Sunday, May 30, 2010

(No.95) A national securities regulator? Maybe not

Federal Finance Minister Flaherty (a former Ontario treasurer) has announced Ottawa's intention to introduce legislation to create a national securities regulator, the long desired (by Ottawa) securities czar favoured by Ontario but opposed by several provinces and still strongly opposed by Alberta and Quebec.

Flaherty has wisely decided to first seek an opinion from the Supreme Court about whether or not the federal government has the authority under the constitution to undertake this change -- even with the current proposal allowing provinces to opt out. Why wisely? Because it is far from certain that the Supreme Court will validate the feds' approach in terms of pushing aside the provinces in the securities field.

The Globe and Mail's Report on Business approached the subject (May 27) with its usual pro-federal, breathless business angle declaring that "most legal experts believe the country's highest court will approve Ottawa's request." Perhaps these include the same 'legal experts' who were sure that the banks' challenge to provincial insurance jurisdiction was bound to succeed once it landed before the Supreme Court. A Globe editorial (May 28) considered whether the proposed federal Securities Act would be found to be acceptable by the Supreme Court and, of course, decided that "probably it will say it is". But then the Globe's editorial logic is not always water tight.

I argued for many years in articles, editorials, speeches, life insurance industry committees and internal company memoranda that if the insurance jurisdiction of the provinces over agency matters was challenged by the feds or by the federally regulated banks as it related to their insurance activities as banks that the Supreme Court would side with the provinces as had been the case with the House of Lords decision which had forced Ottawa to come up with the federal insurance legislation of 1932. [I have written extensively on various aspects of "banks and insurance" in columns posted to in the past year plus.]

I confess that I longed for the big banks to indulge their happy combination of arrogance and ignorance and challenge provincial insurance jurisdiction vis-a-vis bank insurance activity. They did so in BC but in a case which did not rally focus on the core jurisdictional/regulatory issue -- and won. Then, bless their high-priced 'legal experts', the big banks made the fundamental error (in an Alberta case) I had awaited for years involving a clear cut question of provincial insurance jurisdiction: the Canadian Western Bank v. Alberta. Much to the surprise of many pro-federal power and pro-bank 'experts' the 2007 decision of the Supreme Court was a victory for the provinces.

Mr. Flaherty at least has apparently noted the provinces' jurisdictional victory in the Alberta case and is seeking a Supreme Court opinion on the securities issue. In this he is being opposed by none other than Alberta and by Quebec. It's all very well for the federal spin in this matter to rabbit on ond on about how Canada, today's model for the western world on how to operate a financial system safely, needs to complete this state of regulatory perfection with a national securities regulator. It is an appealing political argument in some quarters but ignores certain realities involving provincial powers already so recently decided by the Supreme Court of Canada (SCC) in the Western Bank (CWB) case.

Here are, for example, two excerpts from the 2007 SCC decision which are relevant to federal legislation governing securities as financial services or an activity (as distinct from the structure of a federal securities commission):

1. The SCC decision said that CWB " cannot plausibly argue that the banks are immune from provincial laws of general application in relation to any financial service, as this would not only render inapplicable elements of the Insurance Act but potentially render inapplicable provincial laws relating to mortgages, securities and many other services as well". [paragraph 65]

2. The SCC made it clear that "banks are not exempt from provincial law ... it was held by the Quebec Superior Court that a bank is subject to provincial securities laws. Accordingly, the mere fact that the banks now participate in the promotion of insurance does not change the essential nature of the insurance activity, which remains a matter generally falling within provincial jurisdiction". [paragraph 81]

In the absence of provincial securities legislation, the federal government may have a case. However, if the federal securities law or related regulation proposed by Minister Flaherty is made applicable to the segregated fund contracts of insurers governed by existing provincial insurance laws (provided the guarantee in the seg fund policy is 75% or more) then the provinces have a strong case. [Doubtless the bank-owned life insurance companies will want seg funds to be overseen by a federal securities regulator.]

If those provinces opting for a federal/national securities regulator wanted to continue to have securities authority over individual segregated fund annuity policies with a guarantee less tha 75% or over group seg fund contracts, they would need a provincial securities law. Conquently there would not be an absence of provincial securities legislation in these provinces. In such circumstances the federal government's case would be extremely weak. The same would be true if provincial securities legislation were kept for the licensing of securities representatives at the provincial level.

