CSA Notice on Best Execution and Amendments: NI - 21-101 - Marketplace Operation, Companion Policy, Forms 21-101F1, 21-101F2, 21-101F3 and 21-101F4

CANADIAN SECURITIES ADMINISTRATORS NOTICE ON BEST EXECUTION

AMENDMENTS TO

NATIONAL INSTRUMENT 21-101 MARKETPLACE OPERATION AND

NATIONAL INSTRUMENT 23-101 TRADING RULES

I. INTRODUCTION

The Canadian Securities Administrators (the CSA or we) have made amendments (Amendments) to the following instruments:

1. National Instrument 21-101 Marketplace Operation (NI 21-101) and related Companion Policy 21-101CP (21-101CP); and

2. National Instrument 23-101 Trading Rules (NI 23-101) and related Companion Policy 23-101CP (23-101CP).

The amendments to NI 23-101 deal mostly with the best execution obligation of dealers and advisers.

In Ontario, the Amendments were delivered by the Ontario Securities Commission (OSC) to the Minister of Finance for approval on June 20, 2008. Subject to Ministerial consideration, the Amendments will come into force on September 12, 2008.

II. BACKGROUND

These Amendments were initially published for comment along with other proposed amendments on April 20, 2007 with the Joint Notice on Trade-Through, Best Execution and Access to Marketplaces (Joint Notice){1} The Joint Notice, published in conjunction with Market Regulation Services Inc. (RS), now the Investment Industry Regulatory Organization of Canada (IIROC), proposed rule amendments relating to best execution and access to marketplaces. In addition, the Joint Notice outlined a proposal for a trade-through protection regime.

Because these three topics are separate and distinct and there are different issues associated with each one, we have decided to deal with trade-through, best execution and access to marketplaces separately and on different timetables. At this time, we are proceeding with the proposed rule and policy changes dealing with best execution along with some other changes, including one related to the electronic audit trail provisions. We intend to propose amendments dealing with trade-through protection and rules related to access to marketplaces by issuing separate requests for comment in the coming months.

We received nineteen comment letters in response to the request for comments published in April 2007. We have considered the comments received and thank all commenters for their submissions. A list of those who submitted comments, as well as a summary of comments pertaining to best execution and our responses to them, are attached as Appendix A to this Notice.

1. Best Execution

At this time, the CSA are publishing the Amendments dealing with best execution in their final form.

Based on the feedback to Concept Paper 23-402 Best execution and soft dollar arrangements{2}, the CSA proposed changes in April 2007 to the best execution requirements in NI 23-101, which are consistent with existing obligations in the Universal Market Integrity Rules (UMIR). At the same time, IIROC, then RS, proposed parallel amendments to the best execution obligations outlined in the rules and the related policies under UMIR.

The changes proposed by the CSA created a definition of best execution and imposed a best execution obligation that requires dealers and advisers to use reasonable efforts to achieve best execution. The proposed changes to 23-101CP clarified that the obligation of best execution goes beyond price to include other elements such as:

• speed of execution,

• certainty of execution, and

• the overall cost of the transaction.

The proposed changes to 23-101CP also clarified that the application of the best execution definition will vary depending on the specific circumstances, and also, on who is responsible for obtaining best execution. Part 4 of 23-101CP also reiterates that where a security trades on multiple marketplaces, it does not require dealers to maintain access to all marketplaces. To achieve best execution, a dealer should assess whether it is appropriate to consider all marketplaces, both within and outside of Canada, upon which the security is traded.

