1832 Asset Management L.P., 2025 CanLII 22538

March 19, 2025

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

1832 ASSET MANAGEMENT L.P.

(the Filer)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer on behalf of 1832 AM Tactical Asset Allocation PLUS Pool, Dynamic Active Enhanced Yield Covered Options ETF, Dynamic Premium Balanced Private Pool Class, Dynamic Premium Bond Private Pool, Dynamic Premium Bond Private Pool Class, Dynamic Premium Yield Class, Dynamic Premium Yield Fund, Dynamic Premium Yield PLUS Fund, Scotia U.S. $ Balanced Fund, Scotia Wealth Premium Payout Pool and the other existing and future mutual funds managed by the Filer, or an affiliate of the Filer, that are subject to National Instrument 81-102 Investment Funds (NI 81-102) and are permitted by their investment objectives and investment strategies to invest in Exchange Traded Specified Derivatives (as defined herein) (each, a Fund and collectively, the Funds) for a decision under the securities legislation of the Jurisdiction (the Legislation) for an exemption, pursuant to section 19.1 of NI 81-102, from:

(a) subsection 6.8(1) of NI 81-102, which restricts an investment fund from depositing portfolio assets as margin with a member of a regulated clearing agency or dealer that is a member of a self-regulatory organization that is a participating member of the Canadian Investor Protection Fund (CIPF) for a transaction in Canada involving certain specified derivatives in excess of 10% of the net asset value (NAV) of the investment fund at the time of deposit; and

(b) paragraph 6.8(2)(c) of NI 81-102, which restricts an investment fund from depositing portfolio assets as margin with a member of a regulated clearing agency or dealer for a transaction outside of Canada involving certain specified derivatives in excess of 10% of the NAV of the investment fund as at the time of deposit;

to permit each Fund to deposit as margin portfolio assets of up to 35% of the Fund’s NAV as at the time of deposit with any one futures commission merchant in Canada or the United States (each a Dealer) and up to 70% of each Fund’s NAV at the time of deposit with all Dealers in the aggregate, for transactions involving standardized futures, clearing corporation options, options on futures, or cleared specified derivatives, such as cleared swaps, that are traded or cleared on or through a stock exchange or futures exchange, a recognized clearing agency, or a swap execution facility that is exempted from recognition as an exchange under subsection 21(1) of the Securities Act (Ontario) (together, Exchange Traded Specified Derivatives) (the Requested Relief).

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 subsection 4.7(1) of Multilateral Instrument 11-102 – Passport System (MI 11-102) is intended to be relied upon in each of the other provinces and territories of Canada (together with the Jurisdiction, the Canadian Jurisdictions).

Interpretation

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

Representations

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

The Filer

1. The Filer is an Ontario limited partnership, which is wholly-owned by the Bank of Nova Scotia (BNS). The general partner of the Filer is 1832 Asset Management G.P. Inc., an Ontario corporation wholly-owned by BNS with its head office located in Toronto, Ontario.

2. The Filer is registered as (i) a portfolio manager in all of the provinces of Canada and in the Northwest Territories and the Yukon; (ii) an exempt market dealer in all of the provinces of Canada except Prince Edward Island and Saskatchewan; (iii) an investment fund manager in Ontario, Québec, Newfoundland and Labrador and the Northwest Territories; (iv) a commodity trading manager in Ontario; (v) a derivatives portfolio manager in Québec; and (vi) an adviser in Manitoba.

3. The Filer, or an affiliate of the Filer, is or will be the investment fund manager of each Fund.

4. The Filer, or an affiliate of the Filer may act as portfolio manager of each Fund or may appoint one or more portfolio managers for a Fund or one or more sub-advisers to provide the Filer with investment advice in respect of a Fund’s investments.

5. The Filer is not in default of securities legislation in any of the Canadian Jurisdictions.

The Funds

6. Each Fund is, or will be, a mutual fund to which NI 81-102 applies (including an alternative mutual fund, a non-alternative mutual fund, an exchange traded mutual fund, or a non-exchange traded mutual fund), subject to any exemptions therefrom that have been, or may be, granted by the applicable securities regulatory authorities.

7. No existing Fund is in default of securities legislation in any of the Jurisdictions.

8. The investment objective and investment strategies of each Fund permit or will permit the Fund to invest in Exchange Traded Specified Derivatives.

9. The investment objective of 1832 AM Tactical Asset Allocation PLUS Pool is to maximize total return over the medium to long term by investing in long and/or short positions of equity securities, fixed income securities and currencies, either directly, or indirectly through investing in exchange traded funds and the use of derivatives, including futures, forward contracts, options and swaps.

10. The investment objective of Dynamic Active Enhanced Yield Covered Options ETF is to seek to achieve long-term capital appreciation by investing in equity securities and writing covered put and covered call options, which generate premiums.

11. The investment objective of Dynamic Premium Balanced Private Pool Class is to seek to provide diversification and long-term capital appreciation by primarily investing in a diversified portfolio of alternative investments and the use of alternative investment strategies including options and short selling strategies.

12. The investment objective of Dynamic Premium Bond Private Pool is to seek to provide income and some long-term capital appreciation by investing primarily in a diversified portfolio of fixed income securities.

13. The investment objective of Dynamic Premium Bond Private Pool Class is to seek to provide income and some long-term capital appreciation by investing primarily in a diversified portfolio of fixed income securities.

14. The investment objective of Dynamic Premium Yield Class is to seek to achieve long-term capital appreciation primarily by investing directly in U.S. equity securities and writing call options on these securities, and/or by writing put options, which generate premium yield.

