Canada

On May 21, 2026, the Supreme Court of Canada granted leave to appeal in two cases that, while arising in different contexts, both grapple with a fundamental tension in Canadian law: the boundary between private action and state power, and the consequences when that boundary is blurred. In R. v. Pham, the British Columbia Court of Appeal ordered a new trial after finding the trial judge erred in assessing whether courier company employees became “state agents” when they set aside packages at police request. If parties are found to have been “state agents”, their actions become subject to Charter scrutiny since they essentially acted as an extension of the government. In McCormack v. Evans, the Ontario Court of Appeal upheld the admissibility of wiretap evidence, obtained through police deception, at a civil trial, while dismissing claims against officers for malicious prosecution and related torts. Both cases involve police investigative conduct that blurred proper boundaries, enlisting private actors in Pham and misrepresenting sources in McCormack, and raise questions about how such shortcuts affect evidence admissibility. Both will require the Supreme Court to clarify principles at the intersection of Charter rights, police powers, and the distinct objectives of criminal and civil proceedings. The cases also illustrate the divergent treatment of evidence in criminal versus civil proceedings. In Pham, the issue was whether a s. 8 Charter breach had occurred and whether evidence should be excluded under s. 24(2). In McCormack, the Court emphasized that civil trials are governed by different principles, the “pursuit of truth” is paramount, and Charter-based exclusion operates differently where there is no jeopardy or potential loss of liberty. Together, these cases offer a window into how Canadian courts navigate the competing demands of constitutional compliance, truth-seeking, and fair process across different legal domains. R. v. Pham, 2025 BCCA 324 In May 2019, CBSA officers intercepted two packages containing methamphetamine at the Vancouver International Airport, one bearing the appellant’s fingerprint. The packages had been shipped by a courier company in Nanaimo by someone named William McGuire on behalf of a fictitious company. After the RCMP alerted the courier company employees, Mr. McGuire delivered further packages on May 15, 17, and 23, 2019. The employees processed the packages in accordance with their usual procedure but then set them aside for warrantless seizure by the RCMP. The packages were subsequently searched pursuant to a warrant and found to contain multiple kilograms of methamphetamine. On May 23, the RCMP arrested the appellant. Subsequent searches yielded cash, waybills, phones, fentanyl, cocaine, and firearms. The appellant was convicted of ten offences. The trial judge dismissed his s. 8 Charter challenges and declined to exclude the evidence under s. 24(2). On appeal, Mr. Pham argued, among other grounds, that the trial judge erred in finding the courier company employees did not act as “state agents.” Analysis of the British Columbia Court of Appeal Writing for a unanimous Court, Justice DeWitt-Van Oosten held that the trial judge committed reversible error. The Court confirmed the legal test: whether the impugned conduct “would have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents.” Rather than applying this test, the trial judge asked whether there was anything wrong generally with police “enlisting the assistance of members of the public in the investigation, detection and prevention of crime.” The Court held this was an error of law reviewable on a standard of correctness. The Court also found that the trial judge misapprehended the evidentiary record. The courier company employees testified that the RCMP asked them to notify police if the suspected shipper returned, set aside packages for RCMP retrieval, take photographs, and obtain vehicle licence plate numbers. The employees testified that they took these steps because the police asked them to, that these actions were outside their regular duties, and that, but for the RCMP’s involvement, the packages would have remained in the mail stream. The trial judge’s finding that the employees “were simply going about their normal business” failed to account for this evidence. The Court allowed the appeals and ordered a new trial. On May 21, 2026, the Supreme Court of Canada granted the Crown leave to appeal. The Supreme Court’s consideration of this case may provide further guidance on the test for state agency under s. 8 of the Charter and the circumstances in which police interactions with private actors transform those actors into agents of the state. McCormack v. Evans, 2025 ONCA 767 The appellant, William McCormack, was a plainclothes officer with the Toronto Police Service responsible for Liquor Licence Act enforcement. An organized crime investigation, implicated him in bribery and corruption. The lead investigator, Evans, obtained judicial authorization to intercept the appellant’s private communications based on an affidavit that deliberately misdescribed two individuals as confidential informants (CIs) when they were not. The intercepted communications captured the appellant engaging