Since publication in April 2007, we have clarified some of the language in NI 21-101 and NI 23-101 and the related companion policies concerning best execution, with no substantive or material changes to the proposed amendments published with the Joint Notice. Specifically, we have clarified that:

• A dealer is required to make reasonable efforts to use facilities providing information regarding orders and trades to satisfy the "reasonable efforts" test for the best execution obligation.{3}

• To achieve best execution, a dealer or adviser should be able to demonstrate that it has abided by its best execution policies and procedures. We have further explained that these policies and procedures should describe how the dealer or adviser evaluates whether best execution was obtained and should be regularly and rigorously reviewed.{4}

• Policies and procedures for seeking best execution should include the requirement to evaluate whether taking steps to access orders on a specific marketplace is appropriate under the circumstances.{5}

• Dealers should include in their best execution policies and procedures a regular assessment of whether it is appropriate to consider ATSs in Canada that trade foreign exchange-traded securities as well as the foreign markets upon which these securities trade.{6}

We have decided to postpone the implementation of the proposed best execution reporting requirements for marketplaces and dealers due to intervening market developments. We intend to republish these proposed amendments and when we do, we will include a discussion of the comments received in response to the Joint Notice and our responses. We note by way of summary, however, that commenters were generally supportive of the proposed reporting requirements. There were some mixed views on specific aspects of the reporting requirements, such as spread-based statistics and securities traded on only one marketplace. Comment letters received have been posted on the OSC website (www.osc.gov.on.ca).

IIROC will be publishing a notice regarding its proposed amendments to UMIR relating to best execution shortly. These UMIR amendments are expected to come into force on September 12, 2008.

2. Trade-through Protection

The Joint Notice proposed a framework for trade-through protection that would place an obligation on marketplaces to protect all visible, better-priced orders that are immediately and automatically executable. For additional information, please refer to the Joint Notice.

Commenters were largely supportive of the framework for a trade-through rule at the marketplace level that extended to the full depth-of-book. Consequently, the CSA intend to obtain feedback by publishing for comment proposed amendments to NI 23-101 introducing trade-through protection in the coming months. A full summary of comments and CSA responses pertaining to the trade-through proposal will be published at that time.

3. Regulation of Sponsored Access to Marketplaces

Also published with the Joint Notice were changes that proposed additional requirements on access by "dealer-sponsored" participants to marketplaces (i.e. direct market access). For additional information on the proposed amendments relating to access, please refer to the Joint Notice and related proposed amendments to NI 23-101.

At the same time, IIROC, then RS, published proposed amendments to the UMIR in order to be consistent with the proposed CSA changes. In response to comments received, the CSA and IIROC are examining the proposed amendments and intend to re-publish a revised proposal for comment. The full summary of comments and CSA responses pertaining to the regulation of access to marketplaces will be published at that time. Commenters were generally supportive of the training requirements for dealer-sponsored participants. However, they expressed concern about requiring clients to sign an agreement with the regulation services provider. The CSA, in revising the proposal, will take these comments into account.

4. Electronic Audit Trail

Part 11 of NI 23-101 imposes obligations on dealers and inter-dealer bond brokers to record and report in electronic form certain information regarding orders and trades. Amendments have been made to Part 11 of NI 23-101 and the related Part 8 of 23-101CP that clarify the record keeping requirements for dealers and inter-dealer bond brokers with no substantive changes being made to the underlying electronic trail requirements.

The proposed amendments published in April 2007 included a reference to the implementation of a specified "electronic form" by the securities regulatory authority, regulation services provider or self-regulatory entity (i.e. the TREATS initiative). This reference has not been included in the Amendments. We have also removed the reference to the intended implementation date (January 1, 2010). We will be publishing a joint notice with the self-regulatory organizations that provides an update on the current status of the TREATS initiative and the proposed next steps.

5. Other Changes

The Amendments also include:

(a) minor changes to the definitions of "foreign exchange-traded security", "member", "recognized exchange", "subscriber" and "user"{7};

(b) changes to Parts 7 and 8 of NI 21-101 to ensure consistency{8}; and

(c) changes to require ATSs to report material systems failuresy{9}.

We have left the references relating to the information vendor in Parts 7 and 8 of NI 21-101 as they currently exist. Specifically, the references to the "standards set by the regulation services provider" have not been removed. We will re-examine this decision in the context of the trade-through protection proposal.

