Securities Commissions actions in breach of trust?

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Re: Securities Commissions actions in breach of trust?

Postby admin » Thu Dec 02, 2021 3:05 pm


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1.0 Summary

An effective, ef cient and fair capital markets system is a critical component of a thriving modern economy. With access to well-regulated capital markets, busi- ness owners can more easily and con dently raise money to invest in business ventures, which helps create jobs and boost economic growth.
Well-regulated capital markets also bene t invest- ors by providing opportunities for creating wealth and funding their retirement. If Canadian investors are not well served with clear, reliable, timely and appropriate information about the investments they make, their nancial goals may be compromised.
Canada is the only G20 country that does not have a securities regulatory authority at the national level, partly because of a 2011 Supreme Court of Canada ruling that determined the regulation of capital markets was mostly a provincial responsibil- ity, and partly because there has been insuf cient political support among the provinces for a single “cooperative” regulator.

Canada’s capital markets are regulated through laws established by each of Canada’s 13 provincial and territorial governments, and are administered
by a securities commission or equivalent authority each has established. The Ontario Securities Commis- sion (OSC) and its fellow provincial and territorial securities regulators have formed what is known as the Canadian Securities Administrators (CSA), which acts to co-ordinate certain activities among the
jurisdictions and seeks to promote a harmonized approach to securities regulation across Canada.

The OSC is a Crown corporation accountable to the provincial Legislature through the Minister of Finance under provincial securities legislation and a Memorandum of Understanding. It administers and enforces the provisions of Ontario’s Securities Act (Act) and Commodity Futures Act and administers certain provisions of Ontario’s Business Corporations Act. The OSC’s mandate is to provide protection to investors from unfair, improper or fraudulent prac- tices; foster fair, efficient and competitive capital markets, and con dence in the capital markets; foster capital formation; and contribute to the stability of the Canadian nancial system and the reduction of systemic risk.

The OSC is the largest regulator in Canada due to the size and nature of the capital markets and partici- pants that it regulates. In 2020/21, the OSC employed 629 employees and had about $138 million in revenue and $128 million in expenses. Its Whistleblower Program—the rst of its kind in Canada—awards tip- sters if their information leads to a successful hearing before the OSC’s Tribunal.
The OSC’s mandate involves making rules, monitoring compliance to rules and legislation, and enforcement. Our audit concluded that the OSC’s rule-making processes are lengthy and are not always timely, especially when rules have to be drafted in co-ordination with other securities regu- lators that are part of the CSA. The OSC takes, on average, 2.9 years to develop a new CSA rule, policy

or amendment, more than a year longer than for Ontario-only rules (1.7 years). Delays have also been attributed to the complexity of the sector and strong industry opposition to change. Two changes to increase investor protection (that is, proposed bans on deferred sales charges and trailing commis- sions), took more than a decade to implement, and the trailing commission ban is only partial.

Our audit also found the OSC is vulnerable to political interference, which risks undermining its operational independence and impartiality. For example, on deferred sales charges, the Ministry surprised the OSC by initially publicly opposing the OSC-led CSA’s consensus on needed reform in Sep- tember 2018. The Ministry later reversed its position in May 2021. This incident demonstrated the govern- ment’s ability to override the OSC’s judgment and supportive evidence on a proposed reform.

We also con rmed that the OSC has limited enforcement tools. For example, it does not have the power to issue “tickets” to individuals and compan- ies, for violations that do not warrant a full-blown investigation by OSC’s Enforcement Branch.

The OSC also does not have the power to make orders to seize assets or direct the refusal of driver’s licence renewals to collect unpaid monetary sanctions from individuals and companies who violated securities laws. These powers have been provided to the British Columbia securities regulator. Between scal years 2011/12 and 2020/21, the OSC collected only 28% of $525 million in monetary sanctions it imposed.

Most of the uncollected balance is owed by unregulated individuals and entities, such as those that trade or advise in securities without being registered with
the OSC. The lack of effective enforcement tools has hindered the OSC in deterring wrongful conduct and collecting monetary sanctions when imposed.
The OSC deposits money collected from admin- istrative penalties and other enforcement orders
in a special fund, called the Designated Fund. The Securities Act allows this fund to be used for certain purposes including those related to the bene t of the investor community. Of the amount collected and accumulated in the OSC’s Designated Fund, it
only paid out between 6% and 11%, for the benefit of the investor community as well as for other pur- poses allowed under the Act, each year between 2016/17 and 2020/21. About $208 million in sanc- tions was also directly paid by violators to investors in that period. As at 2020/21, the Designated Fund held $117 million.
We noted during our audit that some of the OSC’s information systems are signi cantly outdated and are not interconnected, which has hindered its ability to effectively utilize data gathered in order to operate more ef ciently.
See Appendix 1 for a glossary of terms.

The following are some of our other signi - cant ndings:

• The OSC could better ensure that firms act in the best interests of their clients. In Ontario
and the rest of Canada, there is no single rule that requires advisors, dealers and their representa- tives (dealers) to act in the best interest of their clients.
Studies have shown that
most investors mistakenly believe that dealers have a legal obliga- tion to act in their clients’ best interest.
To improve the quality and impartiality of advice that invest- ors receive, the CSA, with the OSC as lead, began studying the area and proposing possible
reforms. The reforms originally studied included a fiduciary duty or similar overarching client best interest standard, similar to what is required in the United Kingdom, Australia and the Euro- pean Union.
This would require dealers to act in their clients’ best interest. However, the eventual changes, called the “client-focused reforms,” were narrower, more complicated and would allow systemic conflicts of interest to continue.

• Deferred sales charges and trailing commissions have taken over a decade to be banned, and the ban on trailing commissions only applies to discount brokers and not to other dealers.
The OSC, along with the CSA, took almost a decade to decide to ban deferred sales charges (the fees an investor must pay if they sell a fund within a speci ed time) and trailing commis- sions (the payments that a mutual fund company
makes to dealers for as long as the dealer’s client holds on to the company’s fund). Regulators found that many investors do not know how much they pay in these hidden fees or that they pay them at all. Although trailing commissions will
be prohibited for discount brokers/dealers (that is, dealers who are not permitted, under existing regulations, to provide advice to investors) effect- ive June 1, 2022, under the proposed rules they will still be permitted for full-service dealers. The potential con ict of interest that arises from this arrangement is that a dealer will seek to maxi- mize its own revenue by recommending funds that pay it higher commissions whether or not those funds are best for the investor. The new rules continue to allow trailing commissions so long as dealers have implemented complicated controls to identify, document, disclose, and address con icts. Certain similar existing controls in the investment industry in Canada have proven ineffective in deterring such con icts of inter-
By contrast, securities regulators in the United Kingdom and Australia have banned these types of embedded commissions since 2012.

