Securities Law & Instruments

Headnote

 

Section 80 of the Commodity Futures Act (Ontario)(the CFA) – Foreign adviser firm exempted from the adviser registration requirement in paragraph 22(1)(b) of the CFA where: (i) it acts as an adviser in respect of commodity futures contracts or commodity futures options for certain investors in Ontario who meet the definition of “permitted client” in NI 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations; and (ii) the commodity futures contract or commodity futures option is primarily traded on commodity futures exchanges outside of Canada and primarily cleared outside of Canada.

 

Terms and conditions of exemption in Order correspond to the relevant terms and conditions of the exemption from the adviser registration requirement available to international advisers in respect of securities set out in section 8.26 of NI 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations – Exemption in Order includes individuals acting on behalf of the foreign adviser firm – Exemption in Order is also subject to a “sunset clause” condition.

 

Statutes Cited

 

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

Securities Act, R.S.O. 1990, c. S.5, as am.

Ontario Securities Commission Rule 13-502 Fees, Part 3 and s. 6.4.

National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, ss. 1.1, 8.26.

National Instrument 33-109 Registration Information, Form 33-109F6.

 

IN THE MATTER OF

THE COMMODITY FUTURES ACT,

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

(the “CFA”)

 

AND

 

IN THE MATTER OF

FORT, L.P.

 

ORDER

(Section 80 of the CFA)

 

                UPON the application (the Application) of FORT, L.P. (the Applicant) to the Ontario Securities Commission (the Commission) for an order pursuant to section 80 of the CFA that the Applicant and any individuals engaging in, or holding themselves out as engaging in, the business of advising others as to trading in Contracts (as defined below) on the Applicant’s behalf (the Representatives) be exempt, for a specified period of time, from the adviser registration requirement in paragraph 22(1)(b) of the CFA, subject to certain terms and conditions;

 

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

 

                AND WHEREAS for the purposes of this Order:

 

“CFA Adviser Registration Requirement” means the requirement in paragraph 22(1)(b) of the CFA that prohibits a person or company from acting as an adviser with respect to trading in Contracts unless the person or company is registered in the appropriate category of registration under the CFA;

 

“CFTC” means the Commodity Futures Trading Commission of the United States;

 

“Contract” has the meaning ascribed to that term in subsection 1(1) of the CFA;

 

“Foreign Contract” means a Contract that is primarily traded on one or more organized exchanges that are located outside of Canada and primarily cleared through one or more clearing corporations that are located outside of Canada;

 

“International Adviser Exemption” means the exemption set out in section 8.26 of NI 31-103 from the OSA Adviser Registration Requirement;

 

“International Investment Fund Manager Exemption” means the exemption set out in section 4 of Multilateral Instrument 32-102 – Registration Exemptions for Non-Resident Investment Fund Managers;

 

“NI 31-103” means National Instrument 31-103, Registration Requirements, Exemptions and Ongoing Registrant Obligations;

 

“OSA” means the Securities Act, R.S.O. 1990, c. S.5, as amended;

 

“OSA Adviser Registration Requirement” means the requirement in the OSA that prohibits a person or company from engaging in or holding himself, herself or itself out as engaging in the business of advising others as to the investing in or the buying or selling of securities, unless the person or company is registered in the appropriate category of registration under the OSA;

 

“Permitted Client” means a client in Ontario that is a “permitted client”, as that term is defined in section 1.1 of NI 31-103, except that for purposes of this Order such definition shall exclude a person or company registered as an adviser or dealer under the securities legislation or derivatives legislation, including commodity futures legislation, of a jurisdiction of Canada;

 

“SEC” means the Securities and Exchange Commission of the United States; and

 

“specified affiliate” has the meaning ascribed to that term in Form 33-109F6 to National Instrument 33-109 Registration Information.

 

                AND UPON the Applicant having represented to the Commission that:

 

1.             The Applicant is a limited partnership formed under the laws of the State of Delaware and its principal place of business is located in the United States of America.