III. QUESTIONS

Questions may be referred to any of:

Tracey Stern	Susan Greenglass
Ontario Securities Commission	Ontario Securities Commission
(416) 593-8167	(416) 593-8140
Sonali GuptaBhaya	Serge Boisvert
Ontario Securities Commission	Autorité des marchés financiers
(416) 593-2331	(514) 395-0337 X4358
Lorenz Berner	Doug Brown
Alberta Securities Commission	Manitoba Securities Commission
(403) 355-3889	(204) 945-0605
Tony Wong
British Columbia Securities Commission
(604) 899-6764

For specific questions on the electronic audit trail:

{1} (2007) 30 OSCB (Supp-3).

{2} (2005) 28 OSCB 1362.

{3} Amendments to s. 4.3 of NI 23-101 and ss. 4.1(8) of 23-101CP.

{4} Amendment to ss. 4.1(3) of 23-101CP.

{5} Amendment to ss. 4.1(5) of 23-101CP.

{6} Amendment to ss. 4.1(6) of 23-101CP.

{7} Amendments to s. 1.1 of NI 21-101.

{8} Amendments to s. 7.5, 8.3 and 8.5 of NI 21-101.

{9} Amendment to s. 12.2 of NI 21-101.

 

APPENDIX A

Summary of Comments with CSA Responses and List of Respondents

I. Summary of Comments to Questions and CSA Responses

Question 15: Are there other considerations that are relevant?
Comments			CSA Responses
Four commenters stated that they believe the key elements of best execution were correctly identified in the Joint Notice and sufficiently cover the considerations related to best execution.			We believe that it is important to retain a very broad description to allow dealers the necessary flexibility to make the assessment of best execution.
The following additional considerations were suggested by commenters:			The definition requires an assessment of the "most advantageous execution terms reasonably available under the circumstances". The list of elements identified in 23-101CP that may be considered in seeking best execution is not exhaustive, but the CSA have identified four key elements (i.e. price, speed of execution, certainty of execution and overall cost of the transaction) that should be considered. In addition, these four elements are broad and may encompass more specific considerations.
•	Anonymity;
•	The overall cost factor should include information leakage costs and systems costs of having to split a trade into multiple transactions and then reconstituting it;
•	consideration of risk management; and
•	overall portfolio goals.
A few commenters suggested a principle-based best execution rule where dealers can demonstrate that the objectives of their clients are being met through documented policies, procedures, and practices. Some commenters called for specific guidelines as to how to systematically achieve best execution for clients and how to manage the investment process to minimize potential conflicts of interest.			Best execution is a principles-based obligation. We are of the view that specific guidelines would unfairly constrain dealers and advisers from assessing what steps are necessary to comply.
One commenter requested clarification regarding commission rates that encompass investment decision-making services used by an adviser with the objective of maximizing a client's portfolio value in view of best execution, and suggested 23-101CP should include fees in order to address the benefits of permitted investment decision-making services (research).			Proposed National Instrument 23-102 Use of Client Brokerage Commissions as Payment for Order Execution Services or Research Services would require an adviser to make a good faith determination that the commission paid is reasonable in relation to the value of goods and services received. Services included in a commission payment may be evaluated in light of the overriding duty of best execution.
Question 16: How does the multiple marketplace environment and broadening the description of best execution impact small dealers?
The majority of commenters that responded to this question believe that a multiple marketplace environment will place a great financial burden on smaller dealers, in part through increased costs of technologies to route orders, as well as compliance costs.			We recognize that the introduction of multiple marketplaces affects all dealers with respect to the way they meet their best execution obligation. The changes to best execution confirm the current obligations imposed on all dealers that are marketplace participants (dealer that is a member of an exchange, a user of a quotation and trade reporting system or a subscriber of an ATS) by UMIR. For those dealers that are not marketplace participants and access marketplaces through another dealer, a broader best execution obligation enables them to take more factors into account.
However, another commenter contended that best execution is easily achievable for small dealers since trade access vendors have built solutions to provide smart routing of orders and small dealers are not required to build costly technology solutions.