• The OSC conducts limited reviews to vet the entry of special purpose acquisition compan- ies (SPACs), capital pool companies (CPCs)
and reverse takeovers (RTOs) in the capital markets, thereby not adequately protecting Ontario’s investors from potential losses in these types of companies. For instance, from 2016/17 to 2020/21, the OSC reviewed only
seven CPCs out of a total of 77 CPCs at the time of entry to the market, after identifying issues with their promoters. The OSC also does not always alert investors to the speci c risks posed by these kinds of transactions. In two examples we looked at, private companies that entered the markets by taking over a public company faced many allega- tions and complaints regarding con icts of interest and illegal insider trading. One of the companies was eventually delisted from the stock exchange— that is, the company’s shares were no longer allowed to be publicly traded. The other company
was ordered by Ontario’s Superior Court of Justice to compensate investors for omitting material facts that resulted in an arti cial in ation of the com- pany’s share price. Because issuing securities in the public markets through the traditional IPO method tends to be more expensive for compan- ies due to related legal costs, regulatory scrutiny and the volume of documentation required, the alternative methods of entering the public markets are becoming more popular.
• The Corporate Finance Director lacks statu- tory authority to require companies using regulatory exemptions from issuing prospec- tuses to make adequate disclosures to the investing public following non-compliance. We found that the OSC’s Corporate Finance Branch does not have adequate regulatory authority to respond effectively and on a timely basis when
it identi es a lack of suf cient disclosure by companies that have distributed securities using
a regulatory exemption. Existing rules allow a company or fund to quickly raise money without the expense of preparing a prospectus and ling
it with the OSC. However, the company or fund
is still required to make regulatory disclosures
to the investing public. Between 2016/17 and 2019/20, we noted that the Corporate Finance Branch identi ed non-compliance concerns relating to the lack of adequate disclosure to the investing public in 36 reviews (or 35%) of the
104 reviews of disclosure lings that the branch conducted. The Corporate Finance Branch does not have the power to issue a cease-trade order to a company, that is not a reporting issuer, for non- compliance and can only request that the company voluntarily cease distributing securities until it
has complied with the disclosure requirement. We examined 10 of the 36 reviews conducted by the branch in detail, and in two of the 10 reviews we determined that potential investors could have been better protected if the Director of the Corpor- ate Finance Branch had the legislative authority
to issue a cease-trade order to the company
for insuf cient disclosures. In another two
Ontario Securities Commission 3
cases, branch staff had to request the companies to provide the necessary disclosure to the invest- ors—which the companies complied with—but the Director of the Corporate Finance Branch did not have the legislative authority to require them to comply with securities laws.
• The OSC has limited power to require communication of information to it by the Can- adian Public Accountability Board. The CPAB
is the national and independent body responsible for the regulation and oversight of public account- ing rms responsible for the audits of Canadian reporting issuers. In contrast, the Securities and Exchange Commission (SEC) in the United States has greater oversight authority over the CPAB’s
US counterpart, the Public Company Account-
ing Oversight Board (PCAOB), even though both auditor oversight bodies were created around the same time, in response to the same concerns after the accounting scandals in the late 1990s such
as Enron and WorldCom. The SEC has access to inspection reports of audit rms and names of market participants inspected with de ciencies identi ed by the PCAOB. The OSC does not have the same access to documented information held by the CPAB. Regular communication of informa- tion from the CPAB is important so that OSC staff can determine if they need to review disclosures by speci c market participants and then conclude if there has been a violation of securities law. This is especially important in cases where the CPAB inspections identify material de ciencies in the audits of reporting issuers as such de ciencies may create a heightened risk to the investing public.
• The OSC lacks the necessary technology and analytical tools to conduct ef cient oversight of market participants. OSC staff face challenges in integrating information from various databases that is collected in differing formats. Better IT system integration is needed to identify poten- tial securities law breaches by issuers across the public and private or exempt capital markets (where companies qualify for exemptions from legislative requirements) areas. We found that
the OSC’s Enforcement Branch lacked critical
data analytics, tools and reporting capability to assess the effectiveness of its performance. For example, it is unable to track the average time between the receipt and closure of an enforcement case, or to ag cases that are taking exceptionally long. Currently, these activities are conducted manually by OSC staff.
This report contains 26 recommendations, with 57 action items, to address our audit ndings.
Overall Conclusion
The Ontario Securities Commission (OSC) plays a key role in regulating the largest capital markets sector
in Canada. However, the OSC has been impacted in certain of its regulatory activities to protect invest- ors because of complexity of the sector and industry opposition to change. The regulatory framework and structure in Canada require the OSC to dedicate time and resources to work with other provinces and ter- ritories in the Canadian Securities Administrators (CSA) to promote harmonization while making rules, which has caused signi cant delays in addressing current and emerging market issues.
We noted that certain rules proposed by the OSC that could better protect investors were limited and less rigorous than similar rules in other countries, such as the United Kingdom and Australia.
The OSC needs to guard against perceptions that its rule-making is in uenced by industry interests or swayed by political interference. It therefore needs to ensure it transparently and effectively carries out its mandate to protect investors as it weighs the views of stakeholders, many of whom have vested interests.
The government, for its part, needs to ensure that any disagreements with the OSC on proposed rules are based on evidence and are communi- cated transparently.
The OSC requires more legislative authority and tools to better enforce securities laws and to collect monetary sanctions imposed on unregulated compan- ies and individuals.
In addition, the OSC has not effectively used its accumulated Designated Fund—collected from sanc- tions imposed through its enforcement activities—for the bene t of the investor community as much as per- mitted within the existing securities laws in Ontario.
Similar to the relationship between the Securities and Exchange Commission and the Public Company Accounting Oversight Board in the United States, the OSC should have more access to information from the Canadian Public Accountability Board to strengthen its regulatory work.
We noted that the OSC’s information systems are outdated and/or operate in silos within the organ- ization, which hinders its ability to use data more effectively and ef ciently to monitor and regulate market participants. The OSC can become a more effective regulator by adopting new technologies and by building its capabilities to quickly respond to emer- ging issues in the sector.
The OSC has implemented a paid Whistleblower Program to protect investors and has taken numerous initiatives to promote investor awareness. The OSC also publicly reported on its performance in relation to its stated goals.
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Re: Securities Commissions actions in breach of trust?

Postby admin » Wed Dec 01, 2021 11:16 pm


Regulatory inaction costs investors billions, audit finds

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Ontario’s auditor general said the OSC could have acted sooner to address “hidden and unfair” fund fees

By: James Langton December 1, 2021 10:30

A combination of government meddling and industry lobbying that prevented regulatory action has cost investors billions of dollars in excess investment fund commissions, a report by Ontario’s auditor general’s office found.

The provincial auditor released the results of its review of the Ontario Securities Commission (OSC) as part of its annual report, finding that the regulator could have acted sooner to address “hidden and unfair” fund fees — trailing commissions and deferred sales charges (DSCs) — that cost investors billions of dollars.

“In part because of government intervention and heavy financial industry lobbying, it will have taken more than a decade to ban deferred sales charges and partially ban trailing commissions,” the auditor said, noting that these fee structures have been outlawed in the U.K. and Australia since 2012.
“Investors here could be better protected if the OSC simply followed what has already been done for investors in other countries, by eliminating trailing commissions still paid to full-service dealers,” said Auditor General Bonnie Lysyk in a release.

The report also noted that the OSC could do more to protect investors with higher conduct standards. The client-focused reforms represent a watered-down compromise with the industry and other provincial regulators that are more complicated than a simple fiduciary duty (or best interest standard), the report said, and allow systemic industry conflicts of interest to remain.

In addition to concerns about investor protection, the report highlighted the OSC’s lack of effective enforcement powers, including collection tools that are available to some other regulators (such as the British Columbia Securities Commission), and a lack of investor restitution activity. It also found shortcomings in its vetting of certain issuers.

