40-F
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 40-F
[Check one]
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REGISTRATION STATEMENT PURSUANT TO SECTION 12 of THE SECURITIES EXCHANGE
ACT OF 1934 |
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ANNUAL REPORT PURSUANT TO SECTION 13(a) OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
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For the fiscal year ended October 31, 2008
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Commission File Number 001-31316 |
THE BANK OF NOVA SCOTIA
(Exact name of Registrant as specified in its charter)
CANADA
(Province or other jurisdiction of incorporation or organization)
6029
(Primary Standard Industrial Classification Code Number (if applicable))
Not Applicable
(I.R.S. Employer Identification Number (if applicable))
44 King St. West, Scotia Plaza 8th floor,
Toronto, Ontario, Canada M5H 1H1
(416) 866-3672
(Address and telephone number of Registrants principal executive offices)
The Bank of Nova Scotia, One Liberty Plaza, 25th floor,
New York, N.Y., U.S.A. 10006
Attention: Douglas Cooper
(212) 225-5000
(Name, address (including zip code) and telephone number (including area code)
of agent for service in the United States)
Securities registered or to be registered pursuant to Section 12(b) of the Act.
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Title of each class
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Name of each exchange
on which registered |
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Common
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New York Stock Exchange |
Securities registered or to be registered pursuant to Section 12(g) of the Act.
Not applicable
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
Not applicable
(Title of Class)
For annual reports, indicate by check mark the information filed with this Form:
þ Annual information form þ Audited annual financial statements
Indicate the number of outstanding shares of each of the issuers classes of capital or common
stock as of the close of the period covered by the annual report.
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Common Shares |
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991,923,631 |
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Preferred Shares, Series 12 |
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12,000,000 |
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Preferred Shares, Series 13 |
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12,000,000 |
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Preferred Shares, Series 14 |
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13,800,000 |
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Preferred Shares, Series 15 |
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13,800,000 |
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Preferred Shares, Series 16 |
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13,800,000 |
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Preferred Shares, Series 17 |
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9,200,000 |
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Preferred Shares, Series 18 |
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13,800,000 |
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Preferred Shares, Series 20 |
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14,000,000 |
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Preferred Shares, Series 22 |
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12,000,000 |
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Indicate by check mark whether the Registrant by filing the information contained in this Form is
also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the
Securities Exchange Act of 1934 (the Exchange Act). If Yes is marked, indicate the filing
number assigned to the Registrant in connection with such Rule.
Yes o 82- No þ
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period
that the Registrant was required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
Yes þ No o
CONTROLS AND PROCEDURES
Managements responsibility for financial information contained in the Annual Report is described
on page 104 of Exhibit 3, 2008 Consolidated Financial Statements. In addition, the Banks Audit and
Conduct Review Committee of the Board of Directors has reviewed, and the Board of Directors has
reviewed and approved, the 2008 Consolidated Financial Statements and Managements Discussion and
Analysis prior to release. Scotiabank is committed to providing timely, accurate and balanced
disclosure of all material information and to providing fair and equal access to such information.
The Banks disclosure policies and practices are published on its website.
Disclosure
controls and procedures
Our disclosure controls and procedures are designed to provide reasonable assurance that
information is accumulated and communicated to the Banks management, including the Chief Executive
Officer (CEO) and Chief Financial Officer (CFO), as appropriate, to allow timely decisions
regarding required disclosure.
As of October 31, 2008, the Banks management, with the participation of the CEO and CFO,
evaluated the effectiveness of its disclosure controls and procedures, as defined under the rules
adopted by the U.S. Securities and Exchange Commission (SEC) and the Canadian securities regulatory
authorities, and has concluded that the Banks disclosure controls and procedures are effective.
Internal controls over financial reporting
Management of the Bank is responsible for establishing and maintaining adequate internal controls
over financial reporting. These controls include policies and procedures that (1) pertain to the
maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions
and dispositions of the assets of the Bank; (2) provide reasonable assurance that transactions are
recorded as necessary to permit preparation of financial statements in accordance with GAAP, and
that receipts and expenditures are being made only in accordance with authorizations of management
and directors of the Bank; and (3) provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use or disposition of the Banks assets that could have a
material effect on the financial statements.
