Securities Law & Instruments

Headnote

Subsection 78(1) of the Commodity Futures Act (Ontario) – Order to revoke previous relief from the adviser registration requirement of paragraph 22(1)(b) of the CFA granted to sub-advisers headquartered in a foreign jurisdiction in respect of advice regarding trades in commodity futures contracts and commodity futures options, subject to certain terms and conditions.

Section 80 of the Commodity Futures Act (Ontario) – Order to grant relief from the adviser registration requirement of paragraph 22(1)(b) of the CFA granted to sub-advisers headquartered in a foreign jurisdiction 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 8.26.1 of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations made under the Securities Act (Ontario) – Relief is subject to a sunset clause.

Applicable Legislative Provisions

Commodity Futures Act, R.S.O. 1990, c. C.20, as am., ss. 1(1), 22(1)(b), 78(1), 80.

Securities Act, R.S.O. 1990, c. S.5, as am., s. 25(3).

National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, s. 8.26.1.

Ontario Securities Commission Rule 35-502 Non-Resident Advisers, s. 7.11.

November 29, 2016

IN THE MATTER OF

THE COMMODITY FUTURES ACT,

R.S.O. 1990, CHAPTER C.20, AS AMENDED

(the CFA)

AND

IN THE MATTER OF

FIDELITY INVESTMENTS CANADA ULC,

FIDELITY (CANADA) ASSET MANAGEMENT ULC,

FIAM LLC,

FMR CO., INC.,

FIL LIMITED,

FIDELITY INVESTMENTS MONEY MANAGEMENT, INC.,

FMR INVESTMENT MANAGEMENT (UK) LIMITED,

GEODE CAPITAL MANAGEMENT, LLC AND

FIDELITY INSTITUTIONAL ASSET MANAGEMENT TRUST COMPANY

ORDER

(Section 80 and Subsection 78(1) of the CFA)

                UPON the application (the Application) of:

(a)           FMR Co., Inc. (FMRCo), FIL Limited (FIL), Fidelity Investments Money Management, Inc. (FIMM), FMR Investment Management (UK) Limited (FMR IM) and Fidelity Institutional Asset Management Trust Company (FIAM TC and, together with FMRCo, FIL, FIMM and FMR IM, the Previous Sub-Advisers) and Fidelity Investments Canada ULC (Fidelity), FIAM LLC (FIAM) and Fidelity (Canada) Asset Management ULC (FCAM and, together with FIAM and Fidelity, the Principal Advisers and each a Principal Adviser) to the Ontario Securities Commission (the Commission) for an order, pursuant to subsection 78(1) of the CFA, revoking the exemption order granted by the Commission to the Previous Sub-Advisers on June 17, 2015 (the Previous Order); and

(b)           FMRCo, FIL, FIMM, FMR IM and Geode Capital Management, LLC (Geode and, together with FMRCo, FIL, FIMM and FMR IM, the Sub-Advisers and each a Sub-Adviser) and the Principal Advisers to the Commission for an order, pursuant to section 80 of the CFA, that each Sub-Adviser (and individuals engaging in, or holding themselves out as engaging in, the business of advising others when acting on behalf of a Sub-Adviser in respect of the Sub-Advisory Services (as defined below) (the Representatives)) be exempt, for a specified period of time, from the adviser registration requirements in paragraph 22(1)(b) of the CFA when acting as a sub-adviser to a Principal Adviser for the benefit of the Clients (as defined below) regarding commodity futures contracts and commodity futures options traded on commodity futures exchanges (collectively, the Contracts) and cleared through clearing corporations;

                AND UPON considering the Application and the recommendation of staff of the Commission;

                AND UPON the Sub-Advisers and the Principal Advisers having represented to the Commission that:

Principal Advisers

1.             Fidelity was incorporated under the laws of Canada and has subsequently continued under the laws of Alberta. Fidelity is resident in Canada, with a head office in Toronto, Ontario.

2.             Fidelity is registered as a mutual fund dealer and portfolio manager under the relevant securities legislation of each of the provinces and territories of Canada. Fidelity is also registered as an adviser in the category of commodity trading manager under the CFA. Further, Fidelity is registered as an investment fund manager under the relevant securities legislation of the provinces of Ontario, Québec and Newfoundland and Labrador.

3.             FIAM (formerly known as Pyramis Global Advisors, LLC) is a limited liability company organized under the laws of the State of Delaware. FIAM is resident in the United States (the U.S.), with its principal office and place of business in Smithfield, Rhode Island.