Overall, the report makes 26 recommendations for improvement at the commission.

“New OSC reforms fall short when it comes to protecting investors and need to be strengthened,” Lysyk said. “Moreover, the OSC needs stronger authority to penalize violators, enforce securities laws and seize assets to better protect Ontario investors.”

Kristen Rose, public affairs manager at the OSC, said the report’s “thoughtful findings” would enhance the commission’s ability to regulate Ontario’s capital markets.

“These findings align with the OSC’s goal to protect investors while continuing to balance multiple complex mandates and working within the parameters of the unique Canadian capital markets regulatory framework,” she said.

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Re: Securities Commissions actions in breach of trust?

Postby admin » Sun Oct 17, 2021 10:00 am ... egulators/

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CRM3 a do-over for beleaguered regulators

Editorial: With several dealers defying the spirit of the client-focused reforms, have regulators finally learned their lesson?

By: James Langton Source : Investment Executive October 12, 2021 00:15

Time and again, securities regulators have found themselves played for suckers as they allow their investor protection plans to be co-opted, distorted and delayed.
Now, with several dealers defying the spirit of the client-focused reforms, have regulators finally learned their lesson? We’ll soon see.

In the coming year, the Canadian Securities Administrators (CSA) are expected to propose measures to expand the cost reporting that investors began to receive under the client relationship model (CRM2) reforms. This forthcoming project, dubbed CRM3, also will aim to harmonize the disclosure investors receive for both their securities (mutual funds and ETFs) holdings and segregated funds.

While the underlying objective of these efforts — ensuring clients receive comprehensive, accurate disclosure about the costs of investing — shouldn’t be controversial, the execution will prove challenging.

There are already rumblings from segments of the financial services industry about the complexity of the task, the expense involved and the need for prolonged transition periods.

However, the regulators will do investors a disservice and further undermine their credibility if they allow plans to get bogged down again.

The process of investor protection reform has become seemingly endless as regulators allow haggling over details, and projects that should have taken months are dragged into years-long wars of attrition. In the end, regulators find themselves disregarded anyway.

For example, the implementation of CRM2 was drawn out over years and the new rules were still met with defiance. Last year, the Investment Industry Regulatory Organization of Canada imposed a record $4-million fine on TD Waterhouse Canada Inc. after finding it made a deliberate business decision not to comply with the CRM2 requirements for certain client positions.

In the year since that ruling, several banks have made business decisions that defy the spirit of the CSA’s latest reforms by dropping third-party funds from branches and limiting clients to in-house products.

Too many times, regulators have trusted dealers to “do the right thing” for investors, only be stung by firms that prioritize their own short-term interests. When the time comes to implement CRM3, regulators must show they won’t be fooled again.

(Advocate comment: Regarding the quote at the outset of this article, "Time and again, securities regulators have found themselves played for suckers as they allow their investor protection plans to be co-opted, distorted and delayed.” I would like to present another explanation that regulators appear as suckers. I believe that it is because regulators are paid by the financial industry to act as suckers, as insulators to guilty parties, as protectors of the industry that pays their salaries. The media acts as a supporter of fooling the public by making it appear that the regulators just cannot keep up to the industry. The media takes this stand because without the advertising revenues of the industry, there would be no media left. Follow the money to see why the media only tells the one side of the story. Follow the money to see why regulators are extremely well paid by the industry, to acts as if they were blind mice. Follow the money, not the media. (translation: Don’t simply take on faith, what is said by those whose incentives are driving by lying)

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Re: Securities Commissions actions in breach of trust?

Postby admin » Tue Dec 22, 2020 2:04 pm

Even the UK is staring to ponder the public regulator topic. Corruption is not yet mentioned but I think they might come to realize...unless the FCA and parliament manages to hide the industry-regulator-funding relationship.
It is hard to hide a £600 Million game where those who guard the public henhouse, and paid by the financial foxes they claim to be protecting the public from...


http://appgonpersonalbankingandfairerfi ... -the-press

Press release, December 22nd 2020
Press Release from
The All-Party Parliamentary Group on Personal Banking and Fairer Financial Services
—— Immediate Release ——
Peter Gibson MP, Chair of the All-Party Parliamentary Group on Personal Banking and Fairer Financial Services is calling for a Parliamentary debate to discuss what’s needed to get the Financial Conduct Authority fit for purpose.

Peter Gibson, Member of Parliament for Darlington and Chair of the newly-formed APPG on Personal Banking and Fairer Financial Services believes the two reports about the FCA that were published last week provide irrefutable evidence that the FCA is failing to regulate effectively.

The first of the two highly scathing independent reports, by Dame Elizabeth Gloster into the collapse of LCF concluded the FCA failed to properly regulate LCF and suggested the watchdog may have contributed to losses by dropping the ball so badly.

The second damning report by Raj Parker into Connaught is equally troubling, showing the FCA’s failure to respond adequately to tip-offs over the years — including concerns from a fellow financial regulator, and the CEO of the bridging loan company involved.

Gibson states:

“Parliament has given the FCA clear statutory objectives which include protecting consumers from harm. It’s all well and good having an apology from the FCA’s current Chair, Charles Randell and the former Chief Executive, Andrew Bailey for what the FCA has done, or more accurately for what it has failed to do; but what we actually need is timely and targeted transformation aimed at ensuring we have a conduct regulator that works – it’s obvious to all observers that we don’t yet have that.

The reports show that there are many serious and interconnected problems that continue to dog the FCA including weak governance, insufficient expertise, ineffective leadership and perhaps most worrying of all a culture at the top of dismissiveness, denial and delay.

The fact that a very recent decision by Chief Executive Nikhil Rathi to appoint one of the individuals responsible for what has happened, Megan Butler, to be in charge of transformation shows that the FCA’s senior leadership still does not grasp the nature of the problem.

The Purpose Statement for the newly-formed APPG that I lead is:

‘To identify aspects of personal banking and financial services where the service providers or regulators have not delivered, or are not delivering, excellence and appropriate consumer protection; to facilitate and encourage all stakeholders to work together to resolve past and present shortcomings, and to bring about positive changes.’

The situation is very simple – Parliamentarians and the public at large expect the FCA to regulate effectively; but there can be no doubt it is failing. Back in February 2016 there was an important debate in parliament about the future of the FCA; the question to be debated now is not whether the regulator is unfit for purpose but, rather, ‘What’s it going to take to get the FCA fit for purpose?’

I will be liaising with all the relevant Parliamentary bodies and many Parliamentary colleagues over the coming weeks to ensure an appropriate inquiry is organised that ensures all stakeholders are spoken to, including the authors of the two reports, those responsible for the FCA’s poor performance and groups representing consumers that have been harmed, to ensure the current crisis in confidence about the FCA’s capability is turned into something positive and truly transformational.

It is of systemic importance, particularly post-Brexit, that the UK can have confidence in those responsible for regulating our strategically-important financial sector.

Nothing should be off the table at this point, especially as the reports show that had the FCA acted properly on the intelligence it was given, the LCF, Connaught and even the Woodford scandals need not have happened at all.”

Kevin Hollinrake MP, a member of Peter Gibson’s APPG on Personal Banking and Fairer Financial Services; and also Co-Chair of the APPG on Fair Business Banking is equally convinced of the need for an inquiry.

