W. Edmund Clark and Toronto Dominion Bank

Headnote

NP 11-203 -- Relief granted from insider reporting requirements for insider in respect of exercise if options and the acquisition, transfer and disposition of common shares pursuant to an automatic share disposition plan.

Applicable Legislative Provisions

National Instrument 55-101 Insider Reporting Exemptions.

November 14, 2008

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ONTARIO

(the Jurisdiction)

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

W. EDMUND CLARK AND THE

TORONTO DOMINION BANK

DECISION

Background

The principal regulator in the Jurisdiction has received an application from W. Edmund Clark (the Insider) and The Toronto Dominion Bank (TD Bank, and collectively with the Insider, the Filers) for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for an exemption pursuant to section 121(2)(a)(ii) of the Securities Act (Ontario) (the Act) from the requirements set out in section 107(2) of the Act that the Insider file an insider report within 10 days of each: (i) exercise of Options (as defined herein), (ii) acquisition and transfer of Shares (as defined herein) to the direct ownership of the Insider, and (iii) disposition of Shares effected pursuant to an automatic share disposition plan (collectively, the Exemption Sought), subject to certain conditions.

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):

1. the Ontario Securities Commission is the principal regulator for this application; and

2. the Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Newfoundland and Labrador.

Interpretation

Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.

Representations

This decision is based on the following facts represented by the Filers:

1. TD Bank, collectively with its subsidiaries known as TD Bank Financial Group, is a Canadian chartered bank subject to the provisions of the Bank Act (Canada).

2. The head office and registered office of TD Bank are located in the Toronto Dominion Bank Tower, Toronto-Dominion Centre, Toronto, Ontario.

3. TD Bank is a reporting issuer in each of the provinces and territories of Canada where such a concept exists and the common shares (the Shares) in the capital of TD Bank are listed for trading on the Toronto Stock Exchange, the New York Stock Exchange and the Tokyo Stock Exchange.

4. The Insider is the President and Chief Executive Officer of TD Bank Financial Group and is an "insider" of TD Bank as that term is defined in the Legislation.

5. On May 28, 2008, TD Bank announced that the Insider would enact an automatic share purchase plan (the Plan) to exercise 650,000 TD Bank options (the Options) in a period from October 2008 until the end of 2009. The Options were all granted to the Insider under the employee stock option plan of TD Bank and all such grants were the subject of insider reports filed by the Insider indicating the date of the grant, the number of Options granted and the exercise price of the Shares issuable upon exercise. Each Option is exercisable for one Share. The Insider will both sell and donate to charity, and acquire and transfer to his direct ownership, Shares issued upon the exercise of Options pursuant to, and in accordance with predetermined instructions set out in, the Plan.

6. The Plan was adopted effective as of June 3, 2008. On June 11, 2008, the Insider filed an insider report indicating a change in his ownership of the Options from direct to indirect ownership as a result of the adoption of the Plan. The Plan was amended and restated as of September 9, 2008 to, inter alia, add a condition to exercises of Options under the Plan that the trading price of the Shares must be at least above both the exercise price and a specific minimum price stipulated in the Plan, as well as to clarify administrative procedures to be followed in connection with the Plan.

7. The Plan was effected with the concurrence of the board of directors of TD Bank and in accordance with TD Bank's insider trading policy and applicable law (as a result of which the Insider was free to trade Shares at the time provided that he was not in possession of any material undisclosed information relating to TD Bank). In addition, the general counsel of TD Bank certified on each of June 3, 2008 and September 9, 2008 that on those dates, the Insider was not prohibited from trading in Shares under TD Bank's insider trading policy and that, to the knowledge of the general counsel, the Insider was not in possession of material undisclosed information relating to TD Bank.