in highly incriminating conversations about receiving payments and warning bar owners of inspections. The appellant was charged with numerous criminal offences. The corruption charges were stayed for delay under s. 11(b) of the Charter, and the remaining charges were withdrawn by the Crown, who opined that a s. 8 breach would be “inevitable” given the misdescription. The appellant commenced a civil action alleging malicious prosecution, negligent investigation, misfeasance in public office, intentional infliction of emotional distress, and Charter damages. The trial judge dismissed the action, and the appellant appealed. Analysis of the Ontario Court of Appeal On the admissibility of wiretap evidence, the Court held that, absent a judicial determination of invalidity, the wiretap authorization was presumed to be valid. The Crown’s opinion that a s. 8 breach was “inevitable” was a lawyer’s submission, not a judicial finding. Critically, the Court held that even if the evidence would have been excluded at a criminal trial, this would not dictate admissibility in civil proceedings. The Court emphasized that “the analysis of whether or not to exclude evidence for a Charter breach is entirely different in the civil context than in the criminal context.” In criminal proceedings, constitutional principles may override truth-seeking objectives where the state wields coercive power against an individual facing jeopardy and potential loss of liberty. In civil proceedings, the parties do not face such risks. The Charter does not determine admissibility; instead, admissibility is governed by the common law, balancing probative value against prejudicial effect, as informed by Charter values. The Court found the intercepted communications highly probative and their exclusion would have marked “a departure from factual reality, common sense, and the pursuit of justice.” On reasonable and probable grounds, the Court upheld the trial judge’s finding that Evans’ deception did not negate a genuine belief in the appellant’s guilt. The deception related to the status of the sources as confidential informants, not the content of their evidence. The charges were based on the appellant’s own incriminating utterances captured by the wiretap. The Crown’s withdrawal of charges was based on the potential for Charter exclusion, not the unreliability of the investigators’ grounds. The Court dismissed the appellant’s remaining civil claims. Malicious prosecution and negligent investigation failed because the appellant could not establish the absence of reasonable and probable grounds to prosecute him. Misfeasance in public office failed because the respondents were not motivated by animus. Intentional infliction of emotional distress was dismissed because, although Evans’ misdescription was “improper,” the appellant had “not shown that it was calculated to cause harm.” The Charter damages claim failed because the appellant did not establish that the wiretap authorization was invalid. On May 21, 2026, the Supreme Court of Canada granted leave to appeal this decision. The grounds for appeal remain to be seen. Looking ahead: Why these cases matter The simultaneous grants of leave in Pham and McCormack signal the Supreme Court’s interest in clarifying the boundaries of state agency and the consequences of investigative irregularities. While the cases arise in distinct procedural contexts (one criminal, one civil), they share a common thread: police investigative conduct that blurred established boundaries, and the legal implications when that conduct is later scrutinized. In Pham, the Supreme Court will have an opportunity to provide authoritative guidance on the test for state agency under s. 8 of the Charter. The Court of Appeal’s decision reaffirmed the Buhay framework, asking whether the private actor’s conduct would have occurred “in the form and manner in which it did” but for police intervention, while highlighting how easily that test can be misapplied. The Supreme Court’s decision may clarify the threshold at which police requests for assistance transform cooperative citizens into agents of the state. In McCormack, the central issues are the admissibility of evidence obtained through investigative deception and the standard for establishing reasonable and probable grounds. The Court of Appeal held that wiretap evidence remains admissible in civil proceedings, even where the underlying authorization may have been tainted by police misconduct. This reflects a fundamental distinction: in criminal cases, the state wields coercive authority against an individual facing potential loss of liberty, and constitutional rights may override truth-seeking objectives; in civil cases, “pursuit of truth” remains paramount. The Supreme Court’s consideration of this case may further develop the jurisprudence on how Charter values are balanced against truth-seeking objectives outside the criminal context. Together, these cases will shape how police engage with private actors, how courts assess the fruits of those engagements, and how the constitutional protections against unreasonable search and seizure apply across different legal contexts. Practitioners in both criminal and civil litigation should watch these appeals closely.

