
147.1(2) After making the order, the commission or the Director shall send written notice of the order to any person or company directly affected by it.
148(1) If the commission considers that it is in the public interest, it may, with or without conditions, order that trading in securities by or of a person or company cease permanently or for a specified period. Except as allowed by subsection (2) or (3), the commission shall not make an order without a hearing.
148(2) If the commission considers that the delay required for a hearing would be prejudicial to the public interest, it may make the order without notice to the person or company. An order made without notice expires 15 days after it is made.
148(3) A temporary order may be extended for any period that the commission considers necessary, if satisfactory information is not provided to the commission within the 15 day period.
Notice of intention re order or hearing
148(4) The commission may give notice of its intention to make an order or to hold a hearing under this section
(a) by publication in a newspaper of general circulation; or
(b) in such other manner and to such persons as the commission considers appropriate.
148.1(1) The commission may order a person or company to pay an administrative penalty of not more than $100,000. in the case of an individual, or not more than $500,000. in the case of any other person or company, if after a hearing
(a) it determines that the person or company has contravened or failed to comply with
(i) a provision of this Act or the regulations,
(ii) a direction, decision, order or ruling of the commission, or a rule made under subsection 149.1(1),
(iii) a written undertaking made by the person or company to the commission or the Director, or
(iv) a term or condition of the person or company's registration; and
(b) it considers the penalty to be in the public interest.
Administrative penalties against others
148.1(1.1) If after a hearing the commission
(a) determines that
(i) a company or a person other than an individual has committed a contravention or failure referred to in clause (1)(a), and
(ii) a director or officer of the person or company, or another person other than an individual, authorized, permitted or acquiesced in the contravention or failure; and
(b) considers that the order is in the public interest;
the commission may order the director or officer or the other person to pay an administrative penalty of not more than $100,000. in the case of an individual, or not more than $500,000. in any other case.
Administrative penalties are in addition to other sanctions
148.1(2) The commission may make an order under subsection (1) despite the imposition of any other penalty or sanction on the person or company, or the making of any other order by the commission, related to the same matter.
S.M. 2001, c. 26, s. 64; S.M. 2007, c. 12, s. 3 and 46.
Compensation for financial losses
148.2(1) On the application of a claimant, the Director may, when the commission holds a hearing about a person or company, request it to make an order that the person or company pay the claimant compensation for financial loss.
Director's decision not reviewable
148.2(2) Despite subsection 29(1), the Director's decision whether to make a request is not reviewable.
148.2(3) When so requested by the director, the commission may order the person or company 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 or company has contravened or failed to comply with
(i) a provision of this Act or the regulations,
(ii) a direction, decision, order or ruling of the commission, or a rule made under subsection 149.1(1),
(iii) a written undertaking made by the person or company to the commission or the Director, or
(iv) a term or condition of the person or company's registration;
(b) is able to determine the amount of the financial loss on the evidence; and
(c) finds that the person or company's contravention or failure caused the financial loss in whole or in part.
Compensation orders against employers and others
148.2(4) If the contravention or failure occurs in the course of the person or company's employment by another person or company, or while the person or company is acting on behalf of the other in any other capacity, the commission may order the other person or company to jointly and severally pay the claimant the financial compensation ordered under subsection (3).
148.2(5) For the purposes of subsection (4), a person or company is employed by another person or company when
(a) an employer–employee relationship exists; or
(b) the first person or company is registered under this Act through the second person or company.
Compensation order is in addition to other sanctions
148.2(6) The commission may make an order despite the imposition of any other penalty or sanction on the person or company, or the making of any other order by the commission, related to the same matter.
Court proceedings take precedence
148.2(7) The commission shall not make an order if the claimant has commenced a civil court proceeding for compensation for the same loss.
Claimant to inform commission about action
148.2(8) A claimant shall inform the commission without delay after commencing a civil court proceeding for the same loss.
No right of action after hearing begins
148.2(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.
148.2(10) Despite subsection (9), a claimant in whose favour the commission makes an order may file a certified copy in the Court of Queen's Bench. The filed order is enforceable as a judgment of the court in favour of the claimant and against the person or company the commission ordered to pay the compensation.
S.M. 2002, c. 32, s. 6; S.M. 2007, c. 12, s. 47.