All control systems contain inherent limitations, no matter how well designed. As a result,
the Banks management acknowledges that its internal controls over financial reporting will not
prevent or detect all misstatements due to error or fraud. In addition, managements evaluation of
controls can provide only reasonable, not absolute, assurance that all control issues that may
result in material misstatements, if any, have been detected.
Management assessed the effectiveness of internal controls over financial reporting, using the
Committee of Sponsoring Organizations of the Treadway Commission (COSO) framework, and based on
that assessment concluded that internal control over financial reporting was effective, as of
October 31, 2008.
Changes in internal control over financial reporting
There have been no changes in the Banks internal control over financial reporting that have
materially affected, or are reasonably likely to materially affect, the Banks internal control
over financial reporting during the year ended October 31, 2008.
INTERNAL CONTROL OVER FINANCIAL REPORTING
Managements Report on Internal Control over Financial Reporting and the Report of Independent
Registered Public Accounting Firm are provided in Exhibit 4.
AUDIT COMMITTEE FINANCIAL EXPERT
All of the members of the Banks Audit and Conduct Review Committee of the Board of Directors
(audit committee) are financially literate and independent, and one or more members of the audit
committee meet the definition of a financial expert. The Banks board of directors has determined
that Mr. Ronald A. Brenneman is an audit committee financial expert and is independent, as that
term is defined by the New York Stock Exchanges corporate governance standards applicable to the
Bank.
The Securities and Exchange Commission has indicated that the designation of a person as an
audit committee financial expert does not impose on such person any duties, obligations or
liability that are greater than the duties, obligations and liability imposed on such person as a
member of the audit committee and board of directors in the absence of such designation.
CODE OF ETHICS
The Bank has adopted a code of ethics, entitled Scotiabank Guidelines for Business Conduct (the
Guidelines). These Guidelines have been in place for many years and apply to all directors,
officers and employees of the Bank. Effective August 1, 2008, the Guidelines were updated to
reflect current industry best practices. A copy of the revised Guidelines was filed as an exhibit
to Form 6-K filed with the U.S. Securities and Exchange Commission (EDGAR Company Filings) on
August 1, 2008. The Guidelines are available on the Banks website at www.scotiabank.com, in the
Corporate Governance section, and are available in print to any person, without charge, upon
written request to the Secretary of the Bank at the Toronto executive office address shown above.
A supplement to the Guidelines, entitled Financial Reporting Whistleblower Policy, is also posted
on the Banks website. Amendments to the Guidelines and waivers, if any, for directors and
executive officers will be disclosed on the Banks website. There were no such waivers granted in
fiscal 2008.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The
disclosure provided in Table 59 Fees paid to the shareholders auditors on page 92 of Exhibit
2, Managements Discussion and Analysis, is incorporated by reference herein. The nature of these
services is described below:
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Audit services generally relate to the statutory audits and review of financial
statements, as well as services associated with registration statements, prospectuses,
periodic reports and other documents filed with securities regulatory bodies or other
documents issued in connection with securities offerings. |
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Audit-related services include attest services required by regulatory bodies not
directly linked to the financial statements, audits of employee benefit plans, other
associated entities and mutual funds, and special attest services not required by statute
or regulation, but requested by a party to a specific transaction. In 2008 these services
included specified procedures with respect to a potential international acquisition,
training on accounting and financial reporting, review of controls and procedures related to regulatory
reporting of a subsidiary as requested by the local regulator, and consultation on the
potential impact of new accounting standards. |
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Tax services outside of the audit scope represent primarily specified procedures to
assist in the preparation of personal tax returns of individuals not in financial reporting
or accounting roles, specified review procedures required by local tax authorities,
attestation on tax returns of certain subsidiaries as required by local tax authorities,
and review to determine compliance with an agreement with the tax authorities. |
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Other non-audit services are primarily providing industry salary surveys. |
None of the above services were approved pursuant to an exemption under paragraph (c)(7)(i)(C) of
Rule 2-01 of Regulation S-X from the requirement that the audit committee pre-approve the services.