The British Columbia Court of Appeal has unequivocally held that a third party notice must be filed before the expiry of the limitation period for claim for contribution or indemnity, or else it will be set aside as being barred under the Limitation Act, regardless of when the application for leave to file a third party notice is filed. On May 22, 2026, in Oldcastle Building Products Canada Inc. v. Division 8 Consulting Corp., 2026 BCCA 223, the Court of Appeal upheld the chamber judge’s decision to set aside a third-party notice for a claim for contribution or indemnity because it was filed after the expiry of the limitation period, even though the application for leave to file was filed months before the limitation period expired. The Limitation Act, S.B.C. 2012, c. 13, treats contribution and indemnity claims differently than other third-party claims. While s. 22(1) allows third-party proceedings for a related claim to be brought in an ongoing court proceeding after the expiry of a limitation period, s. 22(2) specifically sets out that nothing in s. 22(1) gives a person a right to “commence a court proceeding” by bringing a third-party proceeding in relation to a claim for contribution or indemnity after expiry of the applicable limitation period. In this case, the application for leave to file a third-party notice (Application) was filed before the limitation period had expired; however, the third-party notice itself was filed after the limitation period had expired. As s. 22(2) does not permit a person to “commence a court proceeding” for a claim for contribution or indemnity after the expiry of the limitation period, the pertinent issue before the Court was when the third-party claim for contribution or indemnity was commenced. If it was upon filing the Application, then the claim was not statute barred, but if was upon filing the third-party notice, then it was. The Court of Appeal held that both the jurisprudence and the modern principle of statutory interpretation, which requires a contextual and purposive approach, supported the interpretation of “to commence a court proceeding” as being the filing of the third-party notice. Essentially, a third-party claim is considered a court proceeding, and a third-party notice commences the court proceeding. This interpretation was found to be consistent with the whole Limitation Act, and the definition of “originating pleading” in Rule 1-1 in the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]. The Court of Appeal determined that the purpose behind treating claims for contribution or indemnity in the Limitation Act differently than other third-party claims is to ensure that a defendant address claims for contribution or indemnity early in the litigation. For this reason, s. 16 of the Limitation Act sets one of the dates that a claim for contribution or indemnity is considered to be discovered as the date one is served with a pleading in respect of a claim on which the claim for contribution or indemnity is based. If filing an Application was sufficient to avoid the consequence of s. 22(2), then a party could take as long as it wished to file the third-party notice, which would not achieve the end of addressing claims for contribution or indemnity early in the litigation. Based on these reasons, which were supported by the jurisprudence, the Court of Appeal upheld the chamber judge’s decision, and unequivocally held that a third-party notice for claim for contribution or indemnity must be filed before the expiry of the limitation period, or else it will be set aside as being barred under the Limitation Act.   We note that from the above, there are two important practice points: The version of the Rules in this case provided for a third party notice to be filed as a right within 42 days of being served with a notice of civil claim or counterclaim, which would be within the two-year limitation period set out in the Limitation Act. However, the current version of the Rules, has changed and provides for a third-party notice to be filed as a right within 42 days after the filing of the response, which, depending on when a response is filed, could be after the limitation period expires. While the Rules may now allow the filing of the third-party notice after the limitation period, it is unlikely that the Rules will be considered to override the limitation period and other provisions set out in the Limitation Act.Therefore, a third-party notice should be filed before the expiry of the limitation period, regardless of whether it is permitted to be filed later under the Rules. While the Rules may effectively permit the filing of a third-party notice after expiry of the limitation period, the third-party notice may still be set aside, as is what occurred in this case. In this case, there was no dispute that the third-party notice was permitted to be filed, as it was filed in accordance with an order after application, but as it was filed after the limitation period, it was set aside.   If there is a risk that a third-party notice for a claim for contribution or indemnity cannot be filed before the limitation period expires because, for example, leave of the court is required, then a notice of civil claim seeking contribution or indemnity in a separate action can be filed before the limitation period expires. As set out in this case by the Court of Appeal, to avoid a multiplicity of proceedings, if the third-party notice is ultimately filed in time then the separate action can be discontinued, or an order can be obtained to have the two actions heard together.Therefore, the most important thing about a claim for contribution or indemnity is to file the originating pleading before the expiry of the limitation period.

