Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Filer provides significant management and administrative services to certain funds and is therefore an insider and a reporting insider for such funds under National Instrument 55-104 Insider Reporting Requirements and Exemptions – filer required to file insider reports in respect of securities of funds over which it has control or direction, regardless of whether it has such control or direction in its capacity as administrator of the funds or in its capacity as adviser to a clients of its private client division (PCD) – decisions regarding the voting, acquisition, disposition and holding of the securities in the accounts are made in all circumstances by different individuals from those involved in the administration of the Funds – filer maintains appropriate policies to prevent dissemination of material non-public information about the funds – there is physical separation between the administrator and the advisers in the PCD – the advisers in the PCD do not have access to material undisclosed information about the funds or significant power or influence over the funds – relief from the insider reporting requirements granted, subject to conditions.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 107 National Instrument 55-104 Insider Reporting Requirements and Exemptions, Parts 3 and 4
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 BMO NESBITT BURNS INC.
(the Filer)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) granting the Primary Insider Reporting Requirement Relief and the Supplementary Insider Reporting Requirement Relief (each as defined below) in respect of Securities of a Fund held in an Account (each as defined below) with respect to which the Filer is an insider solely as a result of acting as a management company that provides significant management or administrative services to the Fund.
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 Filer has 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, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut.
Interpretation
Terms defined in National Instrument 14-101 - Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
(a) NI 55-104 means National Instrument 55-104 - Insider Reporting Requirements and Exemptions.
(b) Primary Insider Reporting Requirement Relief means relief from the requirements to file
(i) insider reports under section 107 of the Securities Act (Ontario) and sections 3.2 and 3.3 of NI 55-104, and
(ii) insider reports under any provisions of Canadian securities legislation substantially similar to section 107 of the Securities Act (Ontario) and sections 3.2 and 3.3 of NI 55-104.
(c) Supplementary Insider Reporting Requirement Relief means relief from the requirements to file
(i) insider reports under sections 3.1, 3.4 and 3.5 and Part 4 of NI 55-104,
(ii) insider reports under any provisions of Canadian securities legislation substantially similar to sections 3.1, 3.4 and 3.5 and Part 4 of NI 55-104, and
(iii) an insider profile under National Instrument 55-102 - System for Electronic Disclosure by Insiders (SEDI).
Representations
This decision is based on the following facts represented by the Filer:
The Filer is a corporation incorporated under the laws of Canada. Its head office is located in Toronto, Ontario.
The Filer is a full-service investment firm that is registered as an investment dealer, a futures commission merchant and an investment fund manager with the Ontario Securities Commission. It is also a member of the Investment Industry Regulatory Organization of Canada (IIROC).
BMO Capital Markets (BMO CM) is a business unit of the Filer which provides various products and services to corporate, institutional and governmental clients. BMO CM acts as administrator (the Administrator) to five publicly-offered non-redeemable investment funds—Coxe Commodity Strategy Fund, Star Hedge Managers Corp., T. Boone Pickens Energy Fund, Star Portfolio Corp. and Star Hedge Managers Corp. II (collectively, the Existing Funds)—each of which is a reporting issuer in each province and territory of Canada. The head office of the Existing Funds is located in Toronto, Ontario.
In the future, the Administrator may act as administrator to other publicly offered non-redeemable investment funds (the Future Funds and, together with the Existing Funds, the Funds), which will also be reporting issuers in Canada.
Private Client Division (PCD) is a business unit of the Filer which provides, among other things, full-service brokerage services to a range of clients.
The Filer may hold securities (Securities) issued by the Funds in discretionary or managed accounts (Accounts) on behalf of its clients. These accounts may be managed by investment advisers within PCD (Advisers).
Advisers may exercise discretionary authority over the Securities in the Accounts, which authority may include the power to direct the voting of the Securities and the power to direct the acquisition or disposition of the Securities.
Because the activities of the Administrator and PCD are carried out by separate business units, decisions regarding the voting, acquisition, disposition and holding of the Securities in the Accounts are made in all circumstances by different individuals (i.e., the Advisers) from those who are involved in the administration of the Funds (i.e., the individuals performing the functions of the Administrator).
The Filer maintains appropriate policies (the Policies) to prevent the dissemination of material non-public information about the Funds to, among others, the Advisers, including appropriate practices and procedures, as contemplated by OSC Policy 33-601 - Guidelines for Policies and Procedures Concerning Inside Information relating to the Administrator and the Advisers. There is also physical separation between the Administrator and the Advisers.
The Advisers that make, advise on, participate in the formulation of, or exercise influence over, decisions regarding the voting, acquisition or disposition of the Securities in the Accounts do not have access to material undisclosed information about a Fund or significant power or influence over a Fund.
Section 107 of the Securities Act (Ontario) and Parts 3 and 4 of NI 55-104 impose certain reporting requirements on insiders, including management companies that provide significant management or administrative services to an issuer.
Because the Filer is a “management company” within the meaning of NI 55-104 and provides significant management and administrative services to the Funds, the insider reporting requirements oblige the Filer to file insider reports in respect of the Securities over which it has control or direction, regardless of whether it has such control or direction in its capacity as administrator of the Funds or in its capacity as adviser to a client of PCD.
Pursuant to a decision dated May 10, 2010 (the Previous Order), the Ontario Securities Commission granted the Filer the Primary Insider Reporting Requirement Relief and the Supplementary Insider Reporting Requirement Relief, subject to certain terms and conditions. The Previous Order will expire on May 7, 2011.
The Filer acknowledges the Primary Insider Reporting Requirement Relief and the Supplementary Insider Reporting Requirement Relief relates only to Securities of a Fund held in an Account, and that it remains subject to the insider reporting requirements in all other respects.
The Filer is not in default of any of its obligations under securities legislation in any of Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland and Labrador, Yukon, Northwest Territories or Nunavut.
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 in relation to the Primary Insider Reporting Requirement Relief is that
the Previous Order is revoked; and
the Primary Insider Reporting Requirement Relief is granted in respect of Securities of a Fund held in an Account with respect to which the Filer is an insider solely as a result of acting as a management company that provides significant management or administrative services to the Fund so long as
(a) decisions regarding the voting, acquisition, disposition or holding of the Securities in the Accounts are made in all circumstances by different individuals (i.e., the Advisers) from those who are involved in the administration of the Funds (i.e., the individuals performing the functions of the Administrator);
(b) the Filer maintains the Policies;
(c) there is physical separation between the Administrator and the Advisers; and
(d) the Advisers that make, advise on, participate in the formulation of, or have influence over, decisions regarding the voting, acquisition or disposition of the Securities in the Accounts do not have access to material undisclosed information about a Fund or significant power or influence over a Fund.
”Edward P. Kerwin” "Margot Howard”
Ontario Securities Commission Ontario Securities Commission
The decision of the principal regulator under the Legislation in relation to the Supplementary Insider Reporting Requirement Relief is that
the Previous Order is revoked; and
the Supplementary Insider Reporting Requirement Relief is granted in respect of Securities of a Fund held in an Account with respect to which the Filer is an insider solely as a result of acting as a management company that provides significant management or administrative services to the Fund so long as the conditions set out in paragraphs 2(a), (b), (c) and (d) under the decision granting the Primary Insider Reporting Requirement Relief are satisfied.
“Michael Brown”
Ontario Securities Commission