Applying for discretionary relief

If a company is unable to comply with a requirement in securities legislation, it can apply for discretionary relief. The Ontario Securities Commission (OSC) reviews applications for relief on a case-by-case basis. Companies usually apply for relief from prospectus and registration requirements of Ontario’s Securities Act, or from preparing and filing continuous disclosure documents.

Most exemptive relief applications involve a company seeking identical relief in multiple jurisdictions, though there are instances where a company only applies for relief in Ontario through a local application.

How to file an application

Exemptive relief applications, including pre-filing applications for non-investment fund issuers and investment fund issuers must be filed online via SEDAR+. All other exemptive relief applications and pre-files (for example, applications by registrants or exchanges) must be filed online with the OSC via the OSC electronic portal.

Companies can also pre-file with the OSC before making a formal application for exemptive relief. This process allows companies to consult with OSC staff on a specific issue to understand how securities legislation will be interpreted by the OSC.

Types of exemptive relief

There are several types of relief applications that companies can file with the OSC. All Issuers should consult National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions (NP 11-203) and Appendix D of Multilateral Instrument 11-102 Passport System (MI 11-102) for considerations related to exemptive relief.

Companies can file a “passport” application when seeking relief from a securities law requirement listed in Appendix D of MI 11-102. This type of application is used when the relief is being sought either:

  • in Ontario and at least one other jurisdiction, if the company’s principal regulator is Ontario
  • in at least two jurisdictions other than Ontario, if the company’s principal regulator is a jurisdiction other than Ontario

The company only needs to file a passport application with, and pay fees to, the principal regulator.

For further guidance on filing passport applications, see sections 3.2 and 5.2(1) and Annex A of NP 11-203.

A dual application is one in which a company is seeking relief from a securities law requirement that is covered by Appendix D to MI 11-102 and both of the following apply:

  • relief is required in Ontario and at least one other jurisdiction
  • the principal regulator is a jurisdiction other than Ontario

For a dual application, a company must file the application with, and pay fees to its principal regulator and to the OSC.

For further information, see sections 3.3 and 5.2(2), and Annex B of NP 11-203.

Companies apply for a coordinated review application when seeking relief that falls outside of the scope of MI 11-102, and when relief is required in at least two jurisdictions.

For a coordinated review application, a company must file the application and pay fees to its principal regulator and to each regulator in any other jurisdiction where relief is required.

For further information, see sections 3.4 and 5.2(3), and Annex C of NP 11-203.

A hybrid application is used when a company is seeking relief in at least two jurisdictions from a requirement that is listed in Appendix D of MI 11-102 and a requirement that is outside of the scope of Appendix D.

Companies must follow the process for both a coordinated review application and one of either a passport application or dual application. Section 3.5 and Annex D of NP 11-203 outlines all of the requirements.

A company that requires relief only in Ontario should file a local application. OSC Policy 2.1 Applications to the Ontario Securities Commission provides guidance on how to file a local application.

The OSC receives applications from companies wishing to change their reporting issuer status in Ontario.

OSC Policy 12-602 Designating an Issuer in Certain Other Canadian Jurisdictions as a Reporting Issuer in Ontario explains how to become a recognized reporting issuer in Ontario.

To apply for a decision that a company is not a reporting issuer, refer to:

Fees

Companies must calculate their fees for filing. Information on how to calculate fees for exemptive relief applications can be found in OSC Rule 13-502 Fees and in Companion Policy 13-502CP Fees.

Fees related to applications for relief, approval, or recognition are set out in Appendix C of OSC Rule 13-502.

Fees are due at the time of filing the application for exemptive relief.

Related legislation and notices

For further information related to exemptive relief, refer to:

Timing

For more information on the OSC’s service standard timing to review exemptive relief applications, see the OSC Service Commitment.