On May 14, 2026, the Canadian Securities Administrators (CSA) released a comprehensive package of proposed amendments and accompanying policy changes targeting the issuer bid, take-over bid, and early warning reporting regimes under Canadian securities law (Proposed Amendments). The proposals span amendments to National Instrument 62-104 Take-Over Bids and Issuer Bids (NI 62-104), National Instrument 62-103 The Early Warning System and Related Take-Over Bid and Insider Reporting Issues (NI 62-103), National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102), and related companion policies, National Policies, and consequential instruments. Stakeholder comments are invited until August 12, 2026. The Proposed Amendments touch nearly every corner of the bid and beneficial ownership reporting landscape. In the CSA’s words, the objectives are to “provide issuers with greater flexibility to repurchase their own securities, enhance transparency of ownership of derivative interests in specified circumstances, and reduce regulatory burden”. The Proposed Amendments are relevant to public companies, private companies, institutional investors, and parties engaged in take-over bids, issuer bids, and proxy solicitations. This article sets out the principal elements of the proposals and offers initial observations for market participants.   A new private repurchase tool for issuers: The selective repurchase exemption At present, Canadian securities law does not provide a “private agreement” exemption from the issuer bid requirements, a notable gap vis-à-vis the take-over bid regime, which permits purchases from a limited number of sellers under section 4.2 of NI 62-104. The CSA has long received representations that this restriction places Canadian issuers at a competitive disadvantage relative to the United States, where selective repurchases are generally permissible, and that it can lead to potential market dispositions by blockholders, creating downward pricing pressure on the affected securities. In an attempt to address this gap, the CSA has proposed a new Selective Repurchase Exemption (SRE) permitting issuers to buy back securities outside the formal issuer bid framework, subject to a set of carefully calibrated conditions: Repurchase limit. The issuer may acquire no more than 5% of the outstanding securities of the relevant class in any 12-month period. Counterparty and transaction limits. Purchases may be made from a maximum of five persons in no more than five transactions during any 12-month period. Discount and timing requirements. The value of consideration paid, inclusive of any brokerage fees and commissions, must be less than the closing price of the class on its principal trading market on the date of the bid. In addition, the bid must be made outside of regular trading hours of that market. Liquid market. A liquid market, determined in accordance with criteria derived from section 1.2 of MI 61-101, must exist for the class at the date of the bid. The CSA estimates that approximately 75% of TSX-listed issuers, but fewer than 10% of those on the TSX Venture Exchange, would satisfy this standard. Board determinations. The issuer’s board must conclude that the repurchase would not reasonably be expected to make the market for the class materially less liquid, or to have a significant negative effect on the market price or value of the securities. Disclosure requirements. The issuer must issue and file a news release after making the bid and before the opening of trading on the next trading day, disclosing the name of the selling securityholder, the number of securities acquired, the value of the consideration paid per security and in total, the market price of the security at the date of the bid and the aggregate number of securities acquired by the issuer in reliance on the SRE within the preceding 12-month period. No material undisclosed information. Neither the issuer nor (to the issuer’s knowledge after reasonable inquiry) the selling securityholder has knowledge of any undisclosed material facts or material changes concerning the issuer or its securities at the date of the bid. Importantly, securities acquired under the SRE will not count towards the limits available under the normal course issuer bid (NCIB) exemption or the employee, officer, director, and consultant exemption, meaning that, in the aggregate, an issuer could potentially repurchase up to 20% of securities of a class in a 12-month period through a combination of these exemptions. The CSA has indicated it will engage with the designated exchanges on potential corresponding amendments to their rules or guidance.   Increased transparency of equity equivalent derivative positions in specified circumstances The second major pillar of the Proposed Amendments addresses the use and disclosure of equity equivalent derivatives during take-over bids and contested proxy solicitations for which an information circular is required to be sent. Generally, equity equivalent derivatives do not have to be counted for the purposes of determining whether an investor has triggered early warning reporting obligations, unless the investor can obtain the voting or equity securities or direct the voting of securities held by derivative counterparties. The CSA recognized that insiders of reporting issuers are already required to disclose their aggregate economic positions through insider reporting obligations, yet there is no express comparable requirement for bidders or soliciting securityholders who are not insiders to disclose their aggregate economic positions in an information circular or otherwise. The result is that, at the commencement of a take-over bid or contested proxy solicitation, the bidder or soliciting securityholder may be the only party aware of the existence, terms, and duration of its derivative arrangements, which gap the CSA views as undermining the quality of information available to securityholders who are being asked to make tendering or voting decisions. Notwithstanding this concern, the CSA has opted against requiring aggregation of beneficial ownership and derivative interests for general early-warning threshold purposes, concluding that there is insufficient evidence of misuse in Canadian markets with any regularity and that full aggregation could impose disproportionate burdens relative to potential concerns. Instead, the proposed new disclosure requirements would apply only in the context of a formal bid or contested proxy solicitation – what the CSA describes as “a formal, public overture for control”. The newly defined concept of “equity equivalent derivative” captures derivatives, whether individually or in combination, that provide economic exposure substantially equivalent to beneficial ownership. The CSA’s proposed guidance in NP 62-203 indicates that a rate of return between 90% and 110% of the reference security would generally meet this standard. A cash-settled equity total return swap or substantially similar derivative would be captured by the proposed definition of “equity equivalent derivative”.   