The majority of the hours expended on the audits of the 2008 and 2007 consolidated financial
statements were attributable to work performed by the full-time permanent employees of the Banks
independent auditors, KPMG LLP. The Audit and Conduct Review Committees pre-approval policies and
procedures, as revised effective March 5, 2007, were attached as Exhibit 7 to the Form 40-F filed
on December 19, 2007 for the fiscal year ended October 31, 2007 and were subsequently approved
without changes upon annual review January 21, 2008.
OFF-BALANCE SHEET ARRANGEMENTS
The disclosure provided under Off-Balance Sheet Arrangements on pages 42 to 46 and Variable
Interest Entities on pages 80 and 81 of Exhibit 2, Managements Discussion and Analysis, is
incorporated by reference herein. Additional information from note 1 on pages 111 to 115, note
4(b) on pages 118 and 119, note 6 on pages 120 and 121, note 13 on pages 123
to 125, note 14 on pages 125 and 126, note 23 on pages 137 to 139, note 24 on pages 139 to 147,
note 25 on page 148, and note 27 on pages 149 to 153 of Exhibit 3, 2008 Consolidated Financial
Statements, is incorporated by reference into Off-Balance Sheet Arrangements in Managements
Discussion and Analysis.
CONTRACTUAL OBLIGATIONS
The disclosure provided under Contractual Obligations on page 74 of Exhibit 2, Managements
Discussion and Analysis, is incorporated by reference herein. Additional information from note 10
on page 122, note 19 on pages 132 to 134, note 23 on pages 137 to 139, note 24 on pages 139 to 147,
and note 25 on page 148 of Exhibit 3, 2008 Consolidated Financial Statements, is incorporated by
reference into Contractual Obligations in Managements Discussion and Analysis.
IDENTIFICATION OF THE AUDIT COMMITTEE
The Banks audit committee is composed of the following directors: Hon. Michael J.L. Kirby
(Chair), Ronald A. Brenneman, Thomas C. ONeill, Elizabeth Parr-Johnston, Alexis E. Rovzar, Indira
V. Samarasekera, Paul D. Sobey, and Barbara S. Thomas. Ex-officio member: Arthur R.A. Scace.
Undertaking
Registrant undertakes to make available, in person or by telephone, representatives to respond to
inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the
Commission staff, information relating to: the securities registered pursuant to Form 40-F; the
securities in relation to which the obligation to file an annual report on Form 40-F arises; or
transactions in said securities.
Signatures
Pursuant to the requirements of the Exchange Act, the Registrant certifies that it meets all of the
requirements for filing on Form 40-F and has duly caused this annual report to be signed on its
behalf by the undersigned, thereto duly authorized.
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Registrant: |
THE BANK OF NOVA SCOTIA
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By: |
/s/ Luc Vanneste
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Name: |
Luc A. Vanneste |
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Title: |
Executive Vice-President and Chief Financial Officer |
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Date: December 8, 2008
EXHIBIT INDEX
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Exhibit No. |
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Description |
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1.
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Annual Information Form dated
December 8, 2008 |
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2.
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Managements Discussion and
Analysis (pages 21 through 101 of the 2008 Annual
Report) |
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3.
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2008 Consolidated Financial
Statements (pages 103 through 157 of the 2008 Annual
Report) |
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4.
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Managements Report on Internal Control over Financial Reporting
and
Report of Independent Registered Public Accounting Firm
(page 102 of the 2008 Annual Report) |
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5.
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Corporate Governance |
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6.
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Auditors Consent |
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7.
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Comments by Auditors for U.S. Readers on Canada U.S. Reporting Differences |
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8.
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Certifications required by Rule 13a-14(a) or Rule 15d-14(a), pursuant to
Section 302 of the U.S. Sarbanes-Oxley Act of 2002. |
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9.
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Certifications required by Rule 13a-14(b) or Rule 15d-14(b) and 18 U.S.C.
Section 1350, as enacted pursuant to Section 906 of the U.S. Sarbanes-Oxley Act of
2002. |