Mutual Reliance Review System for Exemptive Relief Applications -- Registered investment dealer exempted from section 228 of the Regulation for recommendations in respect of securities of its parent bank, subject to conditions -- Decision permits the registrant to make recommendations in the circumstances contemplated by subsection 228(2) of the Regulation, but without having to comply with the requirement for (comparative) information, similar to that set forth in respect of the bank, for a substantial number of other persons or companies that are in the industry or business of the bank, to the extent that such comparative information is not known, or ascertainable, by the registrant -- By incorporating other requirements from subsection 228(2), the decision also provides that the space and prominence restrictions in clause 228(2)(d) only relate to the information for which there is such comparative information.
Applicable Ontario Statutory Provisions
Ontario Regulation 1015, R.R.O. 1990, as am., ss. 228 and 233.
April 9, 2007
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO, NOVA SCOTIA AND NEWFOUNDLAND
AND LABRADOR (the Jurisdictions)
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
BMO NESBITT BURNS INC. (the Filer) AND
BANK OF MONTREAL (the Bank)
MRRS DECISION DOCUMENT
The local securities regulatory authority or regulator (the Decision Maker) in each of the Jurisdictions has received an application from the Filer for a decision under the securities legislation (the Legislation) of the Jurisdiction that the provisions (the Recommendation Prohibition) in the Legislation which provide that no registrant shall, in any medium of communication, recommend, or cooperate with any person [or company] in the making of any recommendation, that the securities of the registrant, or a related issuer of the registrant, or, in the course of a distribution, the securities of a connected issuer of the registrant, be purchased, sold or held, shall not, in certain circumstances, apply to the Filer, in respect of securities of its parent, the Bank;
Under the Mutual Reliance Review System for Exemptive Relief Applications
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) this MRRS decision document evidences the decision of each Decision Maker.
Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless they are defined in this decision.
This decision is based on the following facts represented by the Filer:
1. The Filer, a corporation incorporated under the laws of Canada, has its head office in Ontario.
2. The Bank is a Canadian chartered bank named in Schedule I of the Bank Act (Canada) (the Bank Act).
3. The Filer is an indirect wholly-owned subsidiary of the Bank and, as such, the Bank is a "related issuer" of the Filer for the purposes of the Recommendation Prohibition.
4. The Filer is registered in Ontario as a dealer in the categories of broker and investment dealer, and is registered under the Legislation of each of the Jurisdictions in an equivalent category.
5. The Filer acts as a full-service investment dealer and provides equity research report coverage on over 500 issuers, including the Bank, and all other banks currently named in Schedule 1 of the Bank Act.
6. As a member of the Investment Dealers Association of Canada (the IDA), the Filer is obliged to comply with the IDA Policy 11 Research Restrictions and Disclosure Requirements (IDA Policy 11).
7. Guideline No. 3 of IDA Policy 11 states: "Members should adopt standards of research coverage that include, at a minimum, the obligation to maintain and publish current financial estimates and recommendations on securities followed, and to revisit such estimates and recommendations within a reasonable time following the release of material information by an issuer or the occurrence of other relevant events."
8. In each of the Jurisdictions, the Legislation provides an exemption (the Statutory Exemption) from the Recommendation Prohibition for a recommendation (a Recommendation) to purchase, sell or hold securities of an issuer, that is contained in a circular, pamphlet or similar publication (a Report) that is published, issued or sent by a registrant and is of a type distributed with reasonable regularity in the ordinary course of its business, provided that the Report:
(a) includes in a conspicuous position, in type not less legible than that used in the body of the Report:
(i) a full and complete statement (a Relationship Statement) of the relationship or connection between the registrant and the issuer of the securities; and
(ii) a full and complete statement of the obligations of the registrant under the Recommendation Prohibition and the Statutory Exemption;
(b) includes information (Comparative Information) similar to that set forth in respect of the issuer for a substantial number of other persons or companies (Competitors) that are in the industry or business of the issuer; and
(c) does not give materially greater space or prominence to the information set forth in respect of the issuer than to the information set forth in respect of any other person or company described therein.
9. So long as the Filer remains a related issuer of the Bank, the Filer cannot rely on the Statutory Exemption from the Recommendation Prohibition, to publish in a Report any Recommendation with respect to securities of the Bank, including a revision to a previous Recommendation, in response to:
(a) the release of interim financial statements of the Bank or information concerning such financial statements, or
(b) the release of information, or the occurrence of an event, that might reasonably be interpreted to have, or possibly have, a significant effect on the value of any securities issued by the Bank, or the continued validity of previously published financial estimates or recommendation issued by the Filer in respect of any securities issued by the Bank,
unless, at the relevant time, the Filer has been able to ascertain, and is able to include in the Report, Comparative Information for a substantial number of Competitors of the Bank, and also satisfy the requirements of the Statutory Exemption relating to space and prominence of information, referred to in paragraph 8(c), above.
10. The Filer will be precluded from including in any Report Comparative Information for a substantial number of Competitors of the Bank if, at the relevant time:
(a) there is no Comparative Information for any Competitors that is known, or ascertainable, by the Filer, or
(b) there is no Comparative Information for a substantial number of Competitors of the Bank that is known, or ascertainable, by the Filer.
Each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the decision has been met.
The decision of the Decision Makers under the Legislation is that the Recommendation Prohibition shall not apply to Recommendations of the Filer in respect of securities of the Bank that are made by the Filer in a Report, in response to:
(i) the release of interim financial statements of the Bank or information concerning such financial statements, or
(ii) the release of information, or the occurrence of an event, that might reasonably be interpreted to have, or possibly have, a significant effect on the value of any securities issued by the Bank, or the continued validity of previously published financial estimates or recommendation issued by the Filer in respect of any securities issued by the Bank,
if, at the relevant time, Comparative Information for a substantial number of Competitors of the Bank is not known, or ascertainable, by the Filer, provided that:
(A) the Report includes in a conspicuous position in a type not less legible than that used in the body of the Report:
(I) a Relationship Statement concerning the relationship or connection between the Filer and the Bank; and
(II) a full and complete statement of the obligations of the Filer under the Recommendation Prohibition and this Decision;
(B) for any information in respect of the Bank that is included in the Report, for which there is Comparative Information for any Competitors that is known, or ascertainable, by the Filer, the Report includes such Comparative Information;
(C) for the information referred to in paragraph (B) above, the Report does not give greater prominence to the information in respect of the Bank than to the Comparative Information for any of the Competitors of the Bank that is included in the Report; and
(D) the decision shall terminate on the day that is two years after the date of this decision.