For bidders Take-over bid circulars would be required to include prescribed disclosure of interests in equity equivalent derivatives and related arrangements affecting economic exposure to the target, with a six-month look-back period, in order to provide enhanced transparency of trading activities that may have impacted the price of the offeree issuer’s securities in the period preceding a bid. Offerors would also be required to issue a news release before the opening of trading on the next business day if, during the currency of a bid, they acquire or dispose of such interests or enter into, amend, or terminate related arrangements. A notable feature is the requirement to describe any past or present relationships between the offeror (and its joint actors) and counterparties (or their affiliates) that, to a reasonable person, could be perceived to affect the counterparty's investment or voting decisions, or, if no such relationship exists, to include a statement to that effect. Relationships that terminated more than 24 months before the bid was commenced would generally not require disclosure. For soliciting securityholders New deeming provisions would treat reference securities underlying equity equivalent derivatives as being controlled by a soliciting securityholder for the purposes of sections 5.2 and 5.4 of NI 62-104 during a proxy solicitation campaign, so that changes in a soliciting securityholder's aggregate economic position, whether arising from beneficial ownership of securities or from economic interests in equity equivalent derivatives, are disclosed through the early warning system following the filing of its proxy circular, where its aggregate economic position is equivalent to beneficial ownership of 10% or more of the outstanding securities of the class. Amendments to NI 51-102 would also extend a more limited disclosure obligation to persons soliciting proxies in reliance on the public broadcast, speech, or publication exemption. In addition, new information circular disclosure requirements would apply to solicitations made other than by management, requiring prescribed disclosure of (i) beneficial ownership of, or control or direction over, voting securities, (ii) interests in related financial instruments (including equity equivalent derivatives), and (iii) other agreements or arrangements affecting such persons’ economic exposure to the company.   Guidance on disclosure and use of derivatives The CSA has also proposed guidance which indicates that the disclosure or use of equity equivalent derivatives in a manner that is abusive of the capital markets may engage the regulators’ public interest jurisdiction. For example, public interest concerns may arise where public disclosures do not clearly differentiate between beneficial ownership and economic interests, or express them as an aggregated interest, or where a holder accumulates substantial derivative positions and seeks to influence a counterparty's handling of reference securities by communicating expectations of commercial incentives or disincentives tied to a take-over bid or matter subject to securityholder approval.   Sharpening the early warning reporting regime Plans and future intentions The CSA has observed a pattern of acquirors relying on broad, boilerplate language in their early warning reports, potentially allowing them to avoid filing updates when their intentions evolve or they take concrete steps toward a transaction, and only file updated reports upon entering into a definitive agreement in respect of securities. Proposed guidance in section 3.3 of NP 62-203 would clarify that acquirors must reassess the accuracy of their plans-and-future-intentions disclosure each time a reporting obligation is triggered, and must update that disclosure as soon as a change in plans or future intentions occurs, or where irrevocable steps have been taken in connection with a transaction, notwithstanding existing boilerplate reservations. New deemed acquisition triggers The Proposed Amendments include two targeted changes to the early warning system designed to close gaps in existing reporting obligations: Securities held by any person who beneficially owns or controls 10% or more of the outstanding voting or equity securities of a class at the time an issuer becomes a reporting issuer would be deemed to have been acquired at that time, thereby triggering an early warning report filing requirement. However, the associated news release and moratorium requirements would not apply in these circumstances. The establishment (or cessation) of a joint actor relationship would trigger the early warning filing obligation, without any requirement for a concurrent acquisition or disposition of securities. However, the CSA clarifies that the crystallization of a joint actor relationship would not, in itself, constitute a take-over bid in the absence of a subsequent acquisition by one or more of the joint actors. Subsequent filing triggers and AMR clarifications The Proposed Amendments introduce the defined term “securityholding percentage” and clarify the prior language that the trigger for filing a subsequent early warning report is a 2% or greater change in the acquiror’s post-event ownership, measured against the percentage reported in its most recently filed report. For eligible institutional investors (EIIs) filing under the alternative monthly reporting (AMR) system, the threshold is confirmed as based on fixed 2.5% increments starting at 10% (i.e., 12.5%, 15%, 17.5%, and so forth). EIIs that have been disqualified from the AMR system (for example, in connection with a formal bid, business combination, or proxy solicitation) would be permitted to re-enter the system once the disqualifying circumstances have ended, subject to the issuance of a news release and the filing of a report. EWR threshold calculations Proposed guidance has been included, along with illustrative examples, for determining whether the early warning requirements have been triggered. The guidance specifically addresses the treatment of convertible securities that are not exercisable within 60 days, and confirms that beneficial ownership may be calculated on a fully diluted basis in limited circumstances, such as subscription receipt offerings or fully backstopped rights offerings.   