Finally another commenter remarked that broadening the definition of best execution will be beneficial to smaller dealers in that they will be allowed to pursue niche strategies that target the needs of a specific client class and increase the number of execution options/strategies to investors. This commenter suggested that the impact of multiple marketplaces on small dealers can be mitigated through the interconnection of marketplaces and by applying a de-minimis standard so that these dealers will only need to contemplate marketplaces that have attained a significant presence in the market.
Question 17: Should the best execution obligation be the same for an adviser as a dealer where the adviser retains control over trading decisions or should the focus remain on the performance of the portfolio? Under what circumstances should the best execution obligation be different?
Five commenters were of the view that there should be no difference in the best execution obligation for an adviser who retains control over trading decisions.			The inclusion of advisers is a codification of existing obligations applicable to advisers. 23-101CP indicates that the considerations may be different for advisers than for dealers and only provides some high level principles. In addition, if an adviser directly accesses a marketplace, then the factors applicable to dealers may also apply.
Four commenters stated that there is no reason to impose best execution requirements on the adviser. Some of these commenters cited that the best execution obligation for an adviser should remain on a portfolio basis because it is better aligned with an adviser's objective to maximize a client's overall portfolio value.			If an adviser accesses marketplaces using "dealer-sponsored access", the adviser maintains its best execution obligation to its clients and the dealer providing the direct market access has the best execution obligation to its client, the adviser.
A couple of commenters were of the view that the dealers that execute transactions for advisers should remain responsible for the best execution of their clients' orders.
Question 18: Are there any other areas of cost or benefit not covered by the CBA?
Commenters suggested the following points be considered in the CBA:			Dealers are likely to incur costs when connecting to marketplaces. However, the costs are related to market-driven changes and are not incremental costs arising from the proposed amendments. As such they are beyond the scope of the cost-benefit analysis.
•	The cost and time that dealers incur in order to ensure that they are able to connect to the markets;
•	The costs of implementation (i.e. development/data storage) separately from the costs of collecting and maintaining the data; and
•	The costs incurred by dealers will be passed on to advisers and smaller advisers may be more affected as they do not have the same economies of scale as larger advisers.
General Comments
One commenter suggested that having dealers consider all marketplaces within and outside of Canada in making a best execution analysis is too broad and that the requirement should be refined to apply to situations where a dealer is currently accessing the foreign market.			We note that the obligation with respect to considering all marketplaces, whether within or outside Canada, currently exists. The Amendments merely clarify the language of the existing obligation.
Requests for Clarification
Further clarity on the following was requested:
Whether a market participant's "best execution" obligation (which is primarily driven by obtaining the "best price") is consistent with the participant's trade-through obligations under the definition provided by the CSA.			A market participant's best execution obligation must operate in tandem with its trade-through obligation. The decision of how and where to trade is determined by the particulars of the order and needs of the client but all best-priced orders must be dealt with at the time of execution. When proposed amendments are published dealing with trade through protection, in order to ensure these concepts work together, we will propose certain tools that allow different trades to be carried out simultaneously.
What is the "consolidated market display", who is going to provide it, is there going to be a charge for this service and how is the consolidated market display going to be provided to the public?			The CSA are currently examining applications to be the information processor. For more information, see CSA Staff Notice 21-306 Notice of Filing of Forms 21-101F5 Initial Operation Report for Information Processor published on April 20, 2007.{10}

II. List of Respondents

1. Bloomberg Tradebook Canada Company

2. BMO Financial Group

3. Canadian Security Traders Association Inc.

4. CNQ

5. CPP Investment Board

6. egX Canada

7. Highstreet Asset Management Inc.

8. Investment Industry Association of Canada

9. ITG Investment Technology Group

10. Liquidnet Canada Inc.

11. Merrill Lynch Canada Inc.

12. Perimeter Markets Inc.

13. Raymond James Ltd.

14. RBC Asset Management Inc.

15. RBC Dominion Securities Inc.

16. Scotia Capital Inc.

17. TD Asset Management Inc.

18. TD Newcrest

19. TSX Group Inc.

AMENDMENTS TO NATIONAL INSTRUMENT 21-101

MARKETPLACE OPERATION

PART 1 AMENDMENT

1.1 Amendment

(1) This Instrument amends National Instrument 21-101 Marketplace Operation.