 

2.             The Applicant is authorized to provide investment services by the Commodity Futures and Trading Commission (CFTC) and the Securities and Exchange Commission (SEC). As a registered investment firm, the Applicant is subject to prudential regulation and on-going supervision by the CFTC and SEC.

 

3.             The Applicant operates as an investment fund manager and asset management firm and offers investment advice and portfolio management services to institutional clients and high net worth individuals. The Applicant serves a diversified client base, the majority of which are institutional asset managers, pension funds, sovereign wealth funds, family offices and high net-worth individuals.

 

4.             As of May 1, 2017, the Applicant managed approximately U.S.$3.5 billion in assets.

 

5.             The Applicant is authorized by the CFTC and SEC to advise on, inter alia, securities, options, futures, swaps, forward rate agreements and any other derivative contracts.

 

6.             The Applicant is not registered under the OSA or CFA in Ontario or under the securities legislation or derivatives legislation, including commodity futures legislation, of any other jurisdiction of Canada. However, the Applicant has made application for registration as a dealer in the category of exempt market dealer in the provinces of Ontario, Québec, Alberta and British Columbia.

 

7.             The Applicant currently relies upon the International Investment Fund Manager Exemption and the International Adviser Exemption to act as an investment fund manager in respect of certain investment funds and to provide certain advisory services in respect of securities to residents of Ontario and Québec.

 

8.             The Applicant is not in default of the securities legislation or derivatives legislation, including commodity futures legislation, of any jurisdiction of Canada. The Applicant is also in compliance in all material respects with securities law, commodity futures law and derivatives laws of the United States of America.

 

9.             Certain investors that are Permitted Clients, including separately managed accounts, mutual funds and collective investment trust funds, seek to engage the Applicant as an investment adviser for the purposes of implementing certain investment strategies, including providing advice as to trading in Foreign Contracts and managing trading in Foreign Contracts through discretionary authority.

 

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

 

11.          There is currently no exemption from the CFA Adviser Registration Requirement that is equivalent to the International Adviser Exemption. Consequently, in order to advise Permitted Clients as to trading in Foreign Contracts, in the absence of this Order, the Applicant would be required to satisfy the CFA Adviser Registration Requirement by applying for and obtaining registration under the CFA in the appropriate category of registration.

 

12.          To the best of the Applicant's knowledge, the Applicant confirms that there are currently no regulatory actions of the type contemplated by the Notice of Regulatory Action attached as Appendix "B".

 

                AND UPON being satisfied that it would not be prejudicial to the public interest for the Commission to make this Order;

 

                IT IS ORDERED, pursuant to section 80 of the CFA, that the Applicant and its Representatives are exempt from the adviser registration requirement in paragraph 22(1)(b) of the CFA in respect of providing advice to Permitted Clients as to the trading of Foreign Contracts provided that:

 

(a)           the Applicant provides advice to Permitted Clients only as to trading in Foreign Contracts and does not advise any Permitted Client as to trading in Contracts that are not Foreign Contracts, unless providing such advice is incidental to its providing advice on Foreign Contracts;

 

(b)           the Applicant’s head office or principal place of business remains in the United States of America;

 

(c)           the Applicant is registered in a category of registration, or operates under an exemption from registration, under the applicable securities or derivatives legislation, including commodity futures legislation of the United States that permits it to carry on the activities in the United States of America that registration under the CFA as an adviser in the category of commodity trading manager would permit it to carry on in Ontario;

 

(d)           the Applicant continues to engage in the business of an adviser (as defined in the CFA) in the United States of America;

 

(e)           as at the end of the Applicant's most recently completed financial year, not more than 10% of the aggregate consolidated gross revenue of the Applicant, its affiliates and its affiliated partnerships (excluding the gross revenue of an affiliate or affiliated partnership of the Applicant if the affiliate or affiliated partnership is registered under securities legislation, commodities legislation or derivatives legislation of a jurisdiction of Canada) was derived from the portfolio management activities of the Applicant, its affiliates and its affiliated partnerships in Canada (which, for greater certainty, includes both securities-related and commodity-futures-related activities);