4.             FIAM is registered as an investment adviser with the U.S. Securities and Exchange Commission (the SEC). FIAM is an exempt commodity trading advisor and an exempt commodity pool operator with the U.S. National Futures Association (the NFA). FIAM engages in the business of an adviser in respect of Contracts in the U.S.

5.             FIAM is registered as a portfolio manager under the Securities Act (Ontario) (the OSA) and as an adviser in the category of commodity trading manager under the CFA.

6.             FCAM (formerly known as Pyramis Global Advisors (Canada) ULC) was incorporated under the laws of Alberta. Pyramis Canada is resident in Canada, with a head office in Toronto, Ontario.

7.             FCAM is registered as a portfolio manager under the relevant securities legislation of the provinces of Ontario and Québec and as an adviser in the category of commodity trading manager under the CFA.

Sub-Advisers

8.             FMRCo is a corporation organized under the laws of the Commonwealth of Massachusetts. FMRCo is resident in the U.S., with its principal office and place of business in Boston, Massachusetts. FMRCo is registered as an investment adviser with the SEC and is an exempt commodity trading advisor with the NFA. FMRCo engages in the business of an adviser in respect of Contracts in the U.S.

9.             FIMM is a corporation organized under the laws of the State of New Hampshire. FIMM is resident in the U.S., with its principal office and place of business in Boston, Massachusetts. FIMM is registered as an investment adviser with the SEC and is an exempt commodity trading advisor with the NFA. FIMM engages in the business of an adviser in respect of Contracts in the U.S.

10.          Each of FMRCo and FIMM is registered in a category of registration, or operates under an exemption from registration under the commodities futures or other applicable legislation of the U.S. that permits it to carry on the activities in that jurisdiction that registration as an adviser under the CFA would permit it to carry on in Ontario. As such, each of FMRCo and FIMM is authorized and permitted to carry on the Sub-Advisory Services.

11.          FMR IM is a private limited liability company organised and existing under the laws of England and Wales. The principal place of business of FMR IM is located in London, England. FMR IM is authorized and regulated by the Financial Conduct Authority in the United Kingdom (the U.K.) and is registered in the U.S. as an investment adviser with the SEC. FMR IM is an exempt commodity trading advisor with the NFA.

12.          FMR IM engages in the business of an adviser in respect of Contracts in the U.K. FMR IM is registered in a category of registration, or operates under an exemption from registration under the commodities futures or other applicable legislation of the U.K. and the U.S. that permits it to carry on the activities in those jurisdictions that registration as an adviser under the CFA would permit it to carry on in Ontario. As such, it is authorized and permitted to carry on the Sub-Advisory Services.

13.          FIL is a corporation organized under the laws of Bermuda and is resident in Bermuda. FIL is registered with the Bermuda Monetary Authority. FIL engages in the business of an adviser in respect of Contracts in Bermuda. FIL is registered in a category of registration, or operates under an exemption from registration under the commodities futures or other applicable legislation of Bermuda that permits it to carry on the activities in that jurisdiction that registration as an adviser under the CFA would permit it to carry on in Ontario. As such, it is authorized and permitted to carry on the Sub-Advisory Services.

14.          Geode is a limited liability company organized under the laws of the state of Delaware. Geode is resident in the U.S., with its principal office and place of business in Boston, Massachusetts. Geode engages in the business of an adviser in respect of Contracts in the U.S. for the clients it advises. Geode is registered as an investment adviser with the SEC. Geode is registered with the NFA as a commodity pool operator and a commodity trading advisor, and is also exempt or excluded from registration as a commodity pool operator or commodity trading adviser for some of its clients under the rules of the U.S. Commodity Futures Trading Commission. Geode is registered in a category of registration, or operates under an exemption from registration under the commodities futures or other applicable regulation of the U.S. that permits it to carry on the activities in that jurisdiction that registration as an adviser under the CFA would permit it to carry on in Ontario. As such, it is authorized and permitted to carry on the Sub-Advisory Services.

15.          Geode is relying on the international adviser exemption in section 8.26 of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103).

16.          None of the Sub-Advisers are registered in any capacity under the CFA or the OSA. The Sub-Advisers each act in reliance on the exemption from the requirement to register as an adviser under the OSA available to it pursuant to section 8.26.1 of NI 31-103.

17.          The Principal Advisers and the Sub-Advisers are not in default of securities legislation, commodity futures legislation or derivatives legislation in any jurisdiction of Canada. FMRCo, FIMM and Geode are in compliance in all material respects with securities laws, commodity futures laws and derivatives laws in the U.S. FMR IM is in compliance in all material respects with securities laws, commodity futures laws and derivatives laws in each of the U.K. and the U.S. FIL is in compliance in all material respects with securities laws, commodity futures laws and derivatives laws in Bermuda.

