Pre-filing a prospectus with the OSC

A pre-filing interpretation or waiver allows an issuer to consult with OSC staff regarding the interpretation of securities legislation to a specific issue of the proposed offering. We will focus only on the specific issue and will review the full prospectus at the time of the public preliminary prospectus filing. Some of the common issues that have been raised on pre-filings include:

• sufficiency of financial statement disclosure for certain significant acquisitions
• primary business in an initial public offering (IPO), especially when the three-year financial history required for filing the prospectus spans different legal entities
• determining if the acquisition is an asset or a business acquisition
• sufficiency of proceeds, especially concerning the intended use of the funds used from a prospectus

For guidance on seeking a pre-filing interpretation or a waiver, please refer to Part 8 (Pre-filings and Waiver Applications) of National Policy 11-202 Process for Prospectus Reviews in Multiple Jurisdictions.

An issuer may also file a prospectus for a full review on a confidential pre-file basis. Prospectuses filed on a confidential pre-file basis are reviewed by staff with the same level of detail as a publicly filed preliminary prospectus. An issuer should pre-file their prospectus with their principal regulator only.

To use the confidential pre-file process, we expect the terms and conditions of the offering, and any related transactions, to be clearly determined. We also expect that the underwriters would have substantially completed their review of the pre-filed prospectus.

For further guidance, please see the following documents:

• CSA Staff Notice 43-310 Confidential Pre-File Review of Prospectuses (for non-investment fund issuers).
• OSC Staff Notice 51-734 Corporate Finance Branch 2022 Annual Report, pages 43 to 46
• National Policy 11-202 Process for Prospectus Reviews in Multiple Jurisdictions.

For more information on the OSC’s service standard timing to review confidential pre-file prospectuses, see the OSC Service Commitment.

We will consider a pre-file prospectus to be withdrawn and will close the file if issuers are unresponsive (i.e. have not provided a response to OSC comment letters for an extended period of time or have only provided responses to OSC comment letters that are not substantive). For greater certainty, we will consider the pre-file to be withdrawn if there is no response within 90 days of the date we last issued comments. If the pre-file has not been completed within 180 days from the initial pre-filing date, similar to the timing requirements in Item 2.3 of NI 41- 101 General Prospectus Requirements, we will close the file and the issuer will be required to re-submit a new pre-file and pay  the associated fees. In both cases, we will advise counsel that the pre-file will be closed.