(2) Section 1.1 is amended:

(a) in the definition of "foreign exchange-traded security":

(i) by striking out "only" wherever it appears; and

(ii) by adding "and is not listed on an exchange or quoted on a quotation and trade reporting system in Canada" after "International Organization of Securities Commissions";

(b) by repealing the definition of "member" and substituting the following:

""member" means, for a recognized exchange, a person or company

(a) holding at least one seat on the exchange, or

(b) that has been granted direct trading access rights by the exchange and is subject to regulatory oversight by the exchange,

and the person or company's representatives;";

(c) in paragraph (b) of the definition of "recognized exchange" by adding "or authorized by the securities regulatory authority" after "as a self-regulatory organization";

(d) in the definition of "subscriber" by adding ", and the person or company's representatives" after "orders on the ATS";

(e) in the definition of "transaction fee" by striking out "transaction" and substituting "trading"; and

(f) in the definition of "user" by adding ", and the person or company's representatives" after "on the recognized quotation and trade reporting system".

(3) Section 7.5 is amended by striking out "and timely" and by adding "in real-time" after "consolidated feed".

(4) Part 8 is amended:

(a) in section 8.3 by striking out "a" after "produce" and substituting "an accurate"; and

(b) by repealing section 8.5 and substituting:

"8.5 Filing Requirements for the Information Processor

(1) The information processor shall file, within 30 days after the end of each calendar quarter, the process and criteria for the selection of government debt securities, as applicable, and designated corporate debt securities and the list of government debt securities, as applicable, and designated corporate debt securities.

(2) The information processor shall file, within 30 days after the end of each calendar year, the process to communicate the designated securities to the marketplaces, inter-dealer bond brokers and dealers providing the information as required by the Instrument, including where the list of designated securities can be found."

(5) Part 10 is amended:

(a) in the title by striking out "Transaction Fees" and substituting "Trading Fees", and

(b) by repealing section 10.1 and substituting the following:

10.1 Disclosure of Trading Fees by Marketplaces -- A marketplace shall make its schedule of trading fees publicly available.

(6) Part 11 is amended:

(a) in section 11.1 by adding "in electronic form" after "business";

(b) in subsection 11.2(1),

(i) by striking out "In addition to" and substituting "As part of";

(ii) by striking out "keep" and substituting "include"; and

(iiii) by adding "in electronic form" after "information";

(c) in paragraph 11.2(1)(b) by striking out ", in electronic form,";

(d) by repealing subsections 11.2(2) and 11.2(3); and

(e) by adding the following section after section 11.2:

"11.2.1 Transmission in Electronic Form -- A marketplace shall transmit

(a) to a regulation services provider, if it has entered into an agreement with a regulation services provider in accordance with NI 23-101, the information required by the regulation services provider, within ten business days, in electronic form; and

(b) to the securities regulatory authority the information required by the securities regulatory authority under securities legislation, within ten business days, in electronic form.".

(7) Section 12.2 is amended by striking out "Paragraphs 12.1(b) and 12.1(c) do" and substituting "Paragraph 12.1(b) does".

1.2 Effective Date -- This Instrument comes into effect on September 12, 2008.

AMENDMENTS TO COMPANION POLICY 21-101CP -- TO NATIONAL INSTRUMENT 21-101

MARKETPLACE OPERATION

PART 1 AMENDMENT

1.1 Amendment

(1) This amends Companion Policy 21-101CP -- to National Instrument 21-101 Marketplace Operation.

(2) Section 1.2 is amended by striking out the last sentence and substituting "A security that is listed on a foreign exchange or quoted on a foreign quotation and trade reporting system, and is not listed or quoted on a domestic exchange or quotation and trade reporting system, falls within the definition of "foreign exchange-traded security".".

