Under paragraph 4.1(1)(b) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations a firm registered in any jurisdiction of Canada must not permit an individual to act as a dealing, advising or associate advising representative of the registered firm if the individual is registered as a dealing, advising or associate advising representative of another firm registered in any jurisdiction of Canada. The Filers are affiliated entities and have valid business reasons for the individual to be registered with both firms. The Filers have policies in place to handle potential conflicts of interest. The Filers are exempted from the prohibition.
Applicable Legislative Provisions
National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, ss. 4.1, 13.4 and 15.1.
National Instrument 81-107 Independent Review Committee for Investment Funds.
September 10, 2015
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF ASTON HILL CAPITAL MARKETS INC. (AHCM) AND ASTON HILL ASSET MANAGEMENT INC. (AHAMI) (each a Filer and together, the Filers)
The regulator in the Jurisdiction (the Decision Maker) has received an application from the Filers for a decision under the securities legislation of the Jurisdiction (the Legislation) for relief from the restriction under paragraph 4.1(1)(b) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103), pursuant to section 15.1 of NI 31-103, to permit Darren Cabral (the Representative), who is currently registered as an advising representative of AHCM, to also be registered as an advising representative of AHAMI (the Dual Registration) (the Exemption Sought).
Terms defined in National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filers:
1. AHCM is registered as an investment fund manager in Ontario, Newfoundland and Labrador, and Quebec. AHCM is also registered as an adviser in the category of portfolio manager in Ontario. The head office of AHCM is located in Ontario.
2. AHAMI is registered as an adviser in the category of portfolio manager and as a dealer in the category of exempt market dealer in Ontario, Alberta, British Columbia, Manitoba, Quebec, New Brunswick, Newfoundland and Labrador, and Nova Scotia. AHAMI is also registered as an investment fund manager in Ontario, Newfoundland and Labrador, and Quebec. The head office of AHAMI is located in Ontario.
3. The Filers are affiliates. AHAMI is a wholly-owned subsidiary of Aston Hill Financial Inc. (Aston Hill) and Aston Hill owns 80% of the outstanding shares of AHCM. Aston Hill has the right to acquire the balance of the outstanding shares of AHCM that are not held by Aston Hill.
4. The Filers also share common officers and directors. There are approximately 5 individuals that act as permitted individuals for each of the Filers and certain of their affiliates, and one individual that acts as the chief compliance officer (CCO) for AHCM, AHAMI and another of their affiliates.
5. The Representative is currently registered with AHCM as an advising representative in Ontario where AHCM is registered in the category of portfolio manager. He also carries out the activities of a director and officer for AHCM in the category of permitted individual. If the Exemption Sought is granted, he will also be registered as an advising representative of AHAMI in Ontario only as all of the AHAMI funds are located in Ontario and the Representative will only be acting as an advising representative in respect of funds managed by AHAMI.
6. AHCM was established in 2013 through the acquisition of Connor, Clark & Lunn Capital Markets Inc. by Aston Hill. AHCM's main line of business is providing investment fund management and portfolio management services to the various closed-end funds managed by AHCM. AHCM also provides portfolio management services in a sub-advisory capacity to third-party asset managers.
7. AHAMI was established in 2000 under the laws of the Province of Ontario. AHAMI's main line of business is providing investment fund management and portfolio management services to the various investment funds managed by AHAMI. AHAMI also provides portfolio management services to accredited investors as defined in National Instrument 45-106 Prospectus Exemptions or permitted clients as defined in NI 31-103.
8. The Representative has acted as an advising representative -- portfolio manager with AHCM since July 6, 2010. In that capacity, he is involved in managing the investment portfolios of certain funds, structuring new products and monitoring existing products.
9. There are valid business reasons for the Representative's Dual Registration with both AHCM and AHAMI. Specifically, Aston Hill distributes its open-end funds through AHAMI and its closed-end funds through AHCM. AHAMI plans to launch open-end funds similar to a closed-end fund that is currently managed by the Representative for AHCM that employs quantitative analysis and options. Accordingly, Aston Hill would like to utilize the skills of the Representative, and these quantitative analysis and options strategies which are currently unique to AHCM, in managing its open-end funds. AHAMI management believes that these open-end funds would benefit from employing such strategies and would be attractive to investors. It is intended that at AHAMI, the Representative will be responsible for the management of one or more funds that employ quantitative investment strategies and option strategies as permitted by National Instrument 81-102 Investment Funds or National Instrument 41-101 General Prospectus Requirements, as applicable.
10. The Filers have in place appropriate compliance and supervisory policies and procedures to monitor the conduct of the Representative and to address any conflicts of interest that may arise as a result of the Dual Registration. The Filers believe that they will be able to appropriately deal with any such conflicts. They currently have one individual, the CCO, who is dually registered as CCO with AHCM, AHAMI and one other affiliate. In addition, certain other individuals act as permitted individuals for AHCM and/or AHAMI and certain other of their affiliates. In these situations, the Filers have been able to deal with the potential of conflicts.
11. The Representative will be subject to supervision by, and subject to the applicable compliance requirements of, both Filers. Existing compliance and supervisory structures will apply depending on which regulatory entity has been engaged for advisory purposes.
12. Management of AHCM and AHAMI will ensure that the Representative will have sufficient time and resources to adequately serve both firms and their clients, and will limit the number of funds managed by each Filer that the Representative will advise as required.
13. The advising activities that will be provided to the funds managed by AHAMI by the Representative will not interfere with his responsibilities to either Filer.
14. In order to minimize any client confusion, the Filers will disclose the Dual Registration of the Representative, and the relationship between the Filers, to all applicable clients of each firm. This disclosure will be made in writing prior to the Representative providing portfolio management services to the applicable funds managed by each Filer. Specifically, in respect of any investment funds, this disclosure will typically be made in each fund's prospectus and/or annual information form.
15. The Filers do not share any clients and do not manage any of the same funds. As the Representative will be acting on behalf of specific investment funds (some managed by AHCM while others by AHAMI), each with their own objectives and strategies, client confusion will be minimized. The manager of the applicable investment funds is disclosed in each fund's prospectus and/or annual information form. In addition, the Representative will clearly understand which Filer he is acting on behalf of when he is advising each fund.
16. The Filers are affiliated entities and accordingly, the Dual Registration will not give rise to the conflicts of interest present in a similar arrangement involving unrelated, arm's length firms. The interests of the Filers are aligned, and as the Representative's role at AHCM and AHAMI would be beneficial to the business activities and interests of each of the Filers, the potential for conflicts of interests arising from the Dual Registration are remote.
17. The Filers are not in default of any requirement of securities legislation in any jurisdiction of Canada.
18. Each of the Filers are subject to the restrictions and requirements in Part 13 of NI 31-103 regarding conflict of interest matters, except as follows. Section 13.4 of NI 31-103 does not apply to either of the Filers as the investment fund manager to certain of their investment funds that are subject to the requirements of National Instrument 81-107 Independent Review Committee for Investment Funds (NI 81-107) because these funds must instead comply with the requirements in NI 81-107 relating to conflict of interest matters, inter-fund trades and transactions in securities of related issuers.
19. In the absence of the Exemption Sought, the Filers would be prohibited under paragraph 4.1(1)(b) of NI 31-103 from permitting the Representative to act as an advising representative of AHAMI while he is also registered as an advising representative of AHCM, even though the Filers are affiliates.
The Decision Maker is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Maker under the Legislation is that the Exemption Sought is granted provided that the circumstances described above remain in place.