He comments:

“I’ve had many reasons to question the competence of the FCA’s leadership over recent years on a range of matters that have caused great public detriment, particularly to people running businesses. The conclusions that Dame Gloster and Raj Parker have expressed in their highly critical reports should be shocking to me. Unfortunately however, they are merely in keeping with the conclusions I have come to over a significant period of time – that there is something seriously wrong with the FCA”.

Another APPG member is taking the opportunity to speak out, feeling strongly about the issue and recognising the importance of the FCA having sufficient integrity for the public to have confidence in it. Paul Howell MP says:

“The FCA should be a foundation of financial integrity and for it to find itself on the wrong end of reports like these undermines public confidence. It is imperative that this is investigated fully and integrity restored”.

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Notes to Editors:

For a full list of the Parliamentarians involved in the APPG see here.
For a full list of the APPG’s Secretariat Committee members see here.
The APPG’s Purpose Statement is:
“To identify aspects of personal banking and financial services where the service providers or regulators have not delivered, or are not delivering, excellence and appropriate consumer protection; to facilitate and encourage all stakeholders to work together to resolve past and present shortcomings, and to bring about positive changes.”

The initial point of contact regarding the APPG on Personal Banking and Fairer Financial Services is the Char of its Secretariat, Andy Agathangelou, who can be reached through
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Re: Securities Commissions actions in breach of trust?

Postby admin » Fri Jan 24, 2020 9:52 pm


Hey OSC: Can you spare $100-million?



January 22 at 3:59 PM ET

Joseph Groia is a securities lawyer and principal of Groia & Co. From 1987 until 1990, he was the director of enforcement at the Ontario Securities Commission.

Do most Ontarians know that there is more than $100-million of public money sitting in a bank account at the Ontario Securities Commission (OSC) just waiting to be spent on health care, education or legal aid?
Unfortunately, they may not as the OSC is badly behind on its statutory corporate-governance obligations (ironically for our capital markets regulator). It is also not clear what Queen’s Park plans to do about it.

Where did the $100-million come from? Under the Securities Act, the OSC is required to pay money it receives under certain orders or settlements into Ontario’s consolidated revenue fund for general governmental purposes unless they designate it to be used for third parties or investor education (the 2(b) Fund). The 2(b) Fund now exceeds $100-million, yet the OSC has not said when or how it plans to spend this enormous amount of public money; nor is there clear transparency or accountability about the process they will follow. What is clear is that the Securities Act allows the Ontario government to take surplus money away from the OSC at any time.

At the core of investor confidence in Ontario is the need for a robust regulatory system and a high-performing securities market regulator. Good securities regulators help to create efficient and competitive markets that encourage innovation and foster growth.
In Ontario, however, we need more than just effective rules and policies; we also need a securities regulator that is transparent and at the forefront of good corporate-governance practices. To do that, the OSC needs to be properly overseen by the Ontario Legislature. Regrettably, the OSC and previous governments have failed to satisfy these obligations.

First, the OSC has failed to enter into a memorandum of understanding (MOU) with the Ontario government since November, 2009. This should happen every five years under the Securities Act.

Second, an Ontario government’s review of the OSC operations is long overdue – it was last done in 2003. Under the Securities Act, this should also happen every five years to review securities legislation, regulations, rules and the legislative needs of the capital markets. In November, 2019, after commentators raised concerns about the delay, the Ontario government announced that it would establish a securities modernization task force. The timing for the start of this review has not yet been announced.

Third, as best we can tell, it has been many years since Queen’s Park has reviewed the OSC’s financial statements or its annual reports. The Securities Act requires that a standing committee of the Legislative Assembly regularly receive a report from a review committee, hear comments and make recommendations to the Legislative Assembly. This was last done in 2004 by the Standing Committee on Finance and Economic Affairs.

We believe that the most important shortcoming of the OSC is its failure to set up an independent adjudicative body that will hear cases brought by the OSC staff. In 2004, an expert committee under the leadership of retired Justice Coulter Osborne urged the OSC to do exactly that – and we are still waiting. Why doesn’t the OSC seem to care that it is seen by many as still unfairly using a home-court advantage; something that much of Bay Street whispers about because saying so too loudly could harm their relationship with their regulator.

Good corporate governance mandates the clear oversight of processes and practices of a regulator such as the OSC. This, in turn, promotes public confidence and the public interest. I believe that the power and discretion afforded to the OSC can only be credible when there is effective government oversight that ensures the OSC’s accountability and transparency. Given Ontario’s current budget shortfall, we all should be concerned about if, when and how the OSC will spend $100-million of our public money. At the very least, we can hope that Premier Doug Ford or Minister Rod Phillips will read this and take action to ensure that the OSC starts to meet all of its obligations to the government and that this money is put to better use than just sitting in an OSC bank account.

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Re: Securities Commissions actions in breach of trust?

Postby admin » Fri Sep 13, 2019 3:54 pm

Artifice regulatory bodies, allow misleading data reporting, so falsified “advisors” can continue to financially prey upon at....never.
=================== ... your-back/

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Dear Canadian Investors: you’re own your own. Or should I write ‘Poor” Canadian Investors? Those that regulate the Canadian Mutual Fund industry do not have your back.

That’s been the case for many decades, so let’s just say that not much has changed. Canadians pay the highest mutual fund fees in the developed world according to many studies including a recent Morningstar study that looked at 25 nations. Those high fees have been the norm for many decades. That average mutual fund fee is over 2.2% annual. Yes, on average, they’ll take that chunk every year in good years of investment returns and in bad years of investment returns. They always get paid. It’s just like those wonderful Questrade television ads that suggest clients should pose the tough questions to their financial advisors. In one of those ads the poor guy realizes that everyone is getting paid ‘but me’.

The regulators have stood by and watched as Canadians continue to pay those high fees, decade after decade after decade. They’ve got someone’s back alright.
The Mutual Funds Dealers Association of Canada and the Canadians Securities Administrators and Investment Industry Regulatory Organization of Canada regulate the mutual fund industry. In Quebec we also have the Chambre de la securite financiere.

There was some movement in an attempt to address the high fee situation in Canada and to address the fact that most Canadians are not aware of the fees that they pay, or how those fees are paid. Yes, the regulators are aware that Canadians are not aware. So there were some disclosure rules put in place so that mutual fund dealers would have to show on annual statements the amount of fees paid. The problem is,
the annual statements that are required are not required to actually show the TOTAL fees paid. No, I’m not making this up.
In an attempt to educate Canadians on the amount of fees they are charged, the statements are only required to show a portion of the fees. And the amount shown on the annual statements is usually a smaller portion of the actual fees paid. Obviously, it’s not an attempt to clearly educate Canadians on the total fees that they pay.

Show Canadians the fees they pay.

If we wanted Canadians to be aware of the total fees that they pay, we would regulate that the financial industry must report the total fees that Canadians pay? Common sense?

Instead the annual statements might ‘unwittingly’ lead to confusion or a misdirection on fees paid. The amount on the statements must show the fees that the mutual fund dealer has charged you. The dealer is the advisor that ‘sold you’ your fund. The fee or monies that it takes to create and manage the actual investments (management expense) is not shown. In a fund that has a total fee of 2.5%, the percentage going to the dealer (advisor) would typically be 1%. That other (larger) 1.5% is not accounted for.

