Canada: Flashing Green Ahead: Environmental Reporting In Ontario Securities Law - Continuous Disclosure And OSC Staff Notice 51-716

On February 27, 2008, the Ontario Securities Commission ("OSC") released OSC Staff Notice 51-716 Environmental Reporting ("Staff Notice 51-716") outlining the results of a targeted review of 35 public companies compliance with continuous disclosure requirements related to environmental matters under National Instrument 51-102 Continuous Disclosure Obligations ("NI 51-102").

In Staff Notice 51-716, the OSC considered public companies continuous disclosure obligations related to contingent environmental liabilities, asset retirement obligations, financial and operational effects of environmental protection requirements, environmental policies fundamental to operations, and environmental risks. The OSC concluded that the majority of the public companies reviewed fell short of expectations with respect to environmental disclosure. The OSC intends to continue to monitor environmental matters in continuous disclosure documents, raising the possibility of future enforcement actions.

Public companies should consider the guidance in Staff Notice 51-716 when preparing their financial statements, Managements Discussion and Analysis ("MD&A") and Annual Information Form ("AIF") to ensure that disclosure of environmental matters complies with securities legislation and provides investors with meaningful information for making investment decisions. The OSC provided guidance on each of the following environmental issues as they relate to specific continuous disclosure requirements:

This article highlights the key themes raised by Staff Notice 51-716 as they relate to reporting environmental issues in continuous disclosure obligations.

The Materiality Threshold

Materiality remains the determining factor for including information, including environmental matters, in continuous disclosure documents. Information is likely material if a reasonable investors decision whether or not to buy, sell or hold securities of the public company would likely be influenced or changed if the information was omitted or misstated.

While the materiality threshold has remained the same, the question of what would influence a reasonable investors decision is on the move. Some large pension funds such as OMERS and CPPIB are now factoring environmental, social, and governance ("ESG") considerations into investment decisions. In addition, a small number of ethical funds now explicitly consider ESG issues in making investment decisions. These include funds offered by mainstream investment management groups such as Acuity Investment Management and Phillips Hager & North, as well as specialized ethical investing firms such as Meritas and The Ethical Funds Company.

OSC staff is of the view that public companies should consider both quantitative and qualitative factors in determining materiality generally, and particularly for disclosure relating to environmental matters.

Increased Scrutiny On Environmental Disclosures

Staff Notice 51-716 emphasises that the OSC will continue to scrutinize environmental matters in continuous disclosure documents. Given that the majority of public companies reviewed fell short of expectations, the OSCs discussion in Staff Notice 51-716 provides valuable direction for issuers who want to avoid being the subject of enforcement action in the future. Specifically, the OSC emphasises three common themes related to the inadequacy of current disclosures and the expectation to meet future requirements.

1. Boilerplate Disclosure Is Insufficient.

   Staff Notice 51-716 makes it clear that boilerplate disclosure of environmental issues is insufficient to meet a public companys continuous disclosure requirements. For example, when reporting environmental risks, such as those relating to compliance with environmental laws, the OSC noted that simply disclosing that the company is subject to environmental laws and regulations and that provisions for expenses associated with environmental obligations have been established is insufficient.

2. An Emphasis On Quantification Of Costs.

   OSC staff suggests that public companies should replace boilerplate language with a quantification of the costs associated with environmental issues where quantitative information is reasonably available and would provide meaningful information to investors. This is true even where environmental estimates are "highly uncertain." For example, a discussion of the financial and operational effects of environmental protection requirements should include a quantification of the costs associated with environmental protection requirements and the potential impact of these costs on financial and operational results.

3. An Emphasis On How Environmental Issues Impact On A Public Company.

   Finally, OSC staff places an emphasis on public companies providing an evaluation and description of the impact or potential impact that costs associated with environmental issues may have on the issuers operations. Public companies are now expected to specifically identify how the estimate relates to the company, and a failure to do so is considered insufficient because it does not provide meaningful information to investors.

Flashing Green Ahead?

While management and audit committees should take a closer look at environmental issues in their current disclosure obligations, taking into account Staff Notice 51-716, these obligations are likely to continue to evolve. Public companies should be thinking about more concrete disclosure on carbon footprints and what systems they will need to have in place as the green march continues and more detailed and accurate environmental costing approaches are developed.

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