Applying for discretionary relief

If a company is unable to comply with a requirement in securities legislation, it can apply for discretionary relief. The 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:

For multiple jurisdictions: National Policy 11-206 Process for Cease to be a Reporting Issuer Applications
For applications only in Ontario: OSC Staff Notice 12-703 Applications for a Decision that an Issuer is not a Reporting Issuer under Clause 1(10)(b) of Ontario’s Securities Act

Certain provisions of the Business Corporations Act (Ontario) (OBCA) apply to reporting issuers that were incorporated, continued or amalgamated under the OBCA (the OBCA refers to these reporting issuers as “offering corporations”). Subsection 1(6) of the OBCA provides that if an offering corporation no longer wants these provisions to apply to it, it must obtain an order from the OSC deeming it to have ceased to be offering its securities to the public. If an offering corporation requires an order under subsection 1(6) of the OBCA, it must make a separate application to the Commission. For more information on filing this application with the OSC on SEDAR+, please see our Filing Guidance.

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.

Best practices

The following is a summary of certain threshold issues and best practices to consider when submitting an application for exemptive relief. This is not an exhaustive list.

Issue	Best practice
Principal regulator	For passport applications for exemptive relief, confirm the Issuer’s principal regulator prior to submitting the application. The criteria for determining an Issuer’s principal regulator are set out in section 3.6 of NP 11-203. If a passport application is submitted to a regulator that is not the Issuer’s principal regulator, it will be required to be re-submitted to the Issuer’s principal regulator, which will delay the review of the application. Similarly, for dual applications for exemptive relief, confirm the Issuer’s principal regulator prior to submitting the application. Dual applications for exemptive relief must be submitted to the Issuer’s principal regulator and to the OSC.
Requests for confidentiality	A filer requesting that the regulators hold an application and supporting materials in confidence during the application review process should provide a substantive reason for the request in the application. A filer requesting that the regulators hold the application, supporting materials and decision in confidence after the effective date of the decision should describe the request for confidentiality separately in its application and pay any required fee. Staff will generally not recommend that an application, supporting materials and decision be held in confidence beyond completion of the related transaction or beyond 90 days from the date of the decision. Any request for confidentiality should explain why the request is reasonable in the circumstances and not prejudicial to the public interest, and when any decision granting confidentiality could expire. Please see section 5.4 of NP 11-203.
Precedent decisions	An application for exemptive relief should include the name(s) of any precedent decisions granting similar relief. If there are no precedent decisions granting similar relief, the relief may be considered novel and require consultation with the CSA, extending the application review process.
Draft decision document	Filers are reminded to include a draft form of decision with any application for exemptive relief. The draft form of decision should include: (i) a representation that the filer and other relevant party are not in default of securities legislation in any jurisdiction or, if the filer or other relevant party is in default, the nature of the default; and (ii) resale restrictions, if applicable, based on the securities legislation and securities directions of the principal jurisdiction. The draft form of decision should be submitted in an easily editable format (and not, for example, in PDF format) to facilitate Staff’s review.
Application for revocation of a cease trade order – fees	A filer submitting an application for the revocation of a cease trade order will be required to pay all outstanding fees to each CSA regulator in whose jurisdiction the filer is a Reporting Issuer. Outstanding fees generally include, where applicable, all activity and participation fees, and late filing fees. Depending on how long the cease trade order has been in effect, and whether the Reporting Issuer filed documents in a timely manner, the amount of outstanding fees can be considerable. Before submitting an application, the filer should contact each relevant CSA regulator to confirm the fees that will be payable. Late Document Fees for Participation Fee Forms In Ontario, pursuant to former OSC Rule 13-502 Fees, late document filing fees of $100 per day (to a maximum of $5,000 per calendar year) are due for the late filing of participation fee forms that were due before April 3, 2023. However, pursuant to new OSC Rule 13-502 Fees, which came into force on April 3, 2023, late document fees will not be charged for the late filing of participation fee forms due on or after April 2, 2023.

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.