skip to main content





Back to all publications
Oct 26, 2017

TSX, TSX-V and CSA Clarify Their Positions on Listed Entities with Ties to U.S. Marijuana Market

By Richard M. Kimel, Daniel Everall and Tyler Brent

On October 16, 2017, the Toronto Stock Exchange (“TSX”), the TSX Venture Exchange (together with the TSX, the “Exchanges”) and the Canadian Securities Administrators (the “CSA”) released separate guidance clarifying their positions on the regulation of entities with ties to the U.S. marijuana market.

The Exchanges released identical notices confirming that listed entities are not permitted to engage in the U.S. marijuana market. The Exchanges have always required applicants and listed entities to comply with all laws, rules and regulations applicable to their businesses. The Exchanges’ bulletins reminded that, despite the “Cole Memorandum,” marijuana remains a Schedule I drug, prohibited by the U.S. federal Controlled Substances Act. Therefore, entities that cultivate, distribute or possess marijuana in the U.S. (“Subject Entities”) are considered by the Exchanges to be engaging in illegal activity in contravention of the Exchanges’ policies. Further, the Exchanges suggested that financial transactions involving U.S. marijuana businesses may contravene U.S. money laundering rules. Non-compliance with the Exchanges’ requirements could lead to a delisting. Those following the space should not be surprised with this news, given that it is simply a formalization of the Exchanges’ recent informal positions.

The Exchanges also warned that entities that own Subject Entities either directly, indirectly or in substance are considered to be engaged in the business of U.S. marijuana, and therefore at risk of delisting. Similarly, entities that target Subject Entities with their products or services, or have commercial arrangements with such entities, may also be considered to be in breach of the listing requirements.

The Exchanges announced that they expect to complete reviews of all of their listed entities by the end of the year. The Exchanges expect listed entities to take steps to ensure they are in compliance with their rules, meaning that some companies may need to divest certain U.S. interests or transfer their listing to other exchanges.

The Exchanges’ approach comes in contrast to the CSA requirements, which were clarified by Staff Notice 51-352 (the “Staff Notice”). The CSA considers securities regulation to be primarily disclosure-based. Accordingly, the Staff Notice focused on disclosure requirements for listed entities, which require each entity’s disclosure fairly presents all material facts and risks. The Staff Notice emphasized that the CSA’s disclosure-based approach is premised on the entity complying with U.S. laws at the state level.

The CSA recognized that there is uncertainty associated with operating in the U.S. marijuana industry because the federal government’s policy towards non-enforcement of the federal prohibition (i.e. the “Cole Memorandum”) could change at any time. However, the CSA considered this to be largely a business risk, and barring public interest concerns, not a securities law violation provided adequate disclosure is made to investors. Specific disclosure recommendations were included in the Staff Notice as replicated here in Table 1.

Table_Cannabis Newsletter

Cannabis companies applying to be or already listed on the Canadian Securities Exchange (“CSE”) will be relieved by the Staff Notice, as it largely accords with the CSE’s existing position. Consequently, companies with ties to U.S. marijuana can still list publicly in Canada and comply with our securities laws, but should consider friendlier alternatives to the TSX/TSX-V, such as the CSE.

*Tyler Brent is a 2017/2018 articling student at the firm. 

Areas of Expertise

Related Industries

Related Publications

Publications Article
New Ontario Rule Permits Payments to Charity Directors By Jeremy D. Burke Apr 17, 2018 On April 1, 2018, Ontario Regulation 112/18 came into effect amending O. Reg 4/01 (Approved Acts of Executors and Trustees) under the Charities Accounting Act. The Amendment modifies the existing Ontario common law rule that prohibits a charitable corporation from compensating a director (or any ...
Publications Article
Important Changes to the Municipal Elections Act, 1996 By Jody E. Johnson Apr 13, 2018 All across Ontario, municipal elections are just over six months away. On April 1, the most recent amendments that will impact the Municipal Elections Act, 1996 came into force. There are a lot of changes to the rules for this election, but this article discusses some of the most important ones t...
Publications Article
Recent Human Rights Tribunal Decision: Record Damage Award By Meghan A. Cowan Apr 10, 2018 The Human Rights Tribunal of Ontario (the “HRTO”) recently awarded one of its highest damage awards to date. In A.B. v. Joe Singer Shoes Limited, the HRTO awarded $200,000 (plus pre-judgment interest dating back to 2008) to a former retail worker who alleged that she was sexually...