Orders respecting directors and officers
148.3(1) If the commission considers it to be in the public interest, the commission may, after a hearing, make one or more of the following orders:
(a) an order that a person must resign as a director or officer of an issuer;
(b) an order that a person is prohibited from being a director or officer of an issuer;
(c) an order that a person be appointed as a director or officer of an issuer.
Order may be subject to conditions
148.3(2) In making an order, the commission may impose any conditions that it considers appropriate.
Orders based on orders from other tribunals
148.4(1) After providing an opportunity to be heard, the commission may make one or more orders under subsections 8(1), 19(5), 31.3(1), 139(2), 148(1) and 148.3(1) against a person or company that has
(a) been convicted of a criminal offence arising from a transaction, business or course of action related to securities;
(b) been found by a court inside or outside Manitoba to have contravened this Act, the regulations or a decision of the commission or the Director, or the securities laws of another jurisdiction; or
(c) been found to have contravened the securities laws of another province or territory of Canada, by a securities commission or other person or body empowered by statute to regulate trading in securities in, or to administer, regulate or enforce the securities laws of, that other province or territory.
Order may be subject to conditions
148.4(2) In making an order, the commission may impose any conditions that it considers appropriate.
149 The Lieutenant Governor in Council may make regulations,
(a) governing trading and, without limiting the generality of the foregoing,
(i) respecting the listing and trading of securities,
(ii) respecting advertising relating to trading in securities,
(iii) establishing the principles for determining the market value, market price or closing price of a security and authorizing the commission to make that determination,
(iv) prescribing which primary distributions to the public, and trading in relation to the distributions, are primary distributions to the public and trading outside of Manitoba,
(v) prescribing circumstances in which a person or company that purchases a security under a distribution may cancel the purchase, including
(A) prescribing the period in which the purchaser may cancel the purchase,
(B) prescribing the principles for determining the amount of the refund if the purchaser cancels the purchase,
(C) specifying the person or company responsible for making and administering the payment of the refund and prescribing the period in which the refund must be paid, and
(D) prescribing different circumstances, periods, principles or persons or companies for different classes of securities, issuers or purchasers,
(vi) prescribing circumstances in which a person or company or a class of persons or companies is prohibited from trading or purchasing securities or a particular security, including, but not limited to, the circumstances that a body empowered by the laws of another jurisdiction to regulate trading in securities or to administer or enforce securities laws in that jurisdiction has ordered that
(A) the person or company is prohibited from trading or purchasing securities or a particular security, or
(B) trades or purchases of a particular security are prohibited;
(b) requiring any information, documents, records or other materials to be filed, furnished or delivered;
(c) requiring the inclusion or permitting the exclusion of any information, documents, records or other materials that may be required to be filed, furnished or delivered;
(d) prescribing terms and conditions of an escrow or pooling agreement;
(e) prescribing categories of issuers for the purposes of the prospectus requirements and classifying issuers into categories;
(f) governing commodity pools and, without limiting the generality of the foregoing, prescribing requirements respecting commodity pools and prohibiting or restricting the payment of commissions or compensation;
(g) governing derivatives and, without limiting the generality of the foregoing, providing exemptions and prescribing requirements in respect of derivatives;
(h) respecting any matter necessary or advisable to facilitate primary distributions to the public and compliance with this Act and the regulations by foreign issuers;
(i) prescribing requirements in respect of reverse take-overs and investment contracts;
(j) governing registration and, without limiting the generality of the foregoing,
(i) prescribing requirements in respect of applications for registration and the renewal, amendment, expiration or surrender of registration,
(ii) respecting the suspension, cancellation and reinstatement of registration,
(iii) prescribing categories or sub-categories of registrants,
(iv) classifying registrants into categories or sub-categories,
(v) prescribing the conditions of registration or other requirements for registrants or any category or sub-category of registrants, including
(A) standards of practice and business conduct of registrants in dealing with their customers and clients and prospective customers and clients,
(B) requirements governing ownership or control of the registrants,
(C) requirements in respect of membership in a self-regulatory organization,
(vi) prescribing requirements in respect of the disclosure or furnishing of information to the public or the commission by registrants,
(vii) prescribing requirements in respect of the books, records and other documents required to be kept by registrants,
(viii) respecting conflicts of interest,