While I do not have quite the same strength of opinion in this federal vs provincial securities matter as I did with the issue of provincial jurisdiction involving insurance decided in the Western bank case, I think it would be unwise to bet the ranch on a federal victory in the reference to the Supreme Court. Indeed I would go further: an SCC endorsement of Ottawa's view of the creation of a national securities regulator vis-a-vis provincial government authority is very, very far from a dead bang certainty.

And do not be mislead by reports in this instance, as so many were in the insurance case appealed to the Supreme Court, by media reports of what "most experts" think. When it comes to financial services matters the so-called experts have been wrong or just plain blind too much of the time -- since before the onset of the west's financial system crisis.

This crisis is the same event now being cited by Ottawa as a reason to challenge provincial authority in securities regulation. But there is a delightful little inconsistency in the feds' argument in this matter: Ottawa prides itself on how well Canada's wonderfully regulated financial system came through the crisis in comparison with the U.S. -- and as I have noted frequently OSFI did a great job as regulator. But Canada didn't have a national securities regulator while the Americans did.

But let's not spend time picking nits.

Alastair Rickard


Wednesday, May 26, 2010

(No.94) Airport security & political theatre

It is axiomatic among frequent flyers that it is unwise when passing through airport security for a passenger to say anything negative (or indeed humorous) about the level of passenger screening one must accept in order to fly from A to B within Canada much less to the U.S. -- even as those with criminal records work on the tarmac proximate to one's plane and as unscreened parcels and mail are being loaded onto that plane. This 'rule of silence' should be in effect as one tolerates the excesses of airport passenger screening -- although some of us do slip occasionally (see "Street theatre in the sky ", column No.84 on ).

What irritates me more than the ostentatiously elaborate (and, when tested, often ineffective) level of passenger screening that helps make flying into the ordeal it has become is the knowledge that governments including our own have spent huge amounts of money on passenger screening, mandating reinforced cockpit doors and the like while the planes themselves are loaded up with cargo that could contain explosives. Why? Because the bulk of the money spent on -- and the focus of attention in -- airport/airline security in Canada as well as in the U.S. has (partly for political reasons) gone into what the travelling public sees and experiences. The message is: "see what we're spending all the tax money on for your safety".

Canadian Senator Colin Kenny was for several years the chair of the Senate's Committee on National Security and Defence. He repeatedly warned the federal government about important gaps in Canadian airport security. These warnings included the fact that much of the commercial cargo and mailbags being loaded on passenger planes was unscreened for security purposes.

In a 2007 report Senator Kenny's Committee made recommendations to address the risk posed by the fact that airmail transported on passenger planes flying from Canadian airports has never been properly and systematically inspected. Similar warnings had been given to the feds in a 2003 report. Result to date: very little. Senator Kenny says current security measures for cargo and airmail are still "non-existent".

Meanwhile the federal government is spending millions of dollars to buy electronic 'naked' (full body view) scanners to put in airports to increase the already silly level of screening of passengers. What else but silly could one call an airport security charade which sees long lines of the shoeless and beltless being 'wanded' and patted down in order to be allowed to board aircraft whose holds are, even as the passengers' private parts are scanned or even fingered, in the process of being filled with uninspected cargo.

But you may say: " Aren't you glad to have tight security for your own protection when you fly?"

I recognize the need for effective security within reason but (a) what we have is only the appearance of tight security, and (b) the way we are going at security is unnecessarily excessive and incomplete. For proof one need only consider how the Israelis and their El Al airline handle security and do so with complete success while facing very real terrorism threats on a daily basis.

What happens in North America? When some loser gets on an American airplane in Europe and tries unsuccessfully to ignite his shoe or the crotch of his pants U.S. Homeland Security and American cable news networks join in a public swoon over the 'failure' in airline security and of course Canada must then 'tighten up' the frisking of its airline passengers, especially those flying to U.S. destinations. As for cargo loaded on the same planes that does not originate with passengers on the flight, well never mind ....