(3) Subsection 5.1(3) is amended by striking out the last sentence and substituting the following:

"For the purpose of sections 7.1, 7.3, 8.1 and 8.2 of the Instrument, the Canadian securities regulatory authorities do not consider special terms orders that are not immediately executable or that trade in special terms books, such as all-or-none, minimum fill or cash or delayed delivery, to be orders that must be provided to an information processor or, if there is no information processor, to an information vendor for consolidation.".

(4) Part 9 is amended by repealing subsections 9.1(3) and 9.1(4).

(5) Section 12.1 is amended by:

(a) striking out all references to "transaction fees" and substituting "trading fees"; and

(b) adding after the first sentence "The schedule should include all trading fees and provide the minimum and maximum fees payable for certain representative transactions.".

1.2 Effective Date -- This policy comes into effect on September 12, 2008.

AMENDMENTS TO NATIONAL INSTRUMENT 23-101

TRADING RULES

PART 1 AMENDMENT

1.1 Amendment

(1) This Instrument amends National Instrument 23-101 Trading Rules.

(2) Section 1.1 is amended by adding the following definition:

""best execution" means the most advantageous execution terms reasonably available under the circumstances;".

(3) Section 4.2 is repealed and the following is substituted:

"4.2 Best Execution -- A dealer and an adviser must make reasonable efforts to achieve best execution when acting for a client.

4.3 Order and Trade Information -- To satisfy the requirements in section 4.2, a dealer or adviser shall make reasonable efforts to use facilities providing information regarding orders and trades.".

(4) Section 5.1 is amended by adding "for a regulatory purpose" after "trading in a particular security".

(5) Part 11 is amended by:

(a) repealing subsections 11.2(5) and (6); and

(b) adding the following after section 11.2:

"11.3 Transmission in Electronic Form -- A dealer and inter-dealer bond broker shall transmit

(a) to a regulation services provider the information required by the regulation services provider, within ten business days, in electronic form; and

(b) to the securities regulatory authority the information required by the securities regulatory authority under securities legislation, within ten business days, in electronic form.".

1.2 Effective Date -- This Instrument comes into effect on September 12, 2008.

AMENDMENTS TO COMPANION POLICY 23-101CP -- TO NATIONAL INSTRUMENT 23-101

TRADING RULES

PART 1 AMENDMENT

1.1 Amendment

(1) This amends Companion Policy 23-101CP -- to National Instrument 23-101 Trading Rules.

(2) The Policy is amended by adding the following Part after Part 1:

"Part 1.1 -- Definitions

1.1.1 Definition of best execution --

(1) In the Instrument, best execution is defined as the "most advantageous execution terms reasonably available under the circumstances". In seeking best execution, a dealer or adviser may consider a number of elements, including:

a. price;

b. speed of execution;

c. certainty of execution; and

d. the overall cost of the transaction.

These four broad elements encompass more specific considerations, such as order size, reliability of quotes, liquidity, market impact (i.e. the price movement that occurs when executing an order) and opportunity cost (i.e. the missed opportunity to obtain a better price when an order is not completed at the most advantageous time). The overall cost of the transaction is meant to include, where appropriate, all costs associated with accessing an order and/or executing a trade that are passed on to a client, including fees arising from trading on a particular marketplace, jitney fees (i.e. any fees charged by one dealer to another for providing trading access) and settlement costs. The commission fees charged by a dealer would also be a cost of the transaction.

(2) The elements to be considered in determining "the most advantageous execution terms reasonably available" (i.e. best execution) and the weight given to each will vary depending on the instructions and needs of the client, the particular security, the prevailing market conditions and whether the dealer or adviser is responsible for best execution under the circumstances. Please see a detailed discussion below in Part 4.".

(3) Part 4 is amended by repealing subsections 4.1(1) to 4.1(8) and substituting the following:

"4.1 Best Execution --

(1) The best execution obligation in Part 4 of the Instrument does not apply to an ATS that is registered as a dealer provided that it is carrying on business as a marketplace and is not handling any client orders other than accepting them to allow them to execute on the system. However, the best execution obligation does otherwise apply to an ATS acting as an agent for a client.