 

(f)            before advising a Permitted Client with respect to Foreign Contracts, the Applicant notifies the Permitted Client of all of the following:

 

(i)            the Applicant is not registered in Ontario to provide the advice described in paragraph (a) of this Order;

 

(ii)           the foreign jurisdiction in which the Applicant’s head office or principal place of business is located;

 

(iii)          all or substantially all of the Applicant’s assets may be situated outside of Canada;

 

(iv)          there may be difficulty enforcing legal rights against the Applicant because of the above; and

 

(v)           the name and address of the Applicant’s agent for service of process in Ontario;

 

(g)           the Applicant has submitted to the Commission a completed Submission to Jurisdiction and Appointment of Agent for Service in the form attached as Appendix “A”;

 

(h)           the Applicant notifies the Commission of any regulatory action initiated after the date of this Order with respect to the Applicant or any predecessors or the specified affiliates of the Applicant by completing and filing Appendix “B” within 10 days of the commencement of each such action;

 

(i)            if the Applicant is not registered under the OSA and does not rely on the International Adviser Exemption, by December 31st of each year, the Applicant pays a participation fee based on its specified Ontario revenues for its previous financial year in compliance with the requirements of Part 3 and section 6.4 of Ontario Securities Commission Rule 13‑502 Fees as if the Applicant relied on the International Adviser Exemption; 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 the Applicant to act as an adviser to a Permitted Client; and

 

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

 

                DATED at Toronto, Ontario, this 18th day of July, 2017.

 

“Robert P. Hutchison”                                                                        

Commissioner

Ontario Securities Commission

“Frances Kordyback”

Commissioner

Ontario Securities Commission


APPENDIX “A”

 

SUBMISSION TO JURISDICTION AND APPOINTMENT OF AGENT FOR SERVICE

 

INTERNATIONAL DEALER OR INTERNATIONAL ADVISER EXEMPTED FROM

REGISTRATION UNDER THE COMMODITY FUTURES ACT, ONTARIO

 

1.             Name of person or company ("International Firm"):

 

2.             If the International Firm was previously assigned an NRD number as a registered firm or an unregistered exempt international firm, provide the NRD number of the firm:

 

3.             Jurisdiction of incorporation of the International Firm:

 

4.             Head office address of the International Firm:

 

5.             The name, e-mail address, phone number and fax number of the International Firm's individual(s) responsible for the supervisory procedure of the International Firm, its chief compliance officer, or equivalent.

 

Name:

E-mail address:

Phone:

Fax:

 

6.             The International Firm is relying on an exemption order under section 38 or section 80 of the Commodity Futures Act (Ontario) that is similar to the following exemption in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (the "Relief Order"):

 

 Section 8.18 [international dealer]

 

 Section 8.26 [international adviser]

 

 Other [specify]:

 

7.             Name of agent for service of process (the "Agent for Service"):

 

8.             Address for service of process on the Agent for Service:

 

9.             The International Firm designates and appoints the Agent for Service at the address stated above as its agent upon whom may be served a notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal or other proceeding (a "Proceeding") arising out of or relating to or concerning the International Firm's activities in the local jurisdiction and irrevocably waives any right to raise as a defence in any such proceeding any alleged lack of jurisdiction to bring such Proceeding.

 

10.          The International Firm irrevocably and unconditionally submits to the non-exclusive jurisdiction of the judicial, quasi-judicial and administrative tribunals of the local jurisdiction in any Proceeding arising out of or related to or concerning the International Firm's activities in the local jurisdiction.

