Chris MacIntyre
Chris MacIntyre, Lawyer, McInnes Cooper
 

Crowdfunding’s popularity as a way to raise capital is on the rise. In March 2014 the Nova Scotia and New Brunswick securities commissions joined with regulators in Manitoba, Saskatchewan, and Quebec in proposing a regulatory framework that would provide new prospectus exemptions for crowdfunding. If implemented, the new framework will be directed toward facilitating securities law compliance by SMEs and start-ups when accessing capital through crowdfunding.

What is crowdfunding? Simply put, crowdfunding is way to access capital. Individual investors who together form the “crowd” provide small amounts of money to finance a project or business venture, typically through an Internet portal. Crowdfunding investors have traditionally received products or services in return for their investment, but increasingly investors are receiving an equity interest in the business they fund. This brings securities laws into play.

What securities laws apply? Every Canadian province has laws regulating trading in securities, an important purpose of which is investor protection. Securities laws generally require the business issuing the security (i.e., the issuer) to provide a prospectus to investors, unless the issuance fits within an exemption from this requirement. A prospectus is a detailed document describing the security to be issued and providing other information about the issuer and the offering. Since it’s a time-consuming and costly document to prepare, issuers usually try to fit the issuance into an available prospectus exemption.

What exemptions are proposed? Although existing securities laws apply to securities issued in the crowdfunding context, the prospectus exemptions currently available don’t work well for crowdfunding. As noted earlier, the securities commissions in Nova Scotia and New Brunswick have partnered with other provincial regulators in publishing proposed prospectus exemptions for crowdfunding. Neither Prince Edward Island nor Newfoundland and Labrador has adopted any crowdfunding exemptions yet, and neither participated in this proposal, which would create these two new exemptions from the requirement to file a prospectus:

1.  Crowdfunding exemption: This would be available to reporting and non-reporting issuers formed in Canada that have their head office in this country and a majority of directors resident here. Some key features of this proposed exemption are:

  • The issuer cannot have raised more than $1.5 million under the exemption in the 12 months before the current offering.
  • The offering can only remain open for up to 90 days.
  • An investor can invest a maximum of $2,500 in any single investment under the exemption and a maximum of $10,000 total during a calendar year.
  • Issuers must give investors an offering document identifying the minimum offering size and must provide ongoing financial and other disclosure.
  • Crowdfunding portals must be registered in the restricted-dealer category and comply with the requirements applicable to exempt market dealers (with certain exceptions).

2. Start-up exemption: This exemption would be available to non-reporting issuers with their head office in one of the provinces that participated in the new proposal, but not to investment funds. Some key features of this proposed exemption are:

  • The offering can’t exceed $150,000.
  • The distribution can remain open for only 90 days.
  • An investor may invest a maximum of $1,500 in any single investment under the exemption.
  • The exemption can be used a maximum of twice in a calendar year.
  • Crowdfunding portals wouldn’t be subject to a registration requirement under securities law if they meet certain criteria.

What are the next steps? The proposed exemptions were open for public comment until June 18, 2014. The regulators in the participating provinces will now review the feedback received and decide whether to proceed with the proposal, and if so, whether further modifications are necessary.

What is the impact? The details still need to be fleshed out, but, generally, this has the opportunity to be a positive development for SMEs and start-ups. If implemented, the framework proposed by the regulators will be directed toward facilitating regulatory compliance by SMEs and start-ups when accessing capital through crowdfunding, by means of creating a tailored set of rules balancing the needs of both issuers and investors.

McInnes Cooper has prepared this article for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this article. McInnes Cooper excludes all liability for anything contained in this article and any use you make of it.

© McInnes Cooper, 2014.  All rights reserved.  McInnes Cooper owns the copyright in this article. You may only reproduce and distribute it with McInnes Cooper’s consent.  Email McInnes Cooper at publications@mcinnescooper.com to request consent.

Chris MacIntyre is a lawyer with McInnes Cooper. As a member of the firm’s corporate finance and securities team, he advises clients on transactions such as securities offerings, private placements, and mergers and acquisitions, as well as corporate governance and regulatory compliance matters.