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Jove Investment Management Inc. and The Gartman Letter, L.C. - s. 80 of the CFA
Headnote
Section 80 of the Commodity Futures Act (Ontario) -- relief from the adviser registration requirements of subsection 22(1)(b) of the CFA granted to sub-adviser not ordinarily resident in Ontario in respect of advice regarding trades in commodity futures contracts and commodity futures options, subject to certain terms and conditions. Relief mirrors exemption available in section 7.3 of OSC Rule 35-502 -- Non-Resident Advisers made under the Securities Act (Ontario).
Statutes Cited
Commodity Futures Act, R.S.O. 1990, c. C.20, as am., ss. 22(1)(b), 80.
Securities Act, R.S.O. 1990, c. S.5, as am. -- Rule 35-502 -- Non Resident Advisers.
IN THE MATTER OF
THE COMMODITY FUTURES ACT,
R.S.O. 1990, CHAPTER C.20, AS AMENDED
(the CFA)
AND
IN THE MATTER OF
JOVE INVESTMENT MANAGEMENT INC.
AND
THE GARTMAN LETTER, L.C.
ORDER
(Section 80 of the CFA)
UPON the application (the Application) of Jove Investment Management Inc. (Jove) and The Gartman Letter L.C. (the Sub-Adviser) to the Ontario Securities Commission (the Commission) for an order, pursuant to section 80 of the CFA, that neither the Sub-Adviser nor any of its directors, officers and employees acting on its behalf as an adviser (collectively, the Representatives) shall be subject to the adviser registration requirement in subsection 22(1)(b) of the CFA in respect of advice regarding trades in commodity futures contracts and commodity futures options provided on a sub-advisory basis to Jove (the Proposed Advisory Services).
AND UPON considering the Application and the recommendation of the staff of the Commission;
AND UPON Jove having represented to the Commission the following:
1. Jove is organized under the laws of Ontario. Jove is registered in Ontario as an adviser in the categories of investment counsel and portfolio manager and as a commodity trading counsel and commodity trading manager under the CFA. Jove's head office is located in Toronto, Ontario.
2. The Sub-Adviser is a limited liability company organized under the laws of Virginia, U.S. The Sub-Adviser is exempt from registration as an adviser in the U.S. The Sub-Adviser's head office is located in Suffolk, Virginia, U.S.A.
3. Pursuant to the terms of an investment management agreement, Jove has been retained to provide investment advice to the Canadian Imperial Bank of Commerce (CIBC) with respect to a principal protected note that will be offered to potential investors (the CIBC Note). The Agreement will grant Jove the authority to appoint a sub-adviser, provided certain conditions are met.
4. In addition to the CIBC Note, Jove may in the future provide advice to other financial institutions that are offering a principal protected note or security to prospective investors (the Other Notes) or to other investment funds (the Funds).
5. Jove intends to retain the services of the Sub-Adviser with respect to the Proposed Advisory Services it gives to CIBC and potentially certain Other Notes or Funds in the future.
6. Jove will enter into a sub-advisory agreement (the Sub-Advisory Agreement) with the Sub-Adviser, whereby the Sub-Adviser will provide investment advice and portfolio management services to Jove in respect of the Proposed Advisory Services.
7. The Sub-Advisory Agreement, or other future agreements with respect to advice provided to Other Notes or Funds, will set out the obligations and duties of the Sub-Adviser. Jove will contractually agree to be responsible for any loss that arises out of the failure of the Sub-Adviser:
(i) to exercise its powers and discharge its duties honestly, in good faith and in the best interests of Jove, CIBC, the issuer of the Other Notes or the Funds respectively; or
(ii) to exercise the degree of care, diligence and skill that a reasonably prudent person would exercise in the circumstances;
(collectively, the Standard of Care) for which responsibility cannot be waived.
8. The Sub-Adviser will only provide the Proposed Advisory Services so long as Jove is registered in Ontario as an adviser in the categories of investment counsel and portfolio manager, and as a commodity trading manager under the CFA.
9. The offering documents of the CIBC Note, the Other Notes and the Funds will each disclose that Jove will be responsible for the Sub-Adviser's investment advice and to the extent applicable there may be difficulty in enforcing any legal rights against the Sub-Adviser as it is resident outside of Canada and all or a substantial portion of its assets are situated outside of Canada.
10. There is presently no rule under the CFA that provides exemption from the adviser registration requirement in paragraph 22(1)(b) of the CFA, for a person or company acting as an adviser to another registered adviser in respect of Commodity Futures that is similar to the exemption in section 7.3 of Commission Rule 35-502, Non-Resident Advisers, from the adviser registration requirement in section 25(1)(b) of the OSA.
AND UPON the Commission being satisfied that it would not be prejudicial to the public interest to do so;
IT IS ORDERED THAT, pursuant to section 80 of the CFA, neither the Sub-Adviser, nor any of its Representatives, shall be subject to the adviser registration requirement in subsection 22(1)(b) of the CFA in respect of the Proposed Advisory Services, provided that:
(a) Jove is registered under the CFA as an adviser in the category of commodity trading manager;
(b) the obligations and duties of the Sub-Adviser are set out in a Sub-Advisory Agreement with Jove;
(c) the Proposed Advisory Services will only be provided where Jove has contractually agreed with CIBC, the issuer of the Other Notes, or with the Funds, as applicable, to be responsible for any loss that arises out of the failure of the Sub-Adviser to meet the Standard of Care, and that such responsibility cannot be waived;
(d) the offering documents of the CIBC Note, the Other Notes and the Funds will disclose that:
(i) Jove will be responsible for any loss that arises as a result of the failure of the Sub-Adviser to meet the Standard of Care;
(ii) Jove will be responsible for any advice provided by the Sub-Adviser to the CIBC Note, the Other Notes or the Funds; and
(iii) there may be difficulty in enforcing any legal rights against the Sub-Adviser because it is resident outside of Canada and all or a substantial portion of its assets are situated outside of Canada;
(e) this Order shall terminate three years from the date hereof.
October 20, 2006.
"Wendell S. Wigle"
"David L. Knight"