Codifying common discretionary exemptive relief and amending exemptions The CSA proposes to codify several forms of discretionary exemptive relief that have become routine in practice, while simultaneously removing an exemption which lacks a compelling policy basis to retain. Elimination of the 5% market purchase exemption The exemption currently allowing offerors to make market purchases of up to 5% of the outstanding securities of a class during a pending take-over bid would be repealed. The CSA notes that the exemption was relied upon in only a single disclosed instance between January 2021 and December 2023, and expresses concern that it could be used tactically to frustrate an open take-over bid process, particularly given the 50% minimum tender requirement adopted in 2016. Modified Dutch auction issuer bids Exemptive relief from the extension take-up requirement under subsection 2.32(4) of NI 62-104, which has been routinely granted to accommodate the mechanics of modified Dutch auction issuer bids, would be codified, subject to safeguards protecting securityholders where the bid is not undersubscribed, or the market price exceeds the highest price offered. Proportionate tenders Discretionary relief from the proportionate take-up requirement, previously granted only in the Dutch auction context, would be codified and extended to issuer bids generally, allowing securityholders to elect to tender a number of securities that preserves their pro rata interest following completion of a bid. Non-reporting issuer exemptions The categories of persons excluded from the 50-securityholder threshold under the non-reporting issuer exemptions for both take-over bids and issuer bids would be expanded to include officers, directors, consultants, and their spouses where the relevant person has control or direction over the securities that are beneficially owned by the spouse. The Proposed Amendments would codify positions previously taken in frequent individual exemptive relief decisions. Convertible securities Issuers conducting issuer bids would be permitted to acquire securities convertible into the class subject to the bid in reliance on the exemptions in paragraph 4.6(a), (b) or (c) of NI 62-104 (certain repurchase or redemption exemptions).   Settlement timing Currently, the settlement period for securities trades in Canada is a T+1 settlement cycle. The settlement cycle and take-over bid and issuer bid tendering process payment periods historically have not been linked, as it generally takes up to three days for an offeror’s designated depositary to coordinate payment to registered holders whose securities are taken up after it receives the necessary funds from the offeror. Under the Proposed Amendments, the existing three-business-day payment window following take-up would be replaced with a general requirement to pay “promptly,” accompanied by guidance that one business day from take-up is the expected standard in a T+1 settlement environment.   What this means for market participants The Proposed Amendments, if adopted in their current form, would represent a meaningful overhaul of the regulatory framework for certain Canadian capital markets transactions. Taken together, they pair expanded flexibility for issuers and investors, most notably through the SRE and the codification of previously ad hoc exemptive relief, with heightened transparency obligations at key junctures. The new derivative disclosure and counterparty identification requirements, coupled with the tightened expectations around plans-and-future-intentions reporting, materially raise the bar for the specificity expected in early warning filings. At the same time, the CSA’s decision not to require full aggregation of derivative and beneficial ownership positions for general early warning purposes, while simultaneously introducing deeming provisions that treat derivative positions as owned securities during proxy solicitations, creates a nuanced and context-dependent regime that will require careful navigation. The cumulative effect of the Selective Repurchase Exemption, along with the existing NCIB exemption and the employee/officer/director/consultant exemption, which could in theory permit an issuer to repurchase up to 20% of a class in a single 12-month period (assuming, in the case of the NCIB, that the public float equals the total issued and outstanding securities), is also likely to attract market attention and may itself become a focal point of the comment process. The CSA has posed 22 specific questions alongside the Proposed Amendments. Market participants with a stake in these issues are well advised to engage with the consultation process before the August 12, 2026, deadline.   Please contact a member of our Capital Markets group for further guidance on how the Proposed Amendments may affect your specific circumstances. The foregoing is for general information purposes only and does not constitute legal advice.     Written by:Sydney KertDerrick AuchRobbie GrossmanCatherine Kay

The Hong Kong Stock Exchange (HKEX) has re-emerged as a leading global IPO venue, offering Canadian companies, particularly those in the technology, industrial, mining, and consumer sectors, a compelling opportunity to access a broader pool of Chinese and Asian institutional and retail capital. Whether as a dual listing alongside the TSX or as a primary listing, HKEX offers meaningful liquidity, strong aftermarket support, and a regulatory framework that is increasingly accommodating to international issuers. This note summarizes key developments in Hong Kong capital markets in 2025 and outlines why Canadian boards and management teams should consider the HKEX as part of their broader capital markets strategy.   Hong Kong’s record-breaking numbers in 2025 HKEX was the top global IPO venue in 2025, raising approximately US$37.4 billion in IPO proceeds across 115 IPOs, including eight transactions exceeding US$1 billion, which included two of the five largest IPOs globally. The HKEX ranked as the third-largest market for equity fundraising in 2025, with 570 transactions raising approximately US$103.4 billion, behind only NASDAQ and the NYSE. The HKEX was also the second most active market for follow-on offerings, where listed companies raised approximately US$66.0 billion through secondary share sales.   Strong IPO aftermarket One of the most notable features of the Hong Kong market in 2025 was the strength of the IPO aftermarket. The average share price performance of Hong Kong IPOs (with deal sizes of US$500 million or above) significantly outperformed equivalent IPOs on US, European, and broader Asia-Pacific exchanges (Bloomberg). Hong Kong IPOs delivered an average return of approximately 32.2% from IPO to current price compared to 20.5% for the broader Asia-Pacific region (excluding Hong Kong and Chinese Mainland), 13.0% for Europe, and 10.2% for the United States (Bloomberg).   