Canada needs to toughen short selling rules to weed out abuse, market watchers say

Canada needs to crack down on a certain type of short sellingbecause a growing number of bad apples areabusing the system for everyone, market watchers say.

Short selling is an investment strategy that allows people to make money when they think the price of a stock is about to decline.

A conventional investor makes money by buying a stock he or she thinks is undervalued, and then waits for the price to improve before selling it for a profit. But a short seller makes money when a stock pricedeclines. They do that by borrowinga stock owned by someone else, sellingit to collect the money, and then replacingthe borrowed stock by buying it off someone else once the price has dropped.

It's a controversial strategy with plenty of detractors.Buteven critics acknowledge it can provide a valuable service to everyone in the market by rooting out fraud.

In recent years, Canadian companies such as Sino-Forest, Shopify, Valeant, Home Capitaland many othershave found themselves targeted by short sellers, with the shorts having various degrees of impactin each of those cases.

Short sellers whoexpose the truth about misdeeds by companies mayprovide a valuable service. Short selling becomes abusive, and problematic for the market, when a small minority of investors bend the truth to make money through panic.

"Both as a financial hedging instrument and as a tool to root out bad behaviour, short selling will always have an important role in our capital markets," saidWalied Soliman, the global chair of law firm Norton Rose Fulbright Canada. "But abusive short selling is ...market participants who ...use either exaggerationsor misrepresentations to drive their narrative."

Canada 'targeted'

This type of market manipulation seems to be on the rise in Canada. Canada is"highly targeted by the U.S. [shorts]because it's an easier target, there's weaker rules here," said investor JohnMastromattei.

Solimansaidthat the way securities laws are set up give an unfair advantage to abusive short sellersbecause companies and investors who buy companies on the way up have to play bya much different rule book.

Anyone buying up a large enough chunk of a company has to disclose that to regulators.Their public statements are closely scrutinized, and their future buying and sellingis bound by myriad rules. Executives at companies have to choose their words carefully when talking to the media, for fear of letting news slip that investors and regulators didn't hear about first.

That's not true for short sellers. Theycan largely operate in secret until they choose to go public. "If an issuer were to put out what we see from shorts, they would be the subject of class action lawsuits and regulatory arm slapping immediately," Soliman said. He suggestsimplementing disclosure rules for shorts as a reasonable first step to addressing the problem.

European Union rules mandate that short sellers must tell regulators when their position is as small as 0.2 per cent of a company, and let the public know when they top 0.5 per cent.

"Iwould like to see early warning disclosure requirements for short sellers," Soliman said."Iwould like to see statutory rights of action against market participants who knowingly either exaggerate or misrepresent."

Soliman said he would like to see a crackdown on a type of abusive short selling that almost always originates on social media and stock message boards, by people putting out research designed to start a panic.

"Those who do thatknow full well that ...investors jump away from these positions at the slightest notion that there could be something wrong," he said."The exaggerations or even worse the misrepresentationsend up resulting in a self-fulfilling prophecy."

"In circumstances where it's founded, go get them," he said."But don't exaggerate and don't misrepresent."

Market manipulation

Soliman declinedto name specific individuals or firms involved in the negative practice, citing confidentiality.

However, he said he worked with three companies in the past year who were targeted by abusive short sellers who made "either significant exaggerations or straight out misrepresentations." In all three cases, it took a "monumental effort" for the companies todispel allegations that had no meritand maintain the confidence of their investors.

The instinct for many investors, Soliman said, is to think that "where there's smoke there's fire."

Mastromatteisaidabusive shorts take advantage of that. "Those kinds of shorts are the ones who see a little smoke and they add gasoline."

He cites the ongoing saga of cannabis company Aphria Inc. as a good example. In December, the company was rocked by accusations by a short seller that the firmwasted hundreds of millions on foreign acquisitions that are essentially worthless.

The stock lost more than 50 per cent of its value in the three days that followed. While it has since recovered,a hostile takeover offer has emergedfor the company, and investors are pursuing a class action lawsuit against the businessover how it handled some of its dealings.

The Aphria saga is ongoing. While the truth of the matter is yetto emerge, Mastromatteisaidit's a great example of how lax rules leave Canada open to abuse."That's where the regulator has to step in," he said."That's market manipulation, you can't do that."

(In the interest's of fulldisclosure,Mastromatteisaidhe had no stake inAphriabefore the original short selling story broke, but took a six-figure position in the company after the sell-off because he suspected it was overblown.)

Boardroom 'chaos'

The CBC reached out to the Ontario Securities Commission to ask whether the regulator is contemplating changes to their short selling rules.The agency referred us to the Canadian Securities Administrators, an umbrella organization that represents 13 provincial regulators across the country.

"The CSA is currently in the preliminary stages of a project that involves reviewing the nature and extent of abusiveshort-sellingin Canadian capital markets," spokespersonIlana Kelemensaid. "We are in the information-gathering phase of this initiative and cannot provide further details at this time."

Until any changes happen, companies will remain fearful about finding themselves on the wrong side of a short campaignbecause of the damage that unfair ones can create. "The chaos that a short campaign causes inside aboardroomfar outweighs the chaos that a proxy battle or hostile takeover causes," Solimansaid.

"Because wedon'thave a good enough defence for it."