15. The investment objective of Dynamic Premium Yield Fund is to seek to achieve high income and long-term capital appreciation primarily by writing put options on equity securities to collect premiums, investing directly in equity securities and/or writing call options on these securities.

16. The investment objective of Scotia U.S. $ Balanced Fund is to provide long term capital growth and current income in U.S. dollars. It invests primarily in a combination of fixed income and equity securities that are denominated in U.S. dollars.

17. The investment objective of Scotia Wealth Premium Payout Pool is to seek high income and long-term capital appreciation primarily by writing put options on equity securities to collect premiums, investing directly in equity securities and/or writing call options on these securities.

18. Except to the extent that the Requested Relief is granted and other exemptive relief is applicable, the investment strategies of the Funds are, or will be, limited to the investment practices permitted by NI 81-102.

19. The Filer, portfolio manager or sub-adviser to a Fund is, or will be, authorized to establish, maintain, change and close brokerage accounts on behalf of the Fund. In order to facilitate transactions on behalf of a Fund, the Filer, portfolio manager or sub-adviser to the Fund will establish one or more accounts (each an Account) with one or more Dealers.

The Dealers

20. Each Dealer in Canada (each a Canadian Dealer) is a member of the Canadian Investment Regulatory Organization (CIRO), or successor to CIRO, in Canada and is registered in the applicable Canadian Jurisdictions as a futures commission merchant or equivalent.

21. Each Canadian Dealer is a member of the exchanges, clearing agencies or swap execution facility through which the Exchange Traded Specified Derivatives are primarily traded. Each such exchange, clearing agency and swap execution facility is obliged to apply its surplus funds and the security deposits of its members to reimburse clients of failed members.

22. Each Dealer in the United States (each a U.S. Dealer) is regulated by the Commodity Futures Trading Commission (the CFTC) and the National Futures Association (the NFA), or successor to the CFTC or the NFA, in the United States and is required to segregate the initial margin held on behalf of clients, including the Funds. Each U.S. Dealer is subject to regulatory audit and must have insurance to guard against employee fraud. Each U.S. Dealer has a net worth, determined from its most recent audited financial statements, in excess of the equivalent of C$50 million. Each U.S. Dealer has an exchange assigned to it as its designated self-regulatory organization (DSRO). As a member of a DSRO, each U.S. Dealer must meet capital requirements, comply with the conduct rules of the CFTC, NFA and its DSRO, and participate in an arbitration process with a complainant.

23. Where a U.S. Dealer is not a member of an exchange over which it wishes to effect a trade on behalf of a Fund, it must engage a carrying broker that is a member of such exchange to effect the trade. Consequently, whether the trades are done directly by the U.S. Dealer or through a carrying broker, the U.S. Dealer is required to segregate the assets of the Fund deposited as Initial Margin from the assets of the U.S. Dealer. Each Fund shall deposit portfolio assets as Initial Margin with a U.S. Dealer only if that dealer is required to segregate those portfolio assets from its own assets.

24. A Dealer will require, for each Account, that portfolio assets of the Fund be deposited with the Dealer as collateral for transactions in Exchange Traded Specified Derivatives (Initial Margin). Initial Margin represents the minimum initial amount of portfolio assets that must be deposited with a Dealer to initiate trading in specified derivatives transactions or to maintain the Dealer’s open position in standardized futures.

25. Levels of Initial Margin are established at a Dealer’s discretion. At no time will more than 70% of the NAV of a Fund be deposited as Initial Margin with all Dealers in the aggregate.

26. The records of each Dealer will show that the applicable Fund is the beneficial owner of the Initial Margin, and evidence that, subject to the satisfaction of the Dealer’s applicable margin requirements, the applicable Fund will have the right to the return of the portfolio assets deposited as Initial Margin with the Dealer, such assets being of the same issue as the deposited margin, including the same class and series, if applicable, and having the same current aggregate market value of the deposited margin at the time of such return.

Reasons for the Requested Relief

27. The use of Initial Margin is an essential element of investing in Exchange Traded Specified Derivatives for the Funds.

28. The Requested Relief would allow the Funds to invest in Exchange Traded Specified Derivatives more extensively with any one Dealer, which would allow the Funds to pursue their investment strategies more efficiently and flexibly.

29. Opening Accounts and transacting with multiple Dealers adds complexity and cost to the management of the Funds. Using fewer Dealers will considerably simplify the Funds’ investments and operations and will reduce the cost of implementing each Fund’s strategy. Using fewer Dealers also simplifies compliance and risk management, as monitoring the data, controls and policies of a smaller number of Dealers is less complex.

30. The principal regulator is satisfied that it would not be prejudicial to the public interest to grant the Requested Relief.

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 Requested Relief is granted, provided that:

(a) Each Fund will rely on this decision only with respect to investments in derivatives that are Exchange Traded Specified Derivatives;

(b) Each Fund shall only use Initial Margin such that the amount of Initial Margin held by any one Dealer on behalf of the Fund does not exceed 35% of the net assets of the Fund, taken at market value as at the time of the deposit; and

(c) Each Fund shall only use Initial Margin such that the amount of Initial Margin held by Dealers in aggregate on behalf of each Fund does not exceed 70% of the NAV of each Fund as at the time of the deposit.

“Darren McKall” Darren McKall, Manager Investment Management Division Ontario Securities Commission

Application # 2025/0127

SEDAR+ Project # 6249335