(ix) respecting bonds and bonding,
(x) respecting compensation funds or contingency trust funds,
(xi) prescribing circumstances in which
(A) a person or company or a class of persons or companies is not required to be registered under Part II, or
(B) a person or company or a class of persons or companies is deemed to be registered for the purposes of this Act or the regulations;
(k) governing annual information forms, annual reports, preliminary prospectuses, prospectuses, pro forma prospectuses, short form prospectuses, pro forma short form prospectuses, exchange offering prospectuses, simplified prospectuses, risk disclosure statements, offering memorandums or any other disclosure documents and, without limiting the generality of the foregoing, prescribing procedures and requirements with respect to
(i) the use, form and contents of those documents,
(ii) the preparation, filing, delivery or dissemination of those documents,
(iii) the issuance of receipts,
(iv) the incorporation of other documents by reference;
(l) providing for and governing exemptions from the registration or prospectus requirements and, without limiting the generality of the foregoing,
(i) prescribing trades, primary distributions to the public and securities in respect of which registration is not required,
(ii) prescribing trades, primary distributions to the public and securities in respect of which the filing of a prospectus is not required,
(iii) respecting the modification or variation of those exemptions,
(iv) respecting the restriction or removal of those exemptions,
(v) designating a person or company as an accredited investor, or a class or classes of persons or companies as accredited investors;
(m) governing mutual funds and non-redeemable investment funds and the advertising, distribution and trading of the securities of the funds and, without limiting the generality of the foregoing,
(i) designating funds or one or more classes of them as private funds,
(ii) 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 fund,
(iii) prescribing a penalty for the early redemption of shares or units of a fund,
(iv) prescribing the form and contents of reports to be filed by the management company or distributors of a fund,
(v) respecting
(A) the custodianship of assets of a fund,
(B) the minimum initial capital requirements for a fund making a distribution and prohibiting or restricting the reimbursement of costs associated with the organization of a fund,
(C) any matters affecting a fund that require the approval of security holders of the fund, the commission or the Director,
(D) the contents and use of sales literature, sales communications and advertising relating to a fund or securities of a fund,
(vi) permitting or restricting investment policy and practices in connection with a fund;
(n) governing documents filed under Parts X and XII and, without limiting the generality of the foregoing, providing for
(i) the use, form and contents of those documents,
(ii) the preparation, audit, review, approval, certification, filing, delivery and dissemination of those documents,
(iii) exemptions from the requirements of Parts X and XII;
(n.1) governing the solicitation of proxies, including, but not limited to, prescribing requirements
(i) for the solicitation and voting of proxies,
(ii) relating to communication with registered and beneficial owners of securities, and
(iii) relating to other persons or companies, including depositories and registrants, that hold securities on behalf of beneficial owners;
(o) governing insider trading, early warning and self-dealing, including, but not limited to,
(i) requiring any issuer, class of issuer or other person or company to comply with any of the requirements of Part XI or the regulations,
(ii) prescribing how a security or class of securities must be reported in an insider report filed under Part IX or the regulations,
(iii) prescribing disclosure, delivery, dissemination and filing requirements, including the use of particular forms or particular types of documents,
(iv) governing self-dealing and conflicts of interest,
(v) prescribing exemptions from the requirements of Part XI or the regulations, and
(vi) designating a person or company to be an insider;
(o.1) governing persons who act as auditors of reporting issuers, including
(i) prescribing the qualifications and affiliations that a reporting issuer's auditor must have,
(ii) prohibiting certain persons or classes of persons from acting as the auditor of a reporting issuer, and
(iii) prescribing reports, notices and other information that a reporting issuer's auditor must provide to the commission in specified circumstances;
(p) governing take-over bids, take-overs and issuer bids, including, but not limited to,
(i) prescribing requirements for different classes of bids or take-overs,
(ii) prescribing requirements relating to the conduct or management of the affairs of the issuer that is the subject of a take-over bid, and its directors and officers, during or in anticipation of the take-over bid,
(iii) prohibiting a person or company from purchasing or selling a security before, during or after the effective period of a take-over bid,
(iv) prescribing the disclosure, certification, delivery or dissemination of any circular, notice, report or other document required to be filed or delivered to a person or company,
(v) prescribing percentages and requirements respecting early warning, and
(vi) prescribing exemptions from the requirements of Part IX or the regulations;
