CSA Notice of Amendments to National Instrument 45-106 Prospectus Exemptions and National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations and Changes to Companion Policy 45-106CP Prospectus Exemptions and Companion Policy 31-103CP Registration Requirements, Exemptions and Ongoing Registrant Obligations relating to Syndicated Mortgages

septembre 21, 2020

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CSA Notice of Amendments to National Instrument 45-106 Prospectus Exemptions and National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations and Changes to Companion Policy 45-106CP Prospectus Exemptions and Companion Policy 31-103CP Registration Requirements, Exemptions and Ongoing Registrant Obligations relating to Syndicated Mortgages. 

Letter Summary:

The CSA has finalized their proposed amendments relating to the registration and prospectus exemptions involving syndicated mortgages. They have removed the current syndicated mortgage exemptions, introduced new disclosure requirements for use with the offering memorandum prospectus exemption and amended the private issuer exemption so that it is no longer available for trades in syndicated mortgages, all as of March 1, 2021.  However, a number of jurisdictions have each proposed further changes to the registration and prospectus exemptions. Ontario, New Brunswick, Nova Scotia and Newfoundland and Labrador have reintroduced registration and prospectus exemptions for “qualified syndicated mortgages”, the definition of which is substantially harmonized across the jurisdictions. Alberta and Quebec have proposed a prospectus-only exemption for qualified syndicated mortgages. Ontario and New Brunswick have, in addition, proposed registration and prospectus exemptions for trades in non-qualified syndicated mortgages to permitted clients; Alberta has proposed a similar exemption that would be a registration exemption only, and Quebec is not proposing to add this exemption but has asked specific consultation questions with respect to such an exemption. Each of Ontario and New Brunswick have proposed that exempt distribution reports not be required to be filed for syndicated mortgages sold to permitted clients.


Overview of the Council’s Comments:

As noted in our prior comment letters to the CSA, we support the broader changes made to the prospectus and registration exemptions for syndicated mortgages because of the inherent risks associated with the distribution of such products to retail investors. We are also supportive of the harmonization of the removal of these exemptions amongst Canadian provinces because the regulations with respect to syndicated mortgages are not standardized across these jurisdictions. As indicated above in our comment regarding FSRA’s proposal on syndicated mortgages, the maximum LTV % threshold to determine a “qualified syndicated mortgage” should be set at 75% across all jurisdictions. Finally, we also support the proposal to use the definition of “permitted client” currently found in NI 31-103 so that the waiver of suitability requirements be standardized across investment products, including syndicated mortgages.

Our positions indicated above have also been communicated in two other comment letters posted concurrently in response to (1) the proposed New Brunswick amendments to Commission Rule 45-501 Prospectus and Registration Exemptions relating to Syndicated Mortgages; and (2) the proposed Regulation respecting the distribution of qualified syndicated mortgages from the Autorité des marchés financiers (Québec).