 

11.          Until 6 years after the International Firm ceases to rely on the Relief Order, the International Firm must submit to the regulator

 

a.             a new Submission to Jurisdiction and Appointment of Agent for Service in this form no later than the 30th day before the date this Submission to Jurisdiction and Appointment of Agent for Service is terminated;

 

b.             an amended Submission to Jurisdiction and Appointment of Agent for Service no later than the 30th day before any change in the name or above address of the Agent for Service;

 

c.             a notice detailing a change to any information submitted in this form, other than the name or above address of the Agent for Service, no later than the 30th day after the change.

 

12.          This Submission to Jurisdiction and Appointment of Agent for Service is governed by and construed in accordance with the laws of the local jurisdiction.

 

Dated: _______________

 

________________________________________________

(Signature of the International Firm or authorized signatory)

 

________________________________________________

(Name of signatory)

 

________________________________________________

(Title of signatory)

 


Acceptance

 

The undersigned accepts the appointment as Agent for Service of _______________ [Insert name of International Firm] under the terms and conditions of the foregoing Submission to Jurisdiction and Appointment of Agent for Service.

 

Dated: ____________________

 

________________________________________________

(Signature of the Agent for Service or authorized signatory)

 

________________________________________________

(Name of signatory)

 

________________________________________________

(Title of signatory)

 

This form, and notice of a change to any information submitted in this form, is to be submitted through the Ontario Securities Commission’s Electronic Filing Portal:

 

https://www.osc.gov.on.ca/filings

 


APPENDIX “B”

 

NOTICE OF REGULATORY ACTION

 

1.             Has the firm, or any predecessors or specified affiliates[1] of the firm entered into a settlement agreement with any financial services regulator, securities or derivatives exchange, SRO or similar agreement with any financial services regulator, securities or derivatives exchange, SRO or similar organization?

 

Yes _____ No _____

 

If yes, provide the following information for each settlement agreement:

 

Name of entity

Regulator/organization

Date of settlement (yyyy/mm/dd)

Details of settlement

Jurisdiction

2.             Has any financial services regulator, securities or derivatives exchange, SRO or similar organization:

 

 

Yes

No

a)            Determined that the firm, or any predecessors or specified affiliates of the firm violated any securities regulations or any rules of a securities or derivatives exchange, SRO or similar organization?

___

___

(b)           Determined that the firm, or any predecessors or specified affiliates of the firm made a false statement or omission?

___

___

(c)           Issued a warning or requested an undertaking by the firm, or any predecessors or specified affiliates of the firm?

___

___

(d)           Suspended or terminated any registration, licensing or membership of the firm, or any predecessors or specified affiliates of the firm?

___

___

(e)           Imposed terms or conditions on any registration or membership of the firm, or predecessors or specified affiliates of the firm?

___

___

(f)            Conducted a proceeding or investigation involving the firm, or any predecessors or specified affiliates of the firm?

___

___

(g)           Issued an order (other than an exemption order) or a sanction to the firm, or any predecessors or specified affiliates of the firm for securities or derivatives-related activity (e.g. cease trade order)?

___

___

If yes, provide the following information for each action:

 

Name of entity

Type of action

Regulator/organization

Date of action (yyyy/mm/dd)

Reason for action

Jurisdiction

 


3.             Is the firm aware of any ongoing investigation of which the firm or any of its specified affiliates is the subject?

 

Yes _____ No _____

 

If yes, provide the following information for each investigation:

 

Name of entity

Reason or purpose of investigation

Regulator/organization

Date investigation commenced (yyyy/mm/dd)

Jurisdiction

 

Name of firm:

Name of firm’s authorized signing officer or partner

Title of firm’s authorized signing officer or partner

Signature

Date (yyyy/mm/dd)

 

Witness

 

The witness must be a lawyer, notary public or commissioner of oaths.

 

Name of witness

Title of witness

Signature

Date (yyyy/mm/dd)

 

This form is to be submitted through the Ontario Securities Commission’s Electronic Filing Portal:

 

https://www.osc.gov.on.ca/filings

 

 

 

 





[1]       In this Appendix, the term "specified affiliate" has the meaning ascribed to that term in Form 33-109F6 to National Instrument 33-109 Registration Information.