Securities Law & Instruments


Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Exemption granted to mutual fund organizations from prohibition contained in subsection 5.4(1) of National Instrument 81-105 Mutual Fund Sales Practices permitting mutual fund organizations to pay a portion of the direct costs incurred by the Professional Association of Financial Services Advisors in organizing conferences, seminars, courses and other educational events, provided certain conditions are met – National Instrument 81-105 Mutual Fund Sales Practices.

Applicable Legislative Provisions

National Instrument 81-105 Mutual Fund Sales Practices, ss. 5.4(1), 9.1.

May 16, 2017

IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO
(the Jurisdiction)

AND

IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS
IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF
INVESCO CANADA LTD.
(Invesco)

AND

IN THE MATTER OF
PROFESSIONAL ASSOCIATION OF FINANCIAL SERVICES ADVISORS
(the PAFSA)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from Invesco and the PAFSA (collectively, the Filers) for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) under section 9.1 of National Instrument 81-105 Mutual Fund Sales Practices (NI 81-105) exempting the Mutual Fund Organizations (as defined herein) from the prohibition set out in subsection 5.4(1) of NI 81-105 to permit them to pay the direct costs (as such term is defined in NI 81-105) incurred by the PAFSA relating to a conference, seminar, course or other educational event (collectively, the Events) that is organized and presented by the PAFSA (the Exemption Sought).

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

(a)           the Ontario Securities Commission is the principal regulator for this application; and

(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 Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Québec and Saskatchewan (together with Ontario, the Jurisdictions).

Interpretation

Terms defined in National Instrument 14-101 Definitions, MI 11-102 or NI 81-105 have the same meaning if used in this decision, unless otherwise defined.

“Mutual Fund Organizations” means the member of the organization of a mutual fund (as defined in NI 81-105) that wishes to pay the direct costs relating to an Event organized and presented by the PAFSA and includes Invesco.

Representations

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

1.             The PAFSA is a not-for-profit association for individuals who are registered to distribute mutual fund securities, scholarship plans, exempt market funds and insurance products under applicable legislation in one or more provinces.

2.             There are approximately 960 members of the PAFSA at this time. Over 90% of the members are registered to distribute mutual fund securities. The PAFSA’s mission is to preserve the perpetuity of independent financial counsel by promoting, representing and defending its members’ common professional interests and rights, and by grouping the advisors together under its banner.

3.             The PAFSA has set out as its objective to (i) represent its members before governments, self-regulatory organizations, the Canadian Life and Health Insurance Association, mutual fund managers and dealers, and securities brokerage firms; and (ii) to defend its members’ collective interests within the court system. The PAFSA’s activities include: (i) meeting with Québec regulators to discuss regulations, financial products, conformity and to better explain the daily work of advisors; (ii) preparing and submitting memoirs on various issues regarding the industry; (iii) organizing a general assembly and congress for its members to educate on the financial issues in the industry; and (iv) collecting and answering members’ questions, comments and apprehension concerning the future of the industry. The head office of the PAFSA is located in Montréal, Québec.

4.             Invesco is a corporation existing under the laws of Ontario, with its head office being located in Toronto, Ontario. Invesco is the manager of a number of mutual funds that are qualified for distribution in the Jurisdictions. Accordingly, Invesco is a member of the organization of a mutual fund family within the meaning of NI 81-105.

5.             As part of its services, the PAFSA arranges and holds education days, seminars and other Events for its members. Events have been held in Montréal, Québec in the past, but may be held elsewhere in Canada or in the continental United States of America in the future. The Events are of a quality that is similar to the corresponding educational events sponsored by the Investment Funds Institute of Canada and the Investment Industry Regulatory Organization of Canada. The PAFSA will be applying to self-regulatory organizations to have Events count as continuing education credits for Event participants. The PAFSA intends for the Events to qualify for continuing education credits with self-regulatory organizations at a ratio of one continuing education credit per conference hour.

6.             The primary purpose of the Events is to provide educational information about the mutual fund dealer channel of distribution and related matters, including but not limited to the regulation of mutual funds, financial planning, compliance, investing in mutual funds and securities, mutual fund industry matters, and mutual fund issues generally, and therefore is consistent with the requirements of paragraph 5.4(2)(a) of NI 81-105.

7.             Invesco wishes to sponsor certain or all of the Events. However, subsection 5.4(1) of NI 81-105 generally prohibits Mutual Fund Organizations from sponsoring the costs or expenses relating to a conference, seminar or course that is organized and presented by The Investment Funds Institute of Canada (IFIC), the Investment Dealers Association of Canada (the IDA) or another trade or industry association. The PAFSA can be considered “another trade or industry association”. Subsection 5.4(2) of NI 81-105 provides an exemption to permit members of the organization of a mutual fund to sponsor conferences, seminars or courses organized and presented by IFIC, the IDA or their respective affiliates in accordance with the conditions set out therein. No exemption is granted to trade or industry associations such as the PAFSA.

8.             Invesco proposes to sponsor the Events in accordance with the conditions set out in subsection 5.4(2) of NI 81-105.

9.             The PAFSA anticipates that other Mutual Fund Organizations will similarly wish to sponsor a portion of the costs of different Events and agree to pay such costs for such Events in accordance with subsection 5.4(2) of NI 81-105, from time to time. If the Requested Relief is granted, the PAFSA will ensure that any sponsorship of an Event by Invesco and other Mutual Fund Organizations shall comply with the following conditions, which follow the conditions set out in subsection 5.4(2) of NI 81-105:

(a)           the primary purpose of an Event will be the provision of educational information about financial planning, investing in securities, mutual fund industry matters or mutual funds generally;

(b)           none of the Mutual Fund Organizations will pay in aggregate more than ten percent of the total direct costs incurred by the PAFSA for the organization and presentation of an Event;

(c)           the selection of a representative of a participating dealer to attend an Event will be made exclusively by the participating dealer, uninfluenced by the Mutual Fund Organizations; and

(d)           all Events will be held in Canada or the continental United States of America.

(collectively, the Conditions).

Decision

The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.

The decision of the principal regulator under the Legislation is that the Exemption Sought is granted, provided that:

(a)           the Mutual Fund Organizations and the PAFSA comply with the Conditions;

(b)           the PAFSA, on behalf of each Mutual Fund Organization (other than Invesco) whose mutual funds are reporting issuers in Ontario and who wishes to sponsor an Event in reliance on this decision, file an advance written notice with the Director of the Investment Funds and Structured Products Branch of the Ontario Securities Commission that:

(i)            names the Mutual Fund Organization that intends to sponsor the Event in reliance on this decision; and

(ii)           confirms that the Mutual Fund Organization has agreed to sponsor the Event in accordance with the Conditions; and

(c)           this decision will terminate one year after the publication in final form of any legislation or rule which modifies the provisions of section 5.4 of NI 81-105 in a manner which makes the Exemption Sought unnecessary or provides similar relief on a different basis or subject to different conditions.

“Janet Leiper”
Commissioner
Ontario Securities Commission

“Frances Kordyback”
Commissioner
Ontario Securities Commission