(2) Section 4.2 of the Instrument requires a dealer or adviser to make reasonable efforts to achieve best execution (the most advantageous execution terms reasonably available under the circumstances) when acting for a client. The obligation applies to all securities.

(3) Although what constitutes "best execution" varies depending on the particular circumstances, to meet the "reasonable efforts" test, a dealer or adviser should be able to demonstrate that it has, and has abided by, its policies and procedures that (i) require it to follow the client's instructions and the objectives set, and (ii) outline a process designed to achieve best execution. The policies and procedures should describe how the dealer or adviser evaluates whether best execution was obtained and should be regularly and rigorously reviewed. The policies outlining the obligations of the dealer or adviser will be dependent on the role it is playing in an execution. For example, in making reasonable efforts to achieve best execution, the dealer should consider the client's instructions and a number of factors, including the client's investment objectives and the dealer's knowledge of markets and trading patterns. An adviser should consider a number of factors, including assessing a particular client's requirements or portfolio objectives, selecting appropriate dealers and marketplaces and monitoring the results on a regular basis. In addition, if an adviser is directly accessing a marketplace, the factors to be considered by dealers may also be applicable.

(4) Where securities listed on a Canadian exchange or quoted on a Canadian quotation and trade reporting system are inter-listed either within Canada or on a foreign exchange or quotation and trade reporting system, in making reasonable efforts to achieve best execution, the dealer should assess whether it is appropriate to consider all marketplaces upon which the security is listed or quoted and where the security is traded, both within and outside of Canada.

(5) In order to meet best execution obligations where securities trade on multiple marketplaces in Canada, a dealer should consider information from all appropriate marketplaces (not just marketplaces where the dealer is a participant). This does not mean that a dealer must have access to real-time data feeds from each marketplace. However, its policies and procedures for seeking best execution should include the process for taking into account order and/or trade information from all appropriate marketplaces and the requirement to evaluate whether taking steps to access orders is appropriate under the circumstances. The steps to access orders may include making arrangements with another dealer who is a participant of a particular marketplace or routing an order to a particular marketplace.

(6) For foreign exchange-traded securities, if they are traded on an ATS in Canada, dealers should include in their best execution policies and procedures a regular assessment of whether it is appropriate to consider the ATS as well as the foreign markets upon which the securities trade.

(7) Section 4.2 of the Instrument applies to registered advisers as well as registered dealers that carry out advisory functions but are exempt from registration as advisers.

(8) Section 4.3 of the Instrument requires that a dealer or adviser make reasonable efforts to use facilities providing information regarding orders and trades. These reasonable efforts refer to the use of the information displayed by the information processor or, if there is no information processor, an information vendor.".

(4) Section 5.1 is amended by adding the following sentences before the first sentence:

"Section 5.1 of the Instrument applies when a regulatory halt has been imposed by a regulation services provider, a recognized exchange, recognized quotation and trade reporting system or an exchange or quotation and trade reporting system that has been recognized for the purposes of the Instrument and NI 21-101. A regulatory halt, as referred to in section 5.1 of the Instrument, is one that is imposed to maintain a fair and orderly market, including halts related to a timely disclosure policy, or because there has been a violation of regulatory requirements.".

(5) Part 8 is amended by:

(a) repealing section 8.2 and substituting the following:

"8.2 Transmission of Information to a Regulation Services Provider -- Section 11.3 of the Instrument requires that a dealer and an inter-dealer bond broker provide to the regulation services provider information required by the regulation services provider, within ten business days, in electronic form. This requirement is triggered only when the regulation services provider sets requirements to transmit information."; and

(b) repealing section 8.3 and substituting the following:

"8.3 Electronic Form -- Subsection 11.3 of the Instrument requires any information required to be transmitted to the regulation services provider and securities regulatory authority in electronic form. Dealers and inter-dealer bond brokers are required to provide information in a form that is accessible to the securities regulatory authorities and the regulation services provider (for example, in SELECTR format).".

1.2 Effective Date -- This Policy comes into effect on September 12, 2008.

{10} (2007) 30 OSCB (Supp-3).