Of course one is meant to feel ever so much safer even though nothing comprehensive has been done by Ottawa, for example, to address the fact that Canada's airports are -- as the Senate's report stated -- "riddled with organized crime" including many who have criminal records working daily in airports and on the tarmacs.

All of this is by way of preamble to action announced by the federal government. It is interesting to note that this announcement was made on the Victoria Day holiday Monday when both critical reaction and the reporters to seek it out would be in shorter than normal supply.

And what was this news? Improvements are to be made in behind-the-scenes airport security involving cargo.

Why move now after all this time? The feds are trying to get out in front of the forthcoming release of Mr. Justice Major's inquiry into the Air India bombing. One of the report's five volumes will deal with aviation security and it would hardly be surprising if it makes some critical comments about Canadian security.

The federal 'initiative' announced on May 24 amounts to a program funded with only $19 million a year for 5 years to be spent on trying to ensure that thousands of Canadian companies don't ship bombs in their cargo yet still places the onus on shippers and air carriers to ensure safety. As a program to significantly enhance air travel security it is not really addressing the air cargo security deficiency -- nor will it until cargo is routinely inspected and its origins verified. Is that a realistic objective? Perhaps not but if not then let's also quit pretending that such activities as examining 'carry on' baby seats is of any real value in terms of passenger security any more than is the seizing of a passenger's nail file.

Given that this 'new' federal approach is funded with just a comparative trickle of new federal dollars allowed to leak out from the annual flood of revenue to Ottawa generated by airport rentals and passenger-paid 'security' fees, many may doubt both the effectiveness and the motive for this initiative. Then again, perhaps one should take the view that something is better than nothing.

In view of this new federal program will you, fellow flyers, now feel reassured about the safety of your flight when next you pass through airport security and your toothpaste is confiscated or you are ordered to remove your belt and shoes or you are subjected to a physical search?

I won't be reassured but I will be working hard at not saying so while standing in the security line.

Alastair Rickard


Friday, May 21, 2010

(No.93) Raquel Welch & Clare Boothe Luce

When sex symbol Raquel Welch was running around in a fur bikini in Hammer Films' 1960s remake of One Million Years BC the American writer, editor, playwright, politician and diplomat Clare Boothe Luce was still adding lustre to her career. She died in 1987 at age 84. Welch is still around. At age 70 she looked terrific when she appeared recently on the Craig Ferguson chat show.

These two women will be forever linked in my memory because of a television interview I watched involving both of them. In it (as I remember) Luce interviewed Welch who said scarcely anything worth hearing but Luce was nonetheless the soul of graciousness. She did not eviscerate Welch with the sort of one liners she put into the mouths of her female characters in her 1936 play The Women now in previews at the Shaw Festival in Niagara-on-the-Lake.

The play had an initial Broadway run of more than 650 performances and has been revived periodically, notably in the 1970s and the 1990s. George Cukor directed The Women as a Hollywood movie in 1939. If it sounds peculiar to say that the play was regarded as immoral in some quarters, think about what the U.S. was like more than 3/4 of a century ago. Today the play has even been likened to the popular American television series Desperate Housewives. Not really an apt comparison. The play is far more literate and sophisticated than any primetime soap opera.

The Women has been dismissed by some critics as a play about backstabbing 'ladies who lunch', women of the sort Luce knew and with whom she socialized in New York. In fact, for an American play of the 1930s it makes some pointed social commentary on class and wealth but does it in what is mainly a funny social satire. Its all female cast portray New York City society women who toss off acerbic and witty comments.

The play revolves around the revelation that the husband of the central character, Mary Haines, is having an affair. Alisa Palmer, the director of the Shaw production, has recognized the appeal of an approach to The Women true to the spirit with which Luce endowed it in the 1930s. It combines clever dialogue with an over-the-top acting style for some of its characters, a style for which they are made to order. Notable among these are Deborah Hay as the acerbic Syliva Fowler, Jenny L. Wright as the always pregnant Edith Potter and especially Wendy Thatcher as the Countess de Lage.

Jenny Young in the Haines lead role is very good and a couple of supporting performances were gems: Sherry Flett as Mrs. Morehead, Mary Haines' mother and Kelli Fox as writer/observer Nancy Blake.

