BMO Nesbitt Burns Inc. et al.

Decision

Headnote

NP 11-203 -- Process for Exemptive Relief Applications in Multiple Jurisdictions -- Hybrid Application -- Filers request relief from the trade confirmation, client statement, statement of purchase and sale, and monthly statement requirements in securities laws where acting solely as execution-only brokers in the context of "give-up" trades -- Relief granted with respect to give-up trades for institutional customers provided that a give-up trade agreement is executed with institutional customer and clearing broker and that clearing broker agrees to provide the customers with statements which include give-up trade details.

Statutes Cited

Securities Act, R.S.O. 1990, c. S.5, as am., s. 36(1).

Instruments Cited

Multilateral Instrument 11-102 Passport System, s. 4.7(1).

National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, s. 14.14.

Citation: BMO Nesbitt Burns Inc., CIBC World Markets Inc., RBC Dominion Securities Inc., Scotia Capital Inc., and TD Securities Inc. , Re, 2011 ABASC 598

November 24, 2011

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ALBERTA, ONTARIO, SASKATCHEWAN,

AND NEWFOUNDLAND AND LABRADOR

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

BMO NESBITT BURNS INC.,

CIBC WORLD MARKETS INC.,

RBC DOMINION SECURITIES INC.,

SCOTIA CAPITAL INC.,

AND TD SECURITIES INC.

(the Filers)

DECISION

Background and Relief Requested

The securities regulatory authority or regulator in each of Alberta and Ontario (the Dual Exemption Decision Makers) has received an application from the Filers for a decision under the securities legislation of those jurisdictions for an exemption, in the context of Give-up Transactions (as defined below), from the requirement (the Statement of Account Requirement) that a dealer must deliver a statement of account to each client at least once every three months, or at the end of a month if the client has requested statements on a monthly basis or if a transaction was effected in the client's account during the month (the Dual Exemption).

The securities regulatory authority or regulator in each of Alberta, Saskatchewan, Ontario and Newfoundland and Labrador (the Coordinated Exemption Decision Makers) has received an application from the Filers for a decision under the securities legislation of those jurisdictions for an exemption, in the context of Give-up Transactions, from the requirement (the Trade Confirmation Requirement) that every registered dealer that has acted as principal or agent in connection with any purchase or sale of a security must promptly send by pre-paid mail or deliver to the client a written confirmation of the transaction (the Coordinated Exemption).

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

(a) the Alberta Securities Commission is the principal regulator for this application,

(b) 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, Saskatchewan, Manitoba, Québec, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland and Labrador, Northwest Territories, Nunavut and the Yukon Territory;

(c) this decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario; and

(d) this decision evidences the decision of each Coordinated Exemption Decision Maker.

Interpretation

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

Representations

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

1. Each Filer is registered as an investment dealer under the securities legislation of all provinces and territories of Canada, as a futures commission merchant under the Commodity Futures Act (Ontario) and The Commodity Futures Act (Manitoba) and as a derivatives dealer under the Derivatives Act (Québec).

2. Each Filer is a member of the Investment Industry Regulatory Organization of Canada (IIROC) and the TSX Venture Exchange, an approved participant of the Montreal Exchange and a participating organization of the Toronto Stock Exchange.

3. The head office of each Filer is located in Toronto, Ontario.

4. Each Filer acts as an executing and clearing broker for Give-up Transactions (as defined below) that involve the purchase or sale of options on equities or indexes (Securities) or of commodity futures contracts or commodity futures options (Futures Contracts) that are listed or traded on one or more marketplaces.

5. Give-up Transactions are purchases or sales of Securities or Futures Contracts by investors, each of whom is an "institutional customer" within the meaning of IIROC Dealer Member Rule 1.1, that have an existing relationship as a client with a clearing broker but wish to use the trade execution services of one or more executing brokers for the purpose of executing such purchases or sales (Subject Transactions). Under these circumstances, the executing broker will execute the Subject Transactions in accordance with the institutional client's instructions and then "give up" the Subject Transactions to the clearing broker for clearing, settlement and/or custody. The service provided by the executing broker is limited to trade execution only.

6. The clearing broker remains subject to applicable Trade Confirmation and Statement of Account Requirements (collectively, the Delivery Requirements) in respect of its institutional client in Give-up Transactions. The clearing broker maintains an account for the institutional client that is administered in accordance with the terms and conditions of the account documentation of the clearing broker that has been signed by the institutional client. For a Give-up Transaction, the institutional client does not sign account documentation with the executing broker, and the executing broker does not receive any money, securities, margin or collateral from the institutional client. The institutional client does, however, enter into an agreement with the executing broker and the clearing broker that governs their Give-up Transaction relationship (a Give-up Agreement).

7. Although each Filer is responsible for record-keeping, bookkeeping, custody and other administrative functions (Account Services) in respect of its own clients, it does not provide Account Services for execution-only customers in Give-up Transactions. Such Account Services remain the responsibility of those clients' clearing brokers.

8. Each Filer does, however, record in its own books and records and accounting system all Give-up Transactions that it executes, which generally comprise those Securities and Futures Contract positions held by it that are not allocated to any of its own institutional client accounts. The Filer communicates these unallocated positions to the relevant clearing brokers who either accept or reject the positions so allocated on behalf of their clients based on existing Give-Up Agreements. If a clearing broker rejects a proposed allocation, the Filer contacts the person who executed the trade to obtain clarifying instructions and then allocates the position in accordance with the instructions so received.

9. Each Filer prepares a monthly or transaction-by-transaction invoice detailing all Give-up Transactions (including the amount of any commission to the Filer for execution thereof) that the Filer conducted during the month for each institutional client under a Give-up Agreement. The Filer delivers such invoice to the clearing broker who then reconciles the Give-up Transactions with its own records.

10. Each Filer is, to the best of its knowledge, in compliance with all IIROC requirements relating to the maintenance of records of executed transactions.

11. Application of the Delivery Requirements to the Filers when they provide only trade execution services in respect of Give-up Transactions would:

(a) be duplicative and confusing because the required trade confirmations and statements of accounts to execution-only clients would capture only some, not all, of the information that would be contained in the trade confirmations and statements of account delivered to the same clients by their clearing brokers; and

(b) not be required to establish an audit trail or to facilitate reconciliation of Give-up Transactions as between a Filer and a clearing broker.

Decision

Each of the principal regulator, the securities regulatory authority or regulator in Ontario and the Coordinated Exemption Decision Makers is satisfied that the decision meets the test set out in the legislation of the jurisdiction for the relevant regulator or securities regulatory authority to make the decision.

The decision of the Dual Exemption Decision Makers under the Legislation is that the Dual Exemption is granted, and the decision of the Coordinated Review Decision Makers under the legislation of the jurisdiction is that the Coordinated Exemption is granted, provided that:

1. each Filer provides trade execution services in respect of Give-up Transactions only for institutional customers within the meaning of IIROC Dealer Member Rule 1.1;

2. each Filer enters into a Give-Up Agreement with the clearing broker and the institutional customer; and

3. the clearing broker has agreed to provide each institutional customer with written trade confirmations and statements of account that include information for any Subject Transaction.

For the Alberta Securities Commission:

"Glenda A. Campbell", QC
Vice-Chair
 
"Stephen Murison"
Vice-Chair