(q) governing the format, preparation, form, contents, execution, certification, filing, review, public inspection and the dissemination and other use of all information, documents, records or other materials required under or governed by this Act and the regulations and, without limiting the generality of the foregoing,
(i) respecting applications for registration and other purposes,
(ii) respecting preliminary prospectuses and prospectuses,
(iii) respecting interim financial statements and financial statements,
(iv) respecting proxies and information circulars,
(v) respecting take-over bid circulars, issuer bid circulars, directors' circulars and offering memorandums,
(vi) establishing procedures and requirements in respect of the use of any electronic or computer-based system for the filing, delivery or deposit of information, documents, records or materials,
(vii) varying or modifying the application of this Act to facilitate the use of an electronic or computer-based system for the filing, delivery or deposit of information, documents, records or materials,
(viii) prescribing the circumstances in which persons or companies will be deemed to have signed or certified information, documents, records or materials on an electronic or computer-based system for any purposes of this Act;
(r) governing stock exchanges and, without limiting the generality of the foregoing,
(i) respecting the recognition of stock exchanges,
(ii) prescribing requirements in respect of the review or approval by the commission of any by-law, rule, regulation, policy, procedure, interpretation or practice of recognized stock exchanges,
(iii) providing for the collection and remission by recognized stock exchanges of fees payable to the commission,
(iv) prescribing requirements in respect of the books and records to be maintained by recognized stock exchanges;
(s) governing the requirements, practice and procedure for investigations, hearings, reviews and appeals and, without limiting the generality of the foregoing, providing for
(i) costs in respect of matters heard before the commission or the Director,
(ii) costs in respect of investigations,
(iii) costs in respect of services provided by persons appointed or engaged and the appearance of witnesses;
(t) governing undertakings and agreements between the commission or Director and a person or company;
(u) providing for and governing the payment of money by a person or company pursuant to an undertaking or agreement with the commission or Director;
(v) governing the administration and disposition of money received pursuant to an undertaking or agreement;
(w) determining what constitutes a false or misleading appearance of trading activity in a security or an artificial price for a security;
(x) respecting any matter necessary or advisable to carry out effectively the intent and purpose of section 113 and, without limiting the generality of the foregoing,
(i) providing for exemptions from any requirements of that section,
(ii) prescribing standards or criteria for determining when a material fact or material change has been generally disclosed;
(y) prescribing the form of endorsement for the purposes of extra-provincial warrants;
(z) providing for and governing fees payable to the commission and the provision of any service or function performed in respect of those fees;
(aa) defining for the purposes of this Act terms used in this Act that are not defined in this Act;
(bb) governing the procedure to be followed by the commission with respect to making or repealing rules under section 149.1;
(cc) specifying rules of the commission under section 149.1 a contravention of which constitutes an offence;
(dd) governing any other matter related to the carrying out of this Act or the conduct of the business and affairs of the commission;
(ee) requiring investment funds to establish and maintain a body for the purposes described in section 154.3, prescribing its powers and duties and prescribing requirements relating to
(i) the body's mandate and functions,
(ii) the body's composition and qualifications for membership on the body, including matters respecting the independence of members and the process for selecting them,
(iii) the standard of care that applies to the body's members when they exercise their powers, perform their duties and carry out their responsibilities,
(iv) the disclosure of information to the investment fund's security holders, to the investment fund manager and to the commission, and
(v) matters affecting the investment fund that require review or approval by the body;
(ff) exempting a class of persons, companies, trades or securities from one or more of the provisions of this Act or the regulations, and prescribing circumstances and conditions for the purposes of an exemption, including, but not limited to, conditions
(i) relating to the laws of another jurisdiction of Canada or to an exemption from those laws granted by a body empowered by the laws of that jurisdiction to regulate trading in securities or to administer or enforce laws respecting trading in securities, or
(ii) that refer to a person or company or to a class of persons or companies designated by the commission;
(gg) providing for the application of Part XVIII to the acquisition of an issuer's security pursuant to a distribution that is exempt from section 37 and to the acquisition of an issuer's security in connection with or under a take-over bid or issuer bid;
(hh) prescribing transactions or classes of transactions for the purposes of clause 175(d);
(ii) respecting the preparation, form and content of statements containing forward-looking information that are publically distributed by reporting issuers.