18.          The Principal Advisers provide, or may in the future provide, investment advice and/or discretionary portfolio management services in Ontario to: (i) investment funds, the securities of which are qualified by prospectus for distribution to the public in Ontario and the other provinces and territories of Canada (the Investment Funds); (ii) pooled funds, the securities of which are sold on a private placement basis in Ontario and certain other provinces and territories of Canada pursuant to prospectus exemptions contained in National Instrument 45-106 Prospectus Exemptions (the Pooled Funds); (iii) clients who have entered into investment management agreements with a Principal Adviser to establish managed accounts (the Managed Account Clients); and (iv) other Investment Funds, Pooled Funds and Managed Account Clients that may be established or retained in the future and in respect of which a Principal Adviser engages a Sub-Adviser to provide portfolio advisory services (the Future Clients) (each of the Investment Funds, Pooled Funds, Managed Account Clients and Future Clients being referred to individually as a Client and collectively as the Clients).

19.          Certain of the Clients may, as part of their investment program, invest in Contracts. The Principal Advisers each act as a commodity trading manager in respect of such Clients.

20.          In connection with the Principal Advisers acting as advisers to Clients in respect of the purchase or sale of securities and Contracts, each Principal Adviser, pursuant to written agreements made between the Principal Adviser and each respective Sub-Adviser, has retained the respective Sub-Adviser to act as a sub-adviser to the Principal Adviser in respect of securities and Contracts in which that Sub-Adviser has experience and expertise by exercising discretionary authority on behalf of the Principal Adviser, in respect of all or a portion of the assets of the investment portfolio of the respective Client, including discretionary authority to buy or sell Contracts for the Client (the Sub-Advisory Services), provided that:

(a)           in each case, the Contracts must be cleared through an “acceptable clearing corporation” (as defined in National Instrument 81-102 Investment Funds, or any successor thereto (NI 81-102)) or a clearing corporation that clears and settles transactions made on a futures exchange listed in Appendix A of NI 81-102, or any successor thereto; and

(b)           such investments are consistent with the investment objectives and strategies of the applicable Client.

21.          Paragraph 22(1)(b) of the CFA prohibits a person or company from acting as an adviser unless the person or company is registered as an adviser under the CFA, or is registered as a representative or as a partner or an officer of a registered adviser and is acting on behalf of such registered adviser.


22.          By providing the Sub-Advisory Services, the Sub-Advisers will be engaging in, or holding themselves out as engaging in, the business of advising others with respect to Contracts and, in the absence of being granted the requested relief, would be required to register as advisers under the CFA.

23.          There is presently no rule or regulation under the CFA that provides an exemption from the adviser registration requirement in paragraph 22(1)(b) of the CFA that is similar to the exemption from the adviser registration requirement in subsection 25(3) of the OSA, which is provided under section 8.26.1 of NI 31-103.

24.          The relationship among any Principal Adviser, the Sub-Advisers and any Client is consistent with the requirements of section 8.26.1 of NI 31-103.

25.          A Sub-Adviser will only provide the Sub-Advisory Services to a Principal Adviser as long as that Principal Adviser is, and remains, registered under the CFA as an adviser in the category of commodity trading manager.

26.          As would be required under section 8.26.1 of NI 31-103:

(a)           the obligations and duties of each Sub-Adviser are set out in a written agreement with each Principal Adviser; and

(b)           the relevant Principal Adviser or Principal Advisers have entered into a written contract with each Client, agreeing to be responsible for any loss that arises out of the failure of any Sub-Adviser:

(i)            to exercise the powers and discharge the duties of its office honestly, in good faith and in the best interests of the Principal Adviser and each Client; or

(ii)           to exercise the degree of care, diligence and skill that a reasonably prudent person would exercise in the circumstances (together with (i), the Assumed Obligations).

27.          The written agreement between a Principal Adviser and a Sub-Adviser sets out the obligations and duties of each party in connection with the Sub-Advisory Services and permits the Principal Adviser to exercise the degree of supervision and control it is required to exercise over the Sub-Adviser in respect of the Sub-Advisory Services.

28.          The Principal Advisers will deliver to the Clients all required reports and statements under applicable securities, commodity futures and derivatives legislation.