It is pleasant these days to be able to attend plays that are not revivals of Broadway musicals or musical 'tribute' shows (imitations), productions dependent in part for audience interest and enthusiasm on their dialogue. The Women by Clare Boothe Luce fits the bill.

As with our attendance at two other Shaw productions this season ( Harvey and The Ideal Husband; see the review in column No.87 on Pat and I enjoyed this production of The Women and recommend it.


"The Women" will run in Shaw's Festival Theatre (one of four venues the Shaw uses) through Oct 9 in Niagara-on-the-Lake. Dates of performances and other details plus online ticket purchase can be accessed at


Alastair Rickard


Sunday, May 16, 2010

(No.92) Financial executives: more nerve than a canal horse

As the experience in Canada compared with the U.S. in the last couple of years has demonstrated, strong and comprehensive government regulation of financial services (and not just of banks but also insurance) is necessary to protect the consumer and preserve the integrity and soundness of the financial system.

In Canada, as I have observed in previous columns on, the big banks have taken far too much of the public credit for their relatively favourable performance during the financial crisis compared to those in the U.S. and elsewhere. The bulk of the credit belongs to strengthened federal regulation in the 1990s and to strong federal regulators who have actually been the object of pissing and moaning by Canadian bank executives for getting in the way of their entrepreneurial creativity.

As we saw pre-crisis the American version of financial regulation and deregulation facilitated (among other subsequent problems) the sub-prime mortgage debacle and its contributing role in the crisis which overtook the U.S. financial system, the waves from which threatened to submerge the west's if not the world's financial system.

The U.S. did not benefit from the sort of financial regulation under which, as we now see so clearly, the rule in the financial business became: heads you win, tails the taxpayer loses. Nor is there any attraction left except to simple-minded and/or greed-driven adherents of 'market place freedom' in the actual 'unregulation' of aspects of the financial system (e.g., credit default swaps).

To be found in the serried ranks of big business executives in the U.S. and Canada have been the self-serving and the ideologically deluded declaring that 'free markets' are self-regulating. Obviously they were not and are not. As the chair of the U.S. Securities and Exchange Commission admitted post-crisis onset: voluntary regulation doesn't work.

U.S. financial regulation did not reduce risk; it allowed it to be hidden. Investors, including supposedly sophisticated ones, had no real idea of the implications of many of the financial products they were buying and how exposed they were to unacceptable risk.

My maternal grandmother was, for me growing up, a fountain-head of sayings which sprang from her old Ontario/United Empire Loyalist roots. One was: "He (or she) has more nerve than a canal horse". This was not meant as a compliment. It was that saying which came to mind as I saw the risible effort currently under way by the usual crowd of financial executives and their remaining groupies among the financial services paparazzi to fight off the imposition of genuine financial regulatory reform.

Many in the U.S. including within the Obama administration are entirely right to question the value of a financial regulatory system that did little or nothing to prevent or even impede (for example) the development of a huge sub-prime mortgage industry based on the promiscuous and sometimes illegal promotion of millions of residential mortgages to house buyers whose credit worthiness went unchecked, whose income levels were ignored and whose financial ignorance and gullibility was the basis of their signing of mortgage documents. The results have been dire and the crisis is far from over. For example: today in the U.S. there are more than 20 million unoccupied homes.

The reality was and (largely) still is that executive greed, incompetence and misconduct were central to the mess that much of the developed world as well as the Americans are in. There is no shortage of directions in which to look for causes. Indeed the big financial rating agencies are now coming under the U.S. congressional gun and why would they not? The public has learned that during pre-meltdown activity in the market financial companies could actually shop for a favourable rating among rating agencies -- as Lehmann Bros. did and received a AAA rating four days before it failed.

I have long resisted the siren call from within the financial services business for less regulation, as if its reduction constituted some sort of ideologically-driven vehicle to carry business to the promised land of market capitalism. If any demonstration was actually required that such a place can actually turn out to be a desert then we have had it.

Having sat for many years on the companies' side of the table dealing with regulatory issues in financial services I know that encouraging voluntary behaviour involving compliance and self-regulation by business as talking points is all very well but they need to be backed up by forceful regulation. The reality is, as the US. experience of recent years demonstrates so vividly, that while some companies will bend over backwards to do the right thing there are too many others which will not -- absent strong regulations and vigorous enforcement.