S.M. 1989-90, c. 54, s. 8; S.M. 1996, c. 50, s. 5; S.M. 2001, c. 26, s. 65; S.M. 2007, c. 12, s. 49.
149.1(1) Subject to this section and the regulations made under clause 149(bb), the commission may make rules respecting any of the matters referred to
(a) in section 149 other than those referred to in clauses 149(z), (bb) and (cc); or
(b) in section 169.
149.1(2) Where the provisions of a regulation made under section 149 and a rule made under this section conflict, the regulation prevails.
L.G. in C. may amend or repeal rule
149.1(3) The Lieutenant Governor in Council may amend or repeal any rule made by the commission under this section.
149.1(4) Subject to subsections (2) and (3) and section 149.2, a rule made by the commission under this section has the same force and effect as a regulation made by the Lieutenant Governor in Council under section 149.
Regulations Act not applicable
149.1(5) The Regulations Act does not apply to a rule made by the commission under subsection (1).
S.M. 1996, c. 50, s. 5; S.M. 2006, c. 11, s. 32.
149.2(1) Every rule made under section 149.1 shall be published in The Manitoba Gazette.
149.2(2) On publication of a rule in The Manitoba Gazette,
(a) every person or company is deemed to have notice of the rule; and
(b) the rule is deemed to be valid despite any irregularity or any defect in the rule-making process.
149.2(3) Until a rule is published in The Manitoba Gazette, it is not enforceable against a person or company who has not had actual notice of the rule.
149.3(1) For the purposes of The Evidence Act, a rule made under section 149.1 shall be treated in the same manner as if it were a regulation.
Application of regulations and rules
149.3(2) A regulation or rule may be of general or specific application.
149.3(3) A regulation or rule may incorporate by reference, in whole or in part, any standard, procedure or guideline and may require compliance with any standard, procedure or guideline adopted.
Exemption from a regulation or rule
149.4 A regulation or rule may authorize the commission or the Director to grant an exemption to the regulation or rule
(a) in whole or in part; and
(b) subject to conditions or restrictions.
S.M. 1996, c. 50, s. 5; S.M. 2007, c. 12, s. 3.
149.5(1) The commission may issue policy statements, and other instruments the commission considers advisable, to facilitate the exercise of its powers and the performance of its duties under this Act, the regulations and the rules of the commission made under subsection 149.1(1).
Statements not rules or regulations
149.5(2) A policy statement or other instrument referred to in subsection (1) is neither
(a) a rule of the commission for the purposes this Act; nor
(b) a regulation within the meaning of The Regulations Act.
Evidence of certified statements
150 A statement as to
(a) the registration or non-registration of a person or company; or
(b) the filing or non-filing of any document or material required or permitted to be filed with the commission; or
(c) any other matter pertaining to the registration, non-registration, filing or non-filing; or
(d) any person registered or any document or material filed;
purporting to be certified by the commission, or a member thereof, or by the Director, is prima facie proof of the facts stated therein for all purposes in any action, proceeding, or prosecution.
Warrant issued in another province
151(1) Where a justice of another province issues a warrant for the arrest of a person on a charge of contravening any provision of a statute of that province similar to this Act, a justice of this province within whose jurisdiction that person is, or is suspected to be, may, upon satisfactory proof of the handwriting of the justice who issued the warrant, endorse the warrant in the following form:
CANADA
Province of Manitoba
Pursuant to application this day made to me, I hereby authorize the execution of this warrant within the Province of Manitoba.
Dated this day of , 20 , at .
a Provincial Court Judge or a Justice of the Peace in and for the Province of Manitoba;
and a warrant so endorsed is sufficient authority to the person bringing the warrant, and to all other persons to whom it was originally directed, and to all constables within the territorial jurisdiction of the justice so endorsing the warrant, to execute it within that jurisdiction and to take the person arrested thereunder either out of or anywhere in the province and to re-arrest the person anywhere in the province.
151(2) Any constable in the province or in any other province of Canada who is passing through this province having in his custody a person arrested in another province under a warrant endorsed as provided in subsection (1) is entitled to hold, take, and re-arrest the accused anywhere in this province under the warrant without proof of the warrant or the endorsement thereof.