Take More and Broader Collective Action, Regardless of Constitutional Leanings

Canada has an abundance of agencies responsible for regulating investments. Those agencies co-operate extensively. They work together all the time. Even so, there are important areas in which they don’t co-ordinate as well as they could.

For example, they don’t act in concert to rid the markets of bad people. They also don’t seem to help each other when it comes to getting fines paid. But there’s reason to hope this may change.

Recently, the Alberta Securities Commission announced it will automatically recognize (i.e., enforce in Alberta) most sanctions orders that other Canadian provincial securities commissions make. In effect, a revocation of someone’s registration in, say, British Columbia or Nova Scotia will also immediately revoke that person’s registration in Alberta. Similarly, failure to pay an administrative penalty levied by Quebec or Saskatchewan or any other province will be treated as an act of non-compliance in “Wild Rose Country” as well.

Cynics may say Alberta’s doing this just to demonstrate that a national securities regulator isn’t necessary — that the existing tools of multilateralism are sufficient to get the job done. But even if that’s what Alberta hopes to prove, this initiative should be embraced and adopted by every province and territory regardless of where they stand on the national regulator question.

Why? Because sanction synchronization makes sense. People who pose a danger to the capital markets of one jurisdiction also menace the markets in every other part of the country. Those people shouldn’t be able to just carry on with securities-related business elsewhere in Canada. They’re pariahs, and they should be treated as such nationwide.

But why limit the synchronization to sanctions ordered by other securities commissions? Why not include penalties imposed by Canada’s two self-regulatory organizations (SROs) — the Investment Industry Regulatory Organization of Canada (IIROC) and the Mutual Fund Dealers Association (MFDA)? After all, if someone’s so bad that they’re banned from working at every IIROC or MFDA member firm, surely they should also be banned from securities firms outside the SRO system, such as exempt-market dealers and portfolio managers.

By the same token, why limit synchronization to matters involving securities? Why not include all types of investment products and all financial services? If an advisor can’t be trusted to advise clients properly about stocks and bonds, do we really want to let him or her give advice about insurance-based investment products? Don’t we also want that advisor to be barred from selling a bank’s principal protected notes and guaranteed investment certificates? Or advising about pensions?

In short, if someone lacks integrity, don’t we want the person out of financial services altogether?

Getting such people out requires an integrated system — one designed to shut down all of a miscreant’s registrations across the country when he or she is declared unfit by any financial services regulator anywhere in Canada. We don’t have a system like that right now. In fact, we don’t even have a mechanism to automatically stop dual-licensed individuals from peddling segregated funds when they’re prohibited from selling mutual funds. So we need to fix this.

At the same time, we need to understand that sanction synchronization will only address a relatively easy part of enforcement. The hard part is deterrence — making would-be wrongdoers believe they’ll face painful consequences for acting badly, even if they leave the investment business.

This is why fine collection is so important. Forcing a wrongdoer to pay a fine does more than just punish one bad guy for past transgressions. It’s also a big part of what keeps the next guy from stepping out of line. And that keeps everyone safer.

Of course, making scoundrels pay up is never simple. They transfer or hide assets. Sometimes they try to disappear. Regulators must be sharp-eyed and relentless in pursuit. They also must be nimble, ready and able to help each other trace the movements of scofflaws and their assets around the country.

All this requires that lawmakers equip regulators with an effective collection toolkit. In particular, legislators in each province and territory should grant every financial services regulator, including the SROs, the ability to register and enforce their sanctions orders as judgments of the superior courts. This already exists in Quebec and Alberta, and it helps. Collection rates are higher there.

It will take more than greater integration of securities commissions to fully safeguard Canadian investors. Co-ordinated efforts must include SROs, insurance, banking and pension regulators, and legislators as well. Both conceptually and effectively, we need an upgrade of our whole regulatory system from a patchwork to a network whose components interconnect to achieve the one goal they all share: investor protection.

Alberta’s new initiative is a small but positive step toward that upgrade. Let’s hope it sparks the broader collective action truly needed.

This article appears as an Inside Track op-ed in the online version of Investment Executive.

August 04, 2015