Sectors aligned with Canadian issuers HKEX’s 2025 pipeline was concentrated in sectors that closely align with the strengths of many Canadian issuers, particularly energy, mining, and technology. Metals and mining were one of the most active sectors on the HKEX in 2025, driven by strong Asian institutional investor demand for precious metals, battery materials, and critical minerals linked to electrification. The exchange hosted the largest mining IPO since 2012, which raised $3.7 billion for a Chinese gold producer with principal mining assets across Central Asia and Africa. The Hong Kong retail tranche of this IPO was reportedly more than 240 times oversubscribed, while institutional demand exceeded 20 times the shares available, highlighting strong investor appetite for mining companies on the HKEX. For Canadian mining issuers, particularly those with producing assets, offtake counterparties, or strategic investors in Asia, HKEX provides the opportunity to diversify their shareholder base. A HKEX listing may also enhance visibility with Chinese and Asian investors for potential M&A, strategic investments, and joint ventures at a time when global competition for critical minerals and supply chain security has intensified. Industrials and energy accounted for approximately 38% of HKEX IPO volume in 2025, making it the largest sector on the exchange by issuance volume. This included two of the largest industrial IPOs globally in 2025, which raised US$2.0 billion and US$1.4 billion, respectively (Dealogic and Bloomberg). This signals investor demand for capital-intensive and infrastructure-oriented businesses, sectors that are well represented on the TSX. Consumer HKEX was the leading global market for consumer-sector IPOs in 2025, raising approximately US$4.9 billion in IPO proceeds. For Canadian consumer brands, particularly those with existing operations, distribution networks, or brand presence in Asia, HKEX provides access to a large and active retail investor base with an appetite for consumer brands, while also serving as a platform for enhanced brand visibility and supporting regional growth initiatives across Asia. Technology, media, and telecommunications (TMT) represented approximately 21% of 2025 IPO volume, with an additional pipeline of approximately 114 TMT companies and 32 biotech companies. For Canadian technology and life science companies, particularly those with commercial partnerships, manufacturing relationships, and growth strategies tied to Asia, the HKEX could be an ideal listing platform for raising growth capital. In addition, for life science companies specifically, a HKEX listing may also provide greater proximity to the Chinese pharmaceutical market, one of the world’s largest and fastest-growing healthcare markets, as well as increased visibility with Asian healthcare investors, strategic partners, and commercial partners. The launch of the Technology Enterprises Channel (TECH) in 2025, a joint initiative by the Securities and Futures Commission (SFC) and HKEX, is aimed at specialist technology and biotech companies seeking a listing under Chapters 18A and 18C of the listing rules. The initiative introduces a streamlined listing process, including dedicated regulatory review teams, confidential filing options, and simplified requirements for qualifying innovation companies (HKEX and SFC).   International issuers Hong Kong is no longer a market focused exclusively on Greater China issuers. Seven international issuer IPOs were completed in 2025, representing companies domiciled in Indonesia, Singapore, Thailand, Kazakhstan, the UAE, and the United States. These international listings cover a range of sectors, including mining, biotech, consumer goods, and healthcare, and have delivered strong aftermarket performance. HKEX also expanded its international connectivity and issuer reach. In 2025, HKEX added the Stock Exchange of Thailand as a Recognised Stock Exchange, signed an MOU with the Abu Dhabi Securities Exchange, and opened its Middle East office in Riyadh (HKEK). The exchange now has 20 recognised stock exchanges, 33 reviewed overseas jurisdictions, and six overseas offices. For Canadian issuers, this trend is relevant given the established regulatory co-operation and listing recognition framework between Canada and Hong Kong. Canada is a recognized acceptable jurisdiction under HKEX’s overseas issuer regime, and issuers listed on the TSX and TSXV may leverage their existing Canadian corporate governance, continuous disclosure, and securities law compliance framework when pursuing a Hong Kong listing. This recognition framework has historically been important for Canadian issuers seeking access to Asian capital, particularly where there is a strong nexus to Asia through assets, operations, strategic investors, or end-market demand. In practice, the protocol and regulatory co-operation between Canadian securities regulators and HKEX have helped streamline the listing process for eligible Canadian issuers by reducing duplication in certain disclosure and governance requirements and providing greater familiarity to Hong Kong regulators and investors with Canadian reporting standards. For Canadian companies with international growth ambitions, this framework continues to position HKEX as a credible secondary or dual-listing venue alongside an existing Canadian listing.   Institutional and retail depth The depth of investor participation on HKEX is a key differentiator. Over 270 investors across multiple categories participated as cornerstone investors in Hong Kong IPOs in 2025, with 40 IPOs, including international cornerstone investors (HKEX, Bloomberg, and Dealogic). Approximately 50% of the most active investors were international participants, which included Asian and Middle Eastern sovereign wealth funds that have been among the most active investors in HKEX IPOs. Retail investor participation in Hong Kong IPOs has remained exceptionally strong. For the IPOs completed in 2025, average retail subscription levels reached approximately 1,514 times, with aggregate retail demand totalling approximately US$2.1 billion (HKEX and Dealogic). This depth of retail participation provides important support for IPO execution, valuation, and secondary market liquidity.   