After more consultation and studies the regulators (CSA) recently came out with another series of mandates and questions for further consultation. There was a positive move or two, but nothing to answer the big questions, such as how to educate Canadians on fees or to show the total fees that they pay. Many countries have eliminated those embedded fees (trailing commissions) paid to the mutual fund dealers, so that there is more transparency. That was on the table in Canada, but regulators indicated that they will not go that route. There is certainly a lot of outrage out there on the lack of protection for Canadian Investors. There are many open letters to regulators, with many smart, well meaning individuals and groups offering up suggestions and ideas. Personally, I think it’s all like pushing on string. Another phrase that would come to mind is falling on deaf ears.

On the regulation front I do agree with Ken Kivenko, a very determined and tireless investor advocate who operates

“In the face of this unsatisfactory state of affairs it is time to seriously consider the establishment of a national financial consumer protection agency independent of existing federal and provincial regulatory agencies …”

We need an agency that will stand up for Canadian investors. But will more oversight help our oversight problem? I honestly applaud the many advocates for (still) trying, still pushing on that string.

I mostly take a different approach. To Canadian Investors I’d suggest the obvious that regulators don’t have your back, but many others do have your back. I have your back. If you check my site, you’ll see the many companies that also have your back. The Canadian robo advisors have your back. That includes investment offerings at major banks such at Tangerine and BMO with their Smartfolio offering. Tangerine Investment Portfolios are mutual funds, but they are offered at fees that are less than half the industry average. The exchange traded fund industry that is dominated by iShares and Vanguard has your back. There are mutual fund companies such as Mawer and Steadyhand that have your back with sensible advice and lower fee options. Steadyhand President Tom Bradley recently offered that it was A Bad Day for the Canadian Investor.

Instead of trying to fix the mutual fund industry, let’s just say goodbye and leave the traditional high-fee mutual fund industry behind. As I wrote in my first blog, it’s horse and buggy. I know that the mutual fund industry is broken, and I don’t think it’s going to be fixed. Some things are just not worth the effort. I’d rather concentrate on the positive, moving to the positive and that includes the many simple low fee investment options available to Canadians.

Cut and run from high fee funds.

I named my site Cut The Crap Investing. The ‘Cut’ part means cut and run from those high fee investments.
We can leave the regulatory crap behind as well. If you can’t beat ‘em, leave ‘em. It’s my mission, and the mission of many others in the financial industry to help Canadians move to sensible low fee investments
. I can help (no charge) and so can many others. I’d suggest you read and head to, for starters.

The fact that the Canadian mutual fund industry has its “issues” does not have to be a problem, because there is a simple solution. There are many simple solutions. And yes, at the same time we should still put pressure on the regulators and the mutual fund industry as Canadian households are still largely invested in traditional high fee mutual funds, and that trend has not changed fast enough.

The only event that will really work is Canadians talking their monies elsewhere. Money talks. Money that walks speaks loud and clear. Once again, Canadians, it’s time to cut the crap and say goodbye to high fee investing and say hello to keeping more money in your pocket. Drop me a note and I’ll show you how easy it is. Breaking up is not hard to do.

Dale @
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Re: Securities Commissions actions in breach of trust?

Postby admin » Fri Sep 13, 2019 1:00 pm ... rs-report/

CRM2 fee disclosures fail to enlighten, empower investors: report

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New research into investment fee disclosures mandated under the Client Relationship Model (CRM2) reforms finds that investors still don’t understand what they’re paying, or what they should do about it.

A report released Monday by the Ontario Securities Commission’s (OSC) Investor Office, which was prepared by U.K.-based behavioural economics firm Behavioural Insights Team (BIT), finds that many investors don’t understand what they’re paying based on the annual fee reports required by CRM2.

In particular, the research indicates that many investors don’t understand that the reports only show dealer fees, and don’t include product costs.

It also says most don’t understand the concept of embedded compensation, such as trailer fees.

“Indirect fees, like commissions paid to investment firms by fund managers, create real confusion among investors,” the report says. “Most of our qualitative research participants did not readily grasp the relationship between investment fund managers and investment firms and therefore how indirect charges work.”

The report finds that the language used in most fee reports is not intuitive, and that some investors have a hard time grasping even basic terms.

“In our interviews, almost all participants had never heard of or didn’t understand terms like deferred sales charge (DSC), trailing commissions, and third-party compensation,” the report says. “Even the terms ‘compensation’ and ‘commission’ were unclear to many interviewees. This problem is made worse by the inconsistent use of terminology across investment firms.”

Ultimately, the research finds that annual fee reports fail BIT’s so-called “flip” test.

“In the flip test you put a communication face down then flip it over. If you can’t understand the purpose within seconds of flipping it over, it has failed the flip test,” the report explains.

In addition to not understanding the annual fee reports, the firm says that many investors may underestimate the impact of the investment costs that are disclosed. Many also don’t have any basis for determining whether their costs are fair or not, and may not be able to act on the information that they receive.

The report includes a list of 24 recommendations to improve the quality of, and investor comprehension of, fee disclosure.

“We found that a simple summary of the most critical information, supplemented with a more detailed description of fees that included explanations of why those fees were incurred, was most effective in boosting comprehension,” it says.

It also suggests that other tactics, such as developing benchmarks that investors could use to test the fairness of their fees, could be useful in making fee disclosure meaningful to investors.

However, the report stresses that the challenge facing regulators goes beyond just making CRM2 disclosure more understandable to investors.

“To capitalize on the promise of CRM2, the sector needs to consider how to support investors in moving from understanding to action,” the report says.

“Supporting investors in making better-informed choices will mean helping them understand their options and reducing the friction in taking action.”

The OSC calls on industry firms to review the report and to consider testing some of the tactics outlined by BIT.

“This behavioural insights research study shows how plain language and attention to disclosure design can place investors in a better position to make informed decisions about their finances,” said Tyler Fleming, director of the OSC’s Investor Office, in a statement. “Improving disclosure can be an effective way to enhance the investor experience.”

And then there is Dale’s great insights at Cut The Crap investing....great writing, great insights! ... tatements/

In particular, the research indicates that many investors don’t understand that the reports only show dealer fees, and don’t include product costs.

Why should that be a surprise? The statements that investors receive only show the dealer fees. It feels asinine to even write that sentence. It’s a forgone conclusion that investors would not know of fees that are not shown? How would they know of something that is not there? Of course, that’s just ridiculous, but in Canada it passes as regulation designed to protect investors and make investors more aware of the fees that they pay.

If one were a skeptic they would say that the regulations where designed to confuse investors.

I’ve touched on that in previous posts. Here’s Canadian Investors, The Regulators Do Not Have Your Back. From that post ” The problem is, the annual statements that are required are not required to actually show the TOTAL fees paid. No, I’m not making this up. In an attempt to educate Canadians on the amount of fees they are charged, the statements are only required to show a portion of the fees. And the amount shown on the annual statements is usually a smaller portion of the actual fees paid. Obviously, it’s not an attempt to clearly educate Canadians on the total fees that they pay. “

My uh, suspicion was that Canadians would be confused by the statements. Now we know thanks to that research. Ya thanks for making that wild guess Captain Obvious.
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Re: Securities Commissions actions in breach of trust?