29.          The prospectus or other offering document, if any, (in either case, the Offering Document) for each Client that is an Investment Fund or a Pooled Fund and for which a Principal Adviser engages one or more Sub-Advisers to provide the Sub-Advisory Services will include the following disclosure (the Required Disclosure):

(a)           a statement that the Principal Adviser is responsible for any loss that arises out of the failure of any Sub-Adviser to meet the Assumed Obligations; and

(b)           a statement that there may be difficulty in enforcing any legal rights against the Sub-Advisers (or any of their Representatives) because the Sub-Advisers are resident outside of Canada and all or substantially all of their assets are situated outside of Canada.

30.          Prior to purchasing any securities of one or more of the Clients that are Investment Funds or Pooled Funds directly from a Principal Adviser, all investors in the Investment Funds or Pooled Funds who are Ontario residents will receive, or have received, the Required Disclosure in writing (which may be in the form of an Offering Document).

31.          Each Client that is a Managed Account Client for which a Principal Adviser engages one or more Sub-Advisers to provide the Sub-Advisory Services will receive, or has received, the Required Disclosure in writing prior to the purchasing of any Contracts for such Client.

32.          The Principal Advisers and the Previous Sub-Advisers obtained substantially similar relief in the Previous Order, pursuant to which the Previous Sub-Advisers provided Sub-Advisory Services to the Principal Advisers in respect of the Clients. However, since FIAM TC (formerly known as Pyramis Global Advisors Trust Company) is no longer providing the Sub-Advisory Services and Geode will be providing the Sub-Advisory Services, the Previous Sub-Advisers and the Principal Advisers have applied to the Commission for an order revoking the Previous Order and the Sub-Advisers and the Principal Advisers have applied for an order granting substantially similar relief as that in the Previous Order.

                AND UPON being satisfied that it would not be prejudicial to the public interest for the Commission to grant the relief requested;


                IT IS ORDERED, pursuant to subsection 78(1) of the CFA, that the Previous Order is revoked;

                IT IS FURTHER ORDERED, pursuant to section 80 of the CFA, that each Sub-Adviser and its Representatives are exempt from the adviser registration requirements in paragraph 22(1)(b) of the CFA when acting as a sub-adviser to a Principal Adviser in respect of the Sub-Advisory Services provided that at the relevant time that such activities are engaged in:

(a)           the Principal Adviser is registered under the CFA as an adviser in the category of commodity trading manager;

(b)           the Sub-Adviser’s head office or principal place of business is in a foreign jurisdiction;

(c)           the Sub-Adviser is registered in a category of registration, or operates under an exemption from registration, under the commodity futures or other applicable legislation of the foreign jurisdiction in which its head office or principal place of business is located, that permits it to carry on the activities in that jurisdiction that registration as an adviser under the CFA would permit it to carry on in Ontario;

(d)           the Sub-Adviser engages in the business of an adviser in respect of Contracts in the foreign jurisdiction in which its head office or principal place of business is located;

(e)           the obligations and duties of the Sub-Adviser are set out in a written agreement with the Principal Adviser;

(f)            the Principal Adviser has entered into a written agreement with the Clients, agreeing to be responsible for any loss that arises out of any failure of the Sub-Adviser to meet the Assumed Obligations;

(g)           the Offering Document of each Client that is an Investment Fund or Pooled Fund and for which a Principal Adviser engages a Sub-Adviser to provide the Sub-Advisory Services will include the Required Disclosure;

(h)           prior to purchasing any securities of one or more of the Clients that are Investment Funds or Pooled Funds directly from a Principal Adviser, all investors in the Investment Funds or Pooled Funds who are Ontario residents will receive, or have received, the Required Disclosure in writing; and

(i)            each Client that is a Managed Account Client for which a Principal Adviser engages a Sub-Adviser to provide the Sub-Advisory Services will receive, or has received, the Required Disclosure in writing prior to the purchasing of any Contracts for such Client; and

                IT IS FURTHER ORDERED that this Order will terminate on the earliest of:

(a) the expiry of any transition period as may be provided by law, after the effective date of the repeal of the CFA;

(b) six months, or such other transition period as may be provided by law, after the coming into force of any amendment to Ontario commodity futures law (as defined in the CFA) or Ontario securities law (as defined in the OSA) that affects the ability of a Sub-Adviser to act as a sub-adviser to a Principal Adviser in respect of the Sub-Advisory Services; and

(c) five years after the date of this Order.

                DATED at Toronto, Ontario, this 29th day of November 2016

“Tim Moseley”

Commissioner

Ontario Securities Commission

“Janet Leiper”

Commissioner

Ontario Securities Commission