Alastair Rickard


Thursday, May 6, 2010

(No.91) Escaping dross & drek with The Pallisers

These days it is a minority of households lacking access through cable service or satellite dish to at least 50 television channels, most of which are clogged up with drek like an old drain. Even the cable news channels in both Canada and the U.S. are hopelessly repetitive and frequently superficial, fractured into short segments by endless commercials selling ginzu knifes by mail. It tries the patience of many of even the most ardent current affairs junkies.

To be sure there are oases in the increasingly arid landscapes of broadcast news and entertainment but they are fewer in part because proliferating cable channels are aimed at narrower interests and smaller potential audiences..

Consider also the sad example of the A & E Network cable channel in the U.S. and widely available in Canada. A & E formerly presented itself as the Arts & Entertainment channel and its programming dollars went towards many wonderful productions, often from the U.K. Just one example: the superb 1995 BBC 5 hour miniseries of Jane Austen's "Pride and Prejudice", a version that is likely to remain the gold standard for this often-dramatized novel.

Today A & E has moved 180 degrees to become the home of pedestrian content aimed at a lowest common denominator audience. It now broadcasts the sort of rubbish that relies on endless episodes of 'reality shows' like "Dog the Bounty Hunter". Or how about The Learning Channel (or TLC as it is now called) whose idea of 'educational' content has become cop videos presented under program titles such as "Police Women of Maricopa County"?

While fine new drama in significant quantity is thinner on the broadcast ground than ever, the other side of today's "less and less from more and more channels" is the availability on DVD of so many fine movies as well television programs made over many years for and by broadcasters in Canada, Britain and the U.S. The BBC is a particularly deep well of such material.

I have referred previously in this column to a particular example of such a classic production -- Dennis Potter's superlative "The Singing Detective" (see column No. 28 on Another English production Pat and I have recently revisited is the BBC's series "The Pallisers" presented in 26 episodes in the mid-1970s.

This series was adapted for televison by Simon Raven from the six so-called political novels of England's prolific Victorian novelist Anthony Trollope (1815-1882). The publication of these particular Trollope novels stretched from 1845 to 1880.

The world of three generations of the Palliser family has as its focus the political and private lives of mid-to-late Victorian aristocracy. The stories are inseparable from British politics of the period, especially the Liberal Party both in and out of office. The central characters of the novels are members of what Trollope called "the upper ten hundred of this our English world".

As one who spent many rewarding hours (as well as quite a few frustrating ones) doing research for two graduate degree theses involving the history of Victorian Britain I find notes struck by the television series "The Pallisers" resonate wonderfully as it follows the family through more than a quarter century.

The cast is immense (90 roles excluding extras), the costumes and settings both authentic and impressive, the dialogue and the acting style well suited to the period represented. The actors in the series seem almost to constitute a 'who's who' of a generation of English character actors.

My particular favourites among a number of noteworthy performances in "The Pallisers" include Roland Culver as the elderly Duke of Omnium and Roger Livesey's turn as the Duke of St.Bungay, in the latter case mainly because it was one of the last roles Livesey did before his death in 1976. Two small gems among the many performances were delivered by Donald Pickering (who died last year) as Dolly Longstaffe and the heavily bearded Moray Watson as Barrington Erle.

"The Pallisers" was broadcast on the BBC in 1974 and then in the U.S. on HBO and subsequently on PBS's Masterpiece Theatre. The complete series is now available on DVD. I suspect it is difficult to find as a rental if one's only source is a local Blockbuster outlet.

Acorn Media is a firm that has made not just a speciality but a focus of its DVD business the identifying, gathering and distributing of DVDs of a very long list of British television programs drawn from productions made over many years. Their amazingly extensive catalog of British programs for sale on DVD can be accessed at and can be purchased directly from them. Alternatively some of these programs, including "The Pallisers" and numerous other British period dramas, can be ordered online from and from www.