8. The Plan will terminate on the earliest of: (i) December 31, 2009, (ii) the exercise of all Options covered by the Plan, (iii) the reasonable determination by the Insider or TD Bank that the Insider or the Plan is no longer in compliance with applicable securities laws or that the Insider has breached the Plan or any of the representations and warranties given by the Insider in the Plan, (iv) the occurrence of a merger or other transaction as a result of which the Shares have been converted into shares of another entity or cash, (v) the termination of employment of the Insider with TD Bank, or (vi) the death of the Insider. Neither of the Filers has any other rights to terminate the Plan.

9. Under the Plan, TD Waterhouse Canada Inc. (the Service Provider) has been appointed as the service provider. The Service Provider will exercise or direct the exercise of the Options, transfer certain of the Shares acquired to the direct ownership of the Insider, and sell and donate certain of the Shares, in each case for and on behalf of the Insider and in accordance with pre-determined written instructions which form part of the Plan as to the date of exercise, the minimum trading price for the Shares to be met prior to exercise, the number of Options to be exercised on each exercise date, the number of Shares to be donated, sold or transferred to the direct ownership of the Insider, and the other relevant details specified in the Plan. All such exercises, transfers, sales and donations are collectively referred to herein as Transactions and each is a Transaction.

10. All exercises of Options prior to a specified date (the Minimum Price Expiry Date) must satisfy the condition that the trading price on the trading day before the relevant exercise price exceeds the specific minimum price stipulated in the Plan. The Insider has no right to change the minimum price for exercises of Options occurring before the Minimum Price Expiry Date. Unless the Insider elects to establish a new minimum price condition as set out below, exercises of Options after the Minimum Price Expiry Date would occur in accordance with the schedule of exercises appended to the Plan, subject only to the condition that Options to be exercised be in-the-money on the exercise date.

11. The Insider may elect to establish a new minimum price condition for exercises of Options which are to occur after the Minimum Price Expiry Date in accordance with the following:

(a) the Insider may only give notice of a new minimum price condition once, and then only at a time when the Insider would not be prohibited from trading in Shares under TD Bank's insider trading policy and at a time when the Insider is not in possession of any material undisclosed information relating to TD Bank; and

(b) the Insider must deliver to the Service Provider and to TD Bank a notice of a new minimum price condition, the delivery of which constitutes the Insider's representation and warranty that:

i. the Insider is not prohibited from trading in Shares pursuant to TD Bank's insider trading policies;

ii. the Insider is imposing a new minimum price condition in good faith, in compliance with the requirements of and not part of a plan or scheme to evade the prohibitions of, applicable securities laws;

iii. the Insider is not aware of any material undisclosed information about the Shares or TD Bank; and

iv. neither the giving of the notice nor the imposition of a new minimum price condition violates the TD Bank's disclosure or insider trading polices.

12. Any new minimum price condition will only be effective upon the later of:

(a) two weeks after giving notice of the new minimum price condition as set forth above; and

(b) the Minimum Price Expiry Date.

Once a new minimum price condition is stipulated, the Insider has no right to change the minimum price condition prior to the termination of the Plan.

13. While the Plan is in effect, the Insider will not exercise any influence over how, when or whether to effect Transactions. In addition, the Insider has no right to suspend or terminate the Plan, other than the right to do so if the Plan is no longer in compliance with applicable law. The Insider may only vary the Plan by imposing a new minimum price condition for an exercise to occur after the Minimum Price Expiry Date, but that variation may only be done in accordance with the limitations and conditions set forth above.

Decision

The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.

The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that the Insider shall file a report, in the form prescribed for insider trading reports under the Legislation, disclosing on a transaction-by-transaction basis or in acceptable summary form (as such term is defined in National Instrument 55-101 Insider Reporting Exemptions):

1. any Options exercised under the Plan that have not been previously disclosed by or on behalf of the Insider during a calendar year within 90 days of the end of the calendar year;

2. any Shares acquired by the Insider under the Plan that have not been previously disclosed by or on behalf of the Insider during a calendar year within 90 days of the end of the calendar year; and

3. all dispositions of Shares under the Plan that have not been previously disclosed by or on behalf of the Insider during a calendar year within 90 days of the end of the calendar year.