by Raymond McDougall of Stikeman Elliott LLP

In late June, Barkerville Gold Mines Ltd. announced major estimates of resources and “geological potential”. The sizes of the estimates were remarkable – indicated resources of 10.6 million ounces of gold and “geological potential” of 65-90 million ounces of gold. That announcement was followed last week by a Barkerville press release indicating that the British Columbia Securities Commission had reviewed the company’s technical disclosure and draft technical report and expressed concerns with both estimates. In the latter press release, Barkerville cautioned investors against relying on either of the disclosed estimates until the BCSC completed its technical disclosure review.

What strikes me as interesting about this situation is what stands out about the facts and the approach the BCSC is taking here. On the facts, the sizes of the estimates certainly made the original announcement hard to miss. One could also consider whether disclosing “geological potential” is what caught the attention of the regulators. While issuers are permitted to say certain things about the potential of exploration targets, the principle underlying NI 43-101 is that mineral disclosure should be based on various levels of certainty. The further one moves away from certainty, the trickier the disclosure can become and the more limited it arguably should be.

By Patricia Koval, Mile Kurta and Sophia Tolias of Torys LLP

Proxy advisory firms are continuing to make headlines in Canada, the United States and abroad. As shareholder activism increases, the role of proxy advisers, such as Institutional Shareholder Services Inc. (ISS) and Glass Lewis & Co., and their potential influence on the outcome of corporate governance initiatives and M&A transactions have been brought sharply into focus. Earlier this month, Glass Lewis defended itself against allegations of conflicts of interest in respect of its voting recommendations in the Canadian Pacific Railway proxy contest. ISS was also accused of issuing a misleading report on Canadian Pacific. Against the backdrop of heightened criticism of proxy advisers, Canadian securities regulators are now considering whether, and to what extent, the legal regulation of proxy advisers is appropriate.

by Pamela Hughes and Tim Andison of Blake, Cassels & Graydon LLP

The Canadian Securities Administrators (CSA) in each province and territory of Canada – other than Ontario – have adopted Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets (MI 51-105) effective July 31, 2012.

What is an OTC Reporting Issuer under MI 51-105?

Under MI 51-105, an issuer will become an “OTC reporting issuer” fully subject to Canadian public company reporting and other obligations if all of the following conditions apply:

• the issuer does not have any class of securities listed or quoted on the TSX, TSX Venture Exchange, Canadian National Stock Exchange, Alpha Exchange, NYSE, NYSE Amex or NASDAQ;
• the issuer has a class of securities (in practice, limited to equity securities or convertible debt) that has been assigned a ticker symbol by the Financial Industry Regulatory Authority (FINRA), the self-regulatory organization governing U.S. broker-dealers, for use on any U.S. over-the-counter (OTC) market, including any class of securities whose trades have been reported in the grey market; and
• on or after July 31, 2012
  • the issuer’s business has been directed or administered in Canada (other than Ontario), or
  • the issuer, or someone acting on its behalf, has carried on “promotional activities” in or from any province or territory of Canada other than Ontario, including any communications from outside Canada with persons in Canada that promotes, or reasonably could be expected to promote, the purchase or sale of any class of securities of the issuer.