It is worth comparing the prices offered for such DVDs by these three firms. Prices will vary with the title and by whether or not the particular title is a sale or discount item. For the complete set of the DVDs of "The Pallisers" the prices when I checked just recently were :

Chapters.Indigo -- $112 (Can)
Amazon -- $117 (Can)
Acorn -- $125 (US)

All of this is by way of underlining the fact that countless hours of superior viewing are available as an alternative to the dross and dregs which threaten to overwhelm, a tide which internet ephemera causes to rise continuously.

Alastair Rickard


Sunday, May 2, 2010

(No.90) Banks, stability & insurance: the silly & the wise

Previously on I have made this point: the big Canadian banks received -- and continue to receive -- bouquets from around the world for their solidity and probity during the 2007-2008 financial crisis that caused so many financial institutions to stumble or fall. While our big banks' senior managers deserve some credit, they deserve far less than do the tough, revised federal rules for Canadian banks (passed by the Liberals in 1996) and, just as important, OSFI's strict and aggressive federal regulation of the banks.

The CEO of the Canadian Bankers Association, Nancy Hughes Anthony, recently bragged in a letter to the Globe and Mail (May 1) that Canada's big banks "did not need taxpayer-funded government bailouts". Well, yes and no.

She omitted mention of Ottawa having provided our banks with a crisis-prompted $200 billion low interest line of credit. And then there was that little glitch involving certain bank-involved paper (especially the National Bank). Still, thanks largely to federal rules and federal regulation Canada did come through the financial crisis looking so good that federal Finance Minister Flaherty had the credibility at the recent G20 finance ministers meeting to manage alone to oppose and delay meaningful progress on the imposition of an internationally desired "bank tax", opposition emphatically desired by both Canadian banks and their regulators.

Former federal Superintendent of Financial Institutions (1994-2001) John Palmer, in contrasting the superiority of Canada's regulatory results manifested during the international financial crisis with those of the EU and the US, credits the "judgmental supervision" exercised by Canada's federal regulators. I agree, but point additionally to the importance of it having been married to an aggressive regulatory attitude by OSFI to banks.

What bankers like Ms Anthony conveniently omit from their public declarations these days is any reference to all the pre-crisis pissing and moaning done by Canadian bankers about the too restrictive/onerous/aggressive regulation by Ottawa, the negative effect it had on Canadian bank entrepreneurial activity and profits in comparison with all of the wonderful, freedom-based success being enjoyed by banks outside Canada, e.g., with sub-prime mortgages. Even now there's been big bank bleating about how OSFI is blocking banks from boosting their dividends because of regulatory caution in keeping up the Canadian banks' capital levels. Same old, same old.

[ An excellent overview of bank regulation in Canada in the view of John Palmer was written by John Geddes for MACLEAN'S, May 10 edition, 2010.]

Meanwhile the Globe and Mail's Report On Business is back (q.v., April 26,2010) to making insurance mountains out of bank molehills with its breathless coverage of Finance Minister's Flaherty's public reaffirmation of his commitment to halt the banks' use of bank websites (not bank insurance company subsidiaries' websites) to promote/facilitate their sale of non-authorized types of insurance. Note to the Globe ROB: there had actually arisen no informed doubt that the Minister and his Finance Dept. would get their way on their already announced policy on banks and insurance.

[For background on the reality of banks and insurance in Canada, see for example on column nos. 33,34,47,48,69.]

This ROB story was immediately followed by the truly earth-moving news (Globe ROB, April 27) that the banks had managed to get some sort of quid pro quo from Ottawa that would restrict how insurance companies promote/facilitate the sale of bank products online. In fact the only Canadian non-bank-owned insurer with any real dog in this online fight is Manulife because of its own Manulife Bank. And even so most of Manu's product sales in Canada originate by and through licensed sales people, not online.

I expect that the Canadian insurance industry will regard such a restriction (if implemented) on their online activities involving bank products as commercially insignificant, especially in comparison with what the banks are trying (with very limited success) to accomplish with insurance sales online -- absent significant use, for most of the banks, of very much if any in the way of genuine active, prospecting, selling-based agency systems.

If such a restriction on insurance company online promotion and sale of bank manufactured GICs and the like is the price to be paid by insurance companies in order to restrict current and future bank online insurance activity via their websites, the price is inconsequential.

Mark down another regulatory victory for the Canadian insurance industry over the big banks.

Alastair Rickard