Access to Mainland Chinese capital through Stock Connect One of HKEX’s key advantages is its connectivity to Mainland Chinese investors through the Stock Connect program. Eligible Hong Kong-listed companies can be traded directly by investors in Mainland China through the Shanghai and Shenzhen exchanges, providing access to one of the world’s largest pools of retail and institutional capital. For Canadian issuers, potential inclusion in Stock Connect can materially expand the investor base, enhance trading liquidity, and increase visibility with Asian investors.   Post-IPO capital raising and an active follow-on market One of the more attractive features of the Hong Kong market is the depth of its post-IPO follow-on financing market. Of the 41 IPO issuers since 2024, with deal sizes above US$100 million, approximately 37% completed follow-on offerings after listing with several issuers raising more capital in subsequent financings than in their IPOs (HKEX, Bloomberg, and Dealogic). On average, issuers accessed the follow-on market approximately eight months after listing, shortly after the expiry of IPO lock-up periods. For issuers, this demonstrates that a Hong Kong listing can serve not only as an initial capital raise, but also as an established platform for future follow-on and secondary fundraising.   Recent regulatory reforms HKEX has undertaken a series of significant regulatory reforms that enhance the attractiveness of the market for prospective issuers: IPO price discovery and retail allocation: Following a consultation process that concluded in early 2025, HKEX has implemented reforms to the IPO pricing and allocation mechanism, including a requirement that at least 40% of shares be allocated to the bookbuilding tranche and a new option for issuers to adopt a fixed retail allocation ranging from 10% to 60% (HKEX Consultation Conclusions). Revised public float requirements: HKEX has introduced a tiered public float threshold based on expected market value at listing: 25% for issuers with market capitalisation up to HK$6 billion; the higher of 15% or HK$1.5 billion for market capitalisations between HK$6 billion and HK$30 billion; and the higher of 10% or HK$4.5 billion for market capitalizations exceeding HK$30 billion. This tiered approach provides significantly greater flexibility for larger issuers. A new free float requirement of at least 10% (with a market value of the free float portion of at least HK$50 million) has also been introduced. Alternative fund listing: In February 2025, the SFC issued a circular clarifying the regulatory requirements for authorizing closed-ended alternative funds for listing under Chapter 20 of the Main Board Listing Rules, effectively creating a new listing category. Confidential filing: Following the launch of the TECH in May 2025, Chapter 18A (Biotech) and Chapter 18C (Specialist Technology) issuers may now submit application proofs on a confidential basis, reducing premature disclosure of proprietary technologies and business strategies during the pre-listing process.   Renewed China and Canada engagement The recent stabilization in diplomatic and trade relations between Canada and the People’s Republic of China may create a more constructive environment for renewed cross-border investment activity, particularly through the HKEX. As relations between the two countries continue to improve, companies with both Canadian and Chinese ownership may have greater opportunities to pursue listings on the HKEX. Historically, a number of Canadian companies, particularly in the mining, energy, and financial services sectors, have successfully completed listings on the HKEX. These transactions demonstrated Hong Kong’s role as an effective gateway for Canadian issuers seeking access to Asian capital, particularly where there is a meaningful China or broader Asia-related business nexus. The precedent established by these listings may serve as a useful framework for renewed Canada–China cross-border investment and capital markets activity as bilateral relations continue to improve. From a broader investment perspective, improving geopolitical relations may also lead to a more balanced regulatory approach toward minority Chinese investments in Canadian businesses, including in sectors that have previously faced scrutiny under the Investment Canada Act and on the basis of national security considerations. While careful structuring will remain important, current conditions suggest a more favourable environment for Canadian and Chinese companies to pursue joint investment opportunities across capital markets, technology, industry, and natural resources.   Key considerations for Canadian issuers Several factors make this an attractive time for Canadian issuers to consider a Hong Kong listing. Most notably, HKEX provides access to a deep and increasingly international pool of capital tied to Asia’s long-term economic growth, including investors focused on China, Southeast Asia, and the broader Indo-Pacific region. For Canadian issuers, this can provide exposure to sources of institutional, sovereign, and strategic capital that are less accessible through traditional North American markets. The alignment between Canada’s strengths in mining, technology, energy, and industrial sectors and the sectors currently attracting capital on HKEX is also significant, particularly for companies with operations, customers, supply chains, or growth ambitions in Asia. In addition, recent regulatory reforms, including more flexible listing requirements and streamlined processes for technology and biotech companies, should improve market accessibility for international issuers. With a strong IPO pipeline and continued investor demand supporting new issuance activity, HKEX remains well-positioned as a complementary capital markets pathway for Canadian companies seeking broader international investor access and diversification beyond North America.   DLA Piper and next steps DLA Piper’s global platform, with offices in Canada, Hong Kong, and across Asia (including Mainland China), is uniquely positioned to advise Canadian issuers on cross-border listing transactions. Our capital markets team has experience in structuring and executing dual listings for Canadian and international issuers, navigating HKEX’s regulatory framework, and coordinating with underwriters in Hong Kong. We would be pleased to discuss how a Hong Kong listing could fit within your broader capital markets strategy.   For further information, please contact Raj Dewan or Stephen Wortley.   Authors:Rajeev (Raj) DewanStephen Wortley