Postby admin » Tue Sep 10, 2019 4:35 pm ... -standard/
States sue SEC over failure to introduce fiduciary standard

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The new broker conduct rule waters down the protections in the Dodd-Frank Act, the states say

By: James LangtonSeptember 10, 2019 12:26

A collection of U.S. state attorneys general is suing the U.S. Securities and Exchange Commission (SEC), charging that the regulator is putting brokerage industry interests ahead of investors’ interests by proposing a weak industry conduct rule.

Lawmakers from eight states, led by New York’s AG, Letitia James, filed a lawsuit in federal court alleging that the SEC’s broker conduct rule, known as Regulation Best Interest, fails to meet the standards for investor protection established in the Dodd-Frank Act.

“With this rule, the SEC is choosing Wall Street over Main Street,” said James. “Instead of adopting the investor protections of Dodd-Frank, this watered-down rule puts brokers first.”
The Dodd-Frank Act, which was adopted in 2010 following the financial crisis, called for the SEC to draft rules that would harmonize the standard of conduct for broker-dealers and investment advisors.

Historically, brokers have operated under a suitability standard, whereas investment advisors have faced a higher fiduciary standard.

The lawsuit charges that the SEC’s rule in this area fails to introduce a uniform fiduciary duty for brokers and advisors.

Among other things, it argues that the SEC’s new rule “fails to meaningfully elevate broker-dealer standards beyond their existing suitability requirements.”

It also says that the rule is likely to perpetuate investor confusion by relying on a vague “best interest” standard.

“By enacting this flawed regulation, the SEC ignored Congress’ express direction in the Dodd-Frank Act, making the regulation unauthorized, arbitrary, and unlawful,” the AGs argue, adding that the rule “fails to address the confusion felt by consumers and fails to remedy the conflicting advice that motivated Congress to act in the first place.”

The lawsuit, which was brought in the Southern District of New York, is supported by the AGs of California, Connecticut, Delaware, Maine, New Mexico, Oregon and the District of Columbia.

In Canada, efforts to introduce a regulatory best interest standard floundered in the face of industry opposition.
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Re: Securities Commissions actions in breach of trust?

Postby admin » Thu Aug 22, 2019 5:27 pm

We thought you'd appreciate this.


In praise of the CSA...?

The CSA or Canadian Securities Administrators is an umbrella organization of Canada‘s provincial and territorial regulators. This umbrella is used to shield the investment industry from greedy investors - “Rogue” investors who feign financial illiteracy when complaining have been stymied .The CSA also has been very effective in keeping maniacal investor advocates at bay.

The CSA has been criticized for feeble investor protection. On the other hand, Canada is well recognized as a magnet for wrongdoers. The CSA record for protecting dealers is unrivalled in the Western world. It is in fact world class and merits appropriate recognition. The CSA deserves glorification and praise. Why do we say this?

Propaganda: Each year the CSA publishers an enforcement report that expounds its many virtues. In fact, only a small fraction of dealer wrongdoing is ever enforced and virtually none of the fines levied against individuals is ever collected.
Exclusion: Except for the Ontario Securities Commission, none of the provincial regulators have an investor advisory panel. Conversely, regulators frequently participate in industry dealer conferences.

Pseudo Consultation: “Public” consultations are held knowing that few investors will be engaged. On paper, the CSA can say it consulted. Regulators are swamped with industry input.

Permit self-regulation: By establishing the SRO’s, statutory regulators offload regulation of investment dealers onto a private entity. This private club takes care of its own by establishing minimum standards, lax enforcement and stunningly low fines and sanctions. These SRO’s purposely avoid getting involved with investor restitution.

Use “no-contest “settlements: Such settlements do not require dealers to admit fault but at least they provide victims to get some of their money back. Deterrence value is questionable.

Embrace embedded commissions: Embracing embedded commissions despite empirical evidence and overwhelming facts is good for dealer profitability .The CSA allows embedded commissions to prevail thereby enabling skewed advice to be standard practice.

Avoid a Best interests standard: The CSA has shot down the Fair Dealing Model and Targeted reforms in an effort to ensure dealers are not required to act in the best interest of clients. The CSA claims it is better to try to manage conflict of interest in the best interest of clients rather than to prevent conflicts of interest and act in the best interests of clients.

Titles: At one time the people who sold securities were registered as salespersons but when new CSA rules came into effect the registration became Dealing representatives. Apparently, the salesperson label was too informative which caused investors to be more on the alert for dealer BS. The CSA went further and allowed all manner of titles to be used thereby building investor trust.

Fee opaqueness: The more investors know about the true cost of investing, the less likely they are to be tricked by dealers. The CSA decided that investors should be told half the costs when CRM2 was plotted .So far, that has bamboozled Canadians. CRM3 which would disclose the total costs has been put in the regulatory garbage bin.

Flawed risk disclosure: The clearer the disclosure of risk, the more questions from potential mutual Fund investors. The CSA , despite vocal investor opposition, therefore implemented a risk rating system that is incomplete , unintelligible and inaccurate. The actual risks involved are not disclosed.Dealers are delighted as sales continue to grow.

Flawed Complaint handling: Under unrelenting pressure from investor advocates the CSA concocted the Ombudsman for Banking Services and Investments. The word “ombudsman” is impressive but the CSA ensured that the OBSI board included industry directors but no reserved positions for investor- centric directors. Just to be sure dealers were protected, the OBSI was not given a binding decision mandate.

Revolving doors: Investment dealers recruit staff from provincial CSA securities regulators with promises of a lucrative job and compensation. Regulatory officials thus become less focused on regulation and enforcement than on getting their next job in the industry they are supposed to oversee.

Recently, the CSA has gone on the offensive .It is no longer content with stalling or watering down proposed dealer reforms. Some CSA jurisdictions are starting to give the self-regulators immunity from investor lawsuits.The CSA now has boldly decided to attack existing rules under an impressive banner “Burden reduction”. When the project is complete, the CSA will be able to protect dealers better and at lower cost.
The CSA has a near perfect track record in protecting dealers. It has never missed an opportunity to miss an opportunity to protect investors. The CSA has demonstrated uncommonly aggressive inactivity in protecting investors and stunningly smooth PR to protect dealers.

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Re: Securities Commissions actions in breach of trust?

Postby admin » Thu Jun 27, 2019 9:49 pm


Screen Shot 2019-06-27 at 10.46.37 PM.png

Today, the SEC finalized what they’ve been calling “Regulation Best Interest” (Reg BI), along with a set of disclosure requirements (Form CRS) and new guidance explaining the scope of the fiduciary duty under the Investment Advisers Act. All three are indefensibly weak, representing a betrayal of the SEC’s duty to protect investors from conflicts of interest among financial advisers who siphon away tens of billions of dollars of their clients’ hard-earned savings every year.

• Does not actually require advisers to act in the best interest of their clients, instead just adopting the weak and inadequate suitability standard that has been on the books for years.
• Misleads investors into thinking they’re receiving protections the rule doesn’t actually deliver.
• Relies far too much on disclosures that are designed by industry and delivered too late to be
helpful, an investor protection approach that has long been recognized as ineffective.
Imposes no duty on advisers to eliminate a broad range of powerful compensation incentives that will continue to corrupt advice; only prohibits a narrow group of sales contests that create high pressure to sell a specific type of security within a short period of time—incentives
already largely prohibited under FINRA rules.
• Fails even to require mitigation of all material conflicts of interest.
• Remains too narrow in scope, applying only to specific recommendations and imposing no
ongoing duty of care and loyalty absent an express agreement

• Remains too confusing, failing to deliver simple, clear, and helpful information about the services that advisers provide, the duties they owe, and the compensation they receive.
• Gives industry “flexibility” in how to convey the disclosures, allowing firms to soothe and confuse investors with what amount to marketing materials.
• Was never adequately tested to ensure that it would be effective. INVESTMENT ADVISERS ACT GUIDANCE:
• Guts the fiduciary duty for registered investment advisers under the “Investment Advisers Act” by allowing advisers to satisfy what was a heightened duty simply by disclosing their conflicts of interest in a document that their clients are unlikely to read or understand.
• Even dilutes the long-standing duty of investment advisers to monitor accounts over time.
• Effectively abolishes what was once regarded as the gold standard for financial professionals.

