The requirement that a registered firm provide its clients with
an independent dispute resolution or mediation service as provided
for in National Instrument 31-103 Registration Requirements,
Exemptions and Ongoing Registrant Obligations (NI 31-103) has been
deferred for an additional two years from September 28, 2012 to
September 28, 2014. In CSA Staff Notice 31-330 Omnibus/Blanket
Orders Extending Certain Transition Provisions Relating to ... the
Obligation to Provide Dispute Resolution Services, published in
early July 2012, the Canadian Securities Administrators explain
that they are continuing to review this requirement and are
considering amendments, which will be published for comment at some
future date.
The CSA have not indicated the timing or specific content of this
publication, but they have signalled that one option they are
considering is requiring that all registrants become members of the
Ombudsman for Banking Services and Investments (OBSI). Members of
the Mutual Fund Dealers Association (MFDA) of Canada and the
Investment Industry Regulatory Organization of Canada (IIROC) are
already participant firms of OBSI, as are most registered
scholarship plan dealers. The Report of the 2011 Independent Review
of OBSI is available on the OBSI website and contains additional
background on OBSI, including various recommendations for
improvements. The authors of this Report conclude by recommending
that mandatory participation in OBSI is necessary in order to
ensure the on-going viability of OBSI.
Transition does not apply to firms registered after September 28, 2009
Firms that were registered for the first time after September
28, 2009 do not enjoy the benefit of the transition and therefor
must comply with the dispute resolution requirements set out in NI
31-103. The drafting of the applicable decisions of the various CSA
members providing for the new transition period make this result
clear by stating that the transition only applies to firms that
were registered on September 28, 2009. We question the
CSA's policy rationale for this position, which puts a higher
burden on new registrants (since 2009) and may be very confusing to
investors.
Reminder concerning Dispute Resolution and Complaint Reporting Requirements in Québec
Registered firms in Québec are deemed to comply with the
requirement in NI 31-103 concerning independent dispute resolution
and complaint handling if they comply with the requirements under
Québec legislation, which requirements are in force.
Québec requires firms to use the Autorité des
marchés financiers' (AMF) dispute resolution service. In
addition, all registered firms in Québec must file a
complaints report twice a year – by July 30 (for the
period from January 1 to June 30) and by January 30 (for the period
from July 1 to December 31). This report is filed via the AMF's
Complaint Reporting System, at www.srp-crs.ca. Even if no
complaints are received, a firm must file a nil report for each
reporting period. Failure to file a report exposes a firm to
administrative penalties imposed by the AMF.
Although no reporting on complaints is required in any of the
other jurisdictions in Canada, other than for members of IIROC, NI
31-103 requires that all registrants set up a system to document
and respond to client complaints made about products or services
offered by the firm or any representative. This requirement has
been in force since September 28, 2009. We note that it does not
apply to registered investment fund managers in respect of the
activities undertaken pursuant to that registration.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
