Introduction

On June 9, 2022, members of the Canadian Securities Administrators (CSA) published, for a 120-day comment period, a set of regulatory amendments designed to streamline and internationally harmonize over-the-counter (OTC) derivatives data reporting. These amendments are referred to collectively by the CSA as the Proposed Amendments. According to the CSA, the Proposed Amendments are designed to reduce the complexity of market participant’s reporting systems, decrease ongoing operational and compliance costs, and improve the consistency and quality of data available to regulators and the public.

In Alberta (and the other multilateral instrument jurisdictions), the Proposed Amendments take the form of changes to Multilateral Instrument 96-101 Trade Repositories and Derivatives Data Reporting (Trade Reporting Rule), Companion Policy 96-101CP (Trade Reporting CP), and a proposed Multilateral Derivatives Data Technical Manual (Manual) contained in Appendix A of the Trade Reporting CP.¹

The Securities Commissions of Ontario, Manitoba and Québec are each proposing similar changes to their trade reporting and derivatives data regulatory instruments.

The proposed amendments

Changes to the Trade Reporting Rule

In seeking to implement global standards to improve the quality of data and create standardized systems across other jurisdictions where derivatives are traded, the CSA is proposing the implementation of new requirements to improve data quality and reporting, as well as ensure that the changes proposed are consistent with regulatory requirements internationally. Some of these amendments involve updated reporting counterparty obligations, including:

• A general obligation on reporting counterparties to ensure all reported data is accurate, contains no misrepresentations, and satisfies the repository’s validation procedures;
• Reporting counterparties that are derivatives dealers must verify the accuracy of reported data every 30 days;
• A new hierarchy will determine which entity is responsible for generating Unique Transaction Identifiers (UFI);
• Reporting counterparties will be required to identify transactions using Unique Product Identifiers (UPI) assigned by the Derivatives Service Bureau (DSB) who operates the unique product identifier reference data library;
• A reporting counterparty will be permitted to its report netted aggregate position level data as an alternative to reporting lifecycle events separately for each derivative if the derivates meet certain criteria; and
• A reporting counterparty will be required to report collateral and margin data each business day, consistent with new data elements set out in the updated Appendix A, until the transaction is terminated or expires.

Contained in the Proposed Amendments are also two key definitional updates, including that:

• The definition of “affiliated entity” will no longer capture two persons or companies if one of them is an investment fund as defined in NI 81-106; and
• The definition of “derivatives dealer” will now include any person or company required to be registered as such under applicable securities legislation, but importantly, the “business trigger” test will also continue to operate.

Following amendment, the Trade Reporting Rule will also be harmonized with North American and global standards known as the Principles for Financial Market Infrastructures (PFMI principles), developed by the Committee on Payments and Market Infrastructures (CPMI) and the International Organization of Securities Commissions (IOSCO). The various changes to the Trade Reporting Rule in this respect will apply primarily to trade repositories and will seek to update trade governance, risk, and operational requirements.

Finally, the Appendices of the Trade Reporting Rule will also see updates in order to better align them with international regulation:

• Appendix A will be updated to reflect global standards, with changes including the elimination of certain data elements and the revision of others.²
• Appendix B will be updated to reflect current equivalent derivatives trade reporting laws of the EU and UK.
• Appendix C will be updated to allow recognized trade repositories to publicly disseminate certain information as soon as technologically practicable in the event of downtime resulting from testing, maintenance, and upgrades.

Changes to the Trade Reporting CP

In addition to the proposed amendments to the Trade Reporting Rule, the CSA is also proposing three primary amendments to the Trade Reporting CP:

• The addition of the Manual which will provide guidance regarding format and values for reporting and compliance with the Trade Reporting Rule;
• A redraft of the Trade Reporting CP in which the CSA seeks to provide clearer guidance to market participants subject to the Trade Reporting Rule, including in respect to the proposed revision of the definition “derivatives dealer”); and
• Specific guidance related to the application of the PFMI principles.

Effective date

The Proposed Amendments are currently scheduled for implementation in 2024, after the CFTC completes their implementation of similar amendments to harmonize with the global trade reporting standards set by the CPMI-IOSCO Working Group.³

Members of the CSA intend to provide future guidance regarding the period of time where reporting counterparties will be subject to the proposed global standards in some jurisdictions and not others (the Transition Period).

Notes

We invite market participants and other stakeholders to discuss any comments and questions with us, and we are available to provide any assistance you may require in commenting on the Proposed Amendments. Comments must be provided in writing to your applicable securities commission by October 7, 2022.

For more information regarding the CSA’s derivatives regulations and the Proposed Amendments to enhance derivatives data reporting, and how it could impact your derivatives and commodities trading operations, please contact Courtney Burton.

We wish to thank Jack Yuan, summer law student in Calgary, for his assistance with this article.

¹ See https://www.asc.ca/-/media/ASC-Documents-part-1/Regulatory-Instruments/2022/06/6022513-CSA-Notice-of-Amendments-to-MI-96-101.ashx. These Proposed Amendments also affect British Columbia, Saskatchewan, New Brunswick, Nova Scotia, and any other jurisdictions governed by MI 96-101.
² Global standards are set out by the CFTC and in the CDE Technical Guidance published by the CPMI-IOSCO Working Group.
³ CFTC intends to complete their amendments in 2 stages, with the first stage taking effect in December, 2022, and the second stage taking effect in December, 2023.