• The SEC has sided squarely with industry, abandoning investors who need a champion to protect them in the financial services marketplace.
• The harm will be substantial and longstanding, as tens of millions of American workers and retirees will continue to suffer at the hands of advisers who put their own financial interest ahead of what’s best for their clients—now with the SEC’s endorsement. ... 6-5-19.pdf

Screen Shot 2019-06-24 at 8.10.44 PM.png ... 1 min 30 seconds of SEC Senate testimony 2009
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Re: Securities Commissions actions in breach of trust?

Postby admin » Thu Jun 27, 2019 9:04 pm

SEC's So-Called Best Interest Rule is a Fraud That Protects Industry Profits, Not Investors
June 5, 2019
Wednesday June 5, 2019

Washington, D.C. – Dennis Kelleher, President and Chief Executive Officer of Better Markets, issued the following statement in response to the SEC’s vote today to finalize its misleadingly labeled “Regulation Best Interest”:

“On the 85th anniversary of the founding of the SEC, the SEC is turning its back on investors and protecting industry profits by finalizing a mislabeled rule that does not require brokers to put investors’ best interest first."
Adding insult to injury, the SEC is misleading investors about what the rule does and doesn’t do while enabling brokers to do the same. If the SEC’s own 10b 5 anti-fraud rule applied to the SEC’s own statements about Reg BI, then it would likely have to sue itself for knowingly misleading investors.

“No amount of carefully crafted, Orwellian spin from the SEC will be able to hide the stain that this rule will leave on the history of the SEC. If a truth-in-labeling law applied to the SEC, then this rule would be called ‘Broker Profits First, Investors’ Savings Second.’

“The inevitable result of this rule will be tens of billions of dollars moved from investors’ pockets into brokers’ bonuses due to the sale of high priced and poor performing products. We look forward to a future when a new SEC returns to its original mission from 85 years ago of putting investors’ best interests first.”

A one-page fact sheet is attached and accessible on

Better Markets is a non-profit, non-partisan, and independent organization founded in the wake of the 2008 financial crisis to promote the public interest in the financial markets, support the financial reform of Wall Street and make our financial system work for all Americans again. Better Markets works with allies – including many in finance – to promote pro-market, pro-business and pro-growth policies that help build a stronger, safer financial system that protects and promotes Americans’ jobs, savings, retirements and more. To learn more, visit

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1 min 30 seconds of SEC as the enemy of the American people: Senate Hearing
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Re: Securities Commissions actions in breach of trust?

Postby admin » Mon Jun 24, 2019 4:21 pm

One minute 39 seconds from just after the economic looting of society in 2008 by Wall Street Organized Crime. Senator Gary Ackerman of New York State says:
"Our economy is in crisis Mr. Vollmer. We thought the enemy was Mr. Madoff - I think it is you. You were the shield - You were the protector. Your value to the American people is Worthless."

Speaking to then SEC chair Vollmer.

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Mr. Vollmer resigned from the SEC 9 days after. ... 1cvNG-tOtg

The significance of this when looked at over a decade or two of Securities Regulatory history in most of the developed world, is that the regulators are simple “theatre”, a stage set facade and some expensive actors, who get paid millions of dollars (plus future considerations, appointments etc) to pretend to be the protecting the public, while in reality they are protecting the financial masters they truly serve.


Securities Regulation is looking more like well organized crime, in a perfectly designed artifice of public protection.

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It is the most amazing example of a perfect organized crime as one can ever image. Lawyers, regulators, banks, accountants, politicians, and so on it an amazingly orchestrated system of co-operation to unjustly enrich themselves while farming the public of trillions of dollars cumulatively. Tens of billions per year is the calculated amounts that I can come up with of unjust enrichment in Canada that to the fact that all “measured” (blue collar) crime harms is Canada is also in the tens of billions.

Investment System Fraud
Small Investor Protection Association (Canada)
Canadian Justice Review Board
Industry of Accountability


If you watch the 1 min 39 sec video below, you will see that Senator Gary Ackerman of New York State is one man who for one moment, truly gets it...THANKS Senator Ackerman!! (now retired)

Screen Shot 2019-06-24 at 5.22.18 PM.png ... 1cvNG-tOtg
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Re: Securities Commissions actions in breach of trust?

Postby admin » Tue Apr 23, 2019 8:13 pm

Soooo curious to learn more about this “discovery” I just now stumbled upon.

The Ontario Securities Commission is now branding itself publicly as an “Independent Crown Corporation”, for what appeared to my eyes to be the first time ever.

It is not the first time ever, but the change has come about so slowly and subtly that I missed it until now. Here is the notes I made in an email to others to they to understand just what caused this public re-branding of backstory of the OSC. If anyone knows I am all ears.

visit the Facebook Group titled “Investment System Fraud” is you wish to chime in with anything that might be of the public interest. ... =bookmarks



What an eye opener!

OSC now states openly that they are an independent Crown Corporation (date I first saw this particular verbiage used was April 23, 2019)

Previously, in my mind the OSC’s “story” or “public pitch” if you will, was that they were an Ontario Government agency with legislated power to regulate public markets....etc.,etc. (it was not true, and the evidence of rigging and regulatory capture was/is significant enough to ponder criminal Breach of Trust informations against those in this agency....and also to wonder aloud if the Ontario government itself would be “on the hook” (responsible) for investors losses if and when the public learned that their government had allowed them to be financially guarded entirely by foxes....

Anyway I am intrigued to learn and understand more.

in 2015 annual report it also appears (independent Crown Corporation)

In 2010 annual report not a single instance of the word “independent” in the entire OSC report.

Zero mention of the word “Independent” or the word “Crown” in 2009 report

This shift was so subtle, and slowly done, that I missed it entirely….

I am still getting over the tectonic shift in tone just now brought to my attention….

I appreciate the comments from others, and I am not picking at anything in particular, but I still wonder why they felt the need to shift to this particular wording? Were we getting a little bit close on some of our thoughts? IS CBC getting someone worried with some of their work?

I dunno what, but something has shifted.


Gresham's Law: "Bad money drives good money out of circulation”

Hunt’s Law: “Fake news drives real news out of business”

Elford’s Law: "Fake Financial Regulation drives honest financial regulation out of business.”

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Re: Securities Commissions actions in breach of trust?

Postby admin » Thu Apr 18, 2019 8:53 pm


(Client Relationship Model #2 (CRM2) is a #CRIME upon Canada by Canadian Securities Commissions)
Read what Dale Roberts mentions about the new “Client Relationship Model” here:

Clear disclosure cleans up water heater rental scams. Why can’t the mutual fund industry do the same?

posted to Dales great advice site:

Last week I turned the kitchen tap to HOT and all I received was lukewarm water. I’m certainly not the world’s greatest handyman (my wife would be laughing if she actually read this blog, she doesn’t), but I knew it was likely the hot water tank. Sure enough I went into the basement and discovered that the water heater pilot light was out. Off to Google I went. How to restart a pilot light? I also called my Brother, he knows his way around home repairs.

My bro said open up your basement windows for a while, make sure you don’t smell any gas, make a meaningful and heartfelt prayer before you strike that match. I’ll admit it was more than scary. But it would not start. After the fact I found out that I did everything right, but the gas line heading into the pan was shot. The tank was about 17 years old. Time for replacement.

Rent vs buy for your water heater?

As you may know, you can rent your water heater. You might even be lured into a lease-to-own furnace or air conditioner according to this article from Ellen Roseman of the Toronto Star. Be careful out there folks. And for more on Enercare complaints and issues please have a read of Enercare’s customer service did not go to plan.

Certainly, do the math. It’s almost always going to be cheaper to own your water heater vs renting. Please have a read of this post on Boomer and Echo Water Heater Rentals: Do Ontario Residents Get Hosed? where Robb Engen lays out the options and benefits and potential traps. In the end my wife and I decided to rent the water heater. Mostly because, if I have my way, we will be leaving our lovely home and neighbourhood in 4 years or so.

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It will actually be ‘cheaper’ for us to rent. We did not have to pay for the two repair and installation visits (well, we’ll see when we get the final bill), we have ongoing coverage for repairs and service and we will receive a $300 Visa gift card. Certainly that gift card might be a bit of a short-term hook for many unsuspecting water heater renters.

But this post is not about water heaters, it’s about the disclosure rules. I had to agree to the terms and conditions over the phone before they would install the new water heater. When I called, the Enercare representative was kind and clear and patient and she answered all of my questions. She gave me my monthly costs including taxes, she gave me the total purchase price if I wanted to go that route, she explained that I was responsible for that monthly payment even if we sold the house. If we move we have to disclose to the new homeowners that there is a rental agreement. The new homeowners will need to sign on. There were certainly more disclosures on the service agreement and on what was and wasn’t covered. etc. etc. I was told that the call was voice recorded and that I could agree to the terms and conditions if I wanted to proceed. I agreed. I knew what I was getting into.

Here’s a link to the larger suite of rules governing the industry. Thanks to Ellen Roseman for this.

Why can’t we tell mutual fund investors how much it will cost?

The mutual fund industry is uh, ethically challenged. For the compliance and regulatory picture have a read of Ken Kivenko’s Canadian Fund Watch. The number of cases and complaints would dwarf the little water heater arena. The dollar value of fees paid (unnecessarily in my opinion) by Canadians is in the tens of billions annually. It’s a societal issue. And yet, Canadians continue to not know of the fees that they pay on mutual funds. ‘Advisors’ at banks and mutual fund sales offices continue to not disclose those fees. When I was an advisor at Tangerine Investments I would conduct portfolio analysis for clients (on their outside investments) and they would send me their statements and reports. I would ask them to ask their bank or advisor how much they were paying in fees. Too often they were told that they were not paying any fees at all, to the advisor (a trick answer to a simple question). Clients most often could not get a clear answer on fees, in writing or by verbal description.

In an effort to add ‘clarity and transparency’ the regulators mandated that mutual fund dealers must now send annual statements outlining the fees paid. But guess what, those statements only have to disclose the fees paid to the dealership (advisor) and not the total cost of the fund. If a Canadian has a mutual fund with a total MER of 2.2%, they will likely get a statement showing the fees paid are 1% – the trailing commission paid to the dealership. The 1.2% is missing from the statement. The larger part of the fees is not disclosed.

Hence the Cut The Crap Investing blog

There is no honest effort to disclose the total fees paid on mutual funds in Canada. In fact, the regulation leads to confusion not clarity. This regulatory effort is called CRM – Client Relationship Management. It appears obvious that there will be no regulation that requires the mutual fund industry to disclose all fees in those annual statements. Sorry investors, the regulators do not have your back.

It’s up to you to help yourself. You can self-direct your own ETF portfolio, use a Canadian Robo Advisor, or contact a fee-for-service advisor.

Thanks for reading. Kindly hit those share buttons for Twitter, Facebook and LinkedIn. You can Follow Cut The Crap Investing at the very bottom of this page.

Contact me, Dale @ or better yet, leave a message.
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Re: Securities Commissions actions in breach of trust?

Postby admin » Thu Apr 11, 2019 8:57 pm

Summer 2010

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Ed.: The principles of wilful blindness have recently surfaced in the context of copyright infringement and in manufacturer recalls and in allegations against banks in their wilful blindness to Ponzi schemes and with reference to monies impressed with a trust. In R. v. Briscoe , the Supreme Court of Canada recently reviewed the doctrine of wilful blindness in the context of parties to an offence under the Criminal Code . The case is reviewed here as it may offer clarifications of broader application.

The facts in R. v. Briscoe are brutal and graphic and unnecessary to delve into for the purpose of this article. Suffice to say that a teenage girl was murdered, and what happened to the victim was not the main question at trial. There was also no serious question that the homicide fell within the category of first degree murder, either because it was planned and deliberate, or because it was committed during the commission of a crime of domination.

In the Court of Appeal of Alberta the issue was whether the trial judge erred in law by failing to consider whether Mr. Briscoe was "wilfully blind to the harm his cohorts intended to cause the victim."

Canadian criminal law does not distinguish between the principal offenders and parties to an offence and makes perpetrators, aiders and abettors equally liable. Of course, doing or omitting to do something that results in assisting another in committing a crime is not sufficient to attract criminal liability. The aider or abettor must also have the requisite mental state, or mens rea . Specifically, in the words of s. 21(1)(b) of the Criminal Code , the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime.

In the Court of Appeal, Mr. Briscoe argued that wilful blindness was only a heightened form of recklessness, and recklessness is inconsistent with the very high mens rea standard for murder under the Criminal Code . The Court of Appeal rejected that argument.

The Supreme Court of Canada agreed and indicated that wilful blindness, correctly delineated, is distinct from recklessness and involves no departure from the subjective inquiry into the accused's state of mind that must be undertaken to establish an aider or abettor's knowledge.

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea .
The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. This was similarly stated in the U.S. case of State v. McCallum : "[T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further [i]nquiries, because he wishes to remain in ignorance, he is deemed to have knowledge…. The rule that wilful blindness is equivalent to knowledge is essential…."

In Jorgensen (Supreme Court of Canada, 1995), Mr. Justice Sopinka explained: "A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"
Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. In Sansregret , the Supreme Court (in 1985) said:

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. [Italics added.]

While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but "deliberate ignorance."

Glanville Williams, cited in the Sansregret case, explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential….

A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realized its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge. [Italics added.]

In this case, the Supreme Court found that the evidence cried out for an analysis on wilful blindness. Indeed, Briscoe's own statements to the police suggested that he had a strong, well‑founded suspicion that someone would be killed, and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. The trial judge's failure to consider Briscoe's knowledge from that perspective constituted a legal error that necessitated a new trial on all charges.

This article appeared in the Lang Michener LLP InBrief Summer 2010. ... 2rKDHHyuAU

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