Multilateral Instrument 11-102 Passport System -- the requirement (the Adviser Registration Requirement) in section 74 of the Securities Act (Ontario) that prohibits a person or company from being in the business of advising, unless the person or company is registered in the appropriate category of registration under the legislation, should not apply in respect of the offering of a full service brokerage service (adviceDirect) which includes suitability recommendations through an online platform with involvement by registered representatives -- without the relief with respect to the Adviser Registration Requirement, BMO InvestorLine would be subject to adviser registration since it does not satisfy all the conditions of the adviser registration exemption in section 8.23 of NI 31-103 -- the advice to an adviceDirect client is provided through a combination of online advice and individual dealing representatives and not solely through an individual dealing representatives as is worded in paragraph 8.23(b) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations -- section 74 of the Securities Act (Ontario) and paragraph 8.23(b) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 74(1).
Multilateral Instrument 11-102 Passport System, s. 4.7(1).
National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, s. 8.23(b).
August 1, 2012
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
BMO INVESTORLINE INC.
(the Filer or BMO InvestorLine)
The principal regulator in the Jurisdiction has received an application (the Application) from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the requirement (the Adviser Registration Requirement) in the Legislation that prohibits a person or company from being in the business of advising, unless the person or company is registered in the appropriate category of registration under the Legislation, should not apply in respect of the offering of a full service brokerage service (adviceDirect) which includes suitability recommendations that are (a) in connection with trades in securities that the Filer and its registered representatives are permitted to make under the Filer's registration; (b) provided through an online security trading platform with involvement by registered representatives; and (c) not in respect of a managed account (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission (OSC) is the principal regulator for this decision, 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 all jurisdictions of Canada other than Ontario (collectively, the Non-Principal Jurisdictions, and together with Ontario, the Filing Jurisdictions).
1. BMO InvestorLine:
(a) is a corporation incorporated under the laws of Canada and has its head office in Toronto, Ontario;
(b) is registered in each of the Filing Jurisdictions as an investment dealer and is a member of the Investment Industry Regulatory Organization of Canada (IIROC); and
(c) operates as a discount broker and is exempt from suitability requirements under securities legislation and under IIROC's rules in respect of the discount brokerage service.
2. adviceDirect is a fee-based full service brokerage service offering what IIROC refers to as "advisory accounts" which includes suitability recommendations through an online platform with involvement by registered representatives of BMO InvestorLine (adviceDirect Registered Representatives).
3. adviceDirect takes a long term, disciplined and classical approach to advising clients on their investments and therefore is not suitable for active traders, day traders and other excessive trading strategies. adviceDirect advises clients to diversify their portfolios over various asset classes as opposed to an individual stock picking approach.
4. adviceDirect will not permit clients to short sell securities or trade options or to trade in futures, commodities, or foreign exchange.
5. Four investor profiles are available under adviceDirect. These investor profiles are described to the potential client during the application process and each description includes a statement about time horizon and risk tolerance.
6. adviceDirect is based on an analysis engine that evaluates a client's portfolio holdings against his or her recommended investor profile and then provides recommendations (e.g. buy, hold or sell) directly to the client. A client's portfolio is analyzed on four elements -- ratings, asset allocation, risk and diversification.
7. Each adviceDirect account is subject to continuous overall portfolio suitability review to determine whether the overall composition of the client's portfolio continues to be suitable for the client and the client will be alerted immediately of any discrepancies allowing appropriate corrective action to be taken.
8. A team of adviceDirect Registered Representatives will be assigned to each adviceDirect client.
9. adviceDirect is overseen by a committee, the adviceDirect Review Committee (ARC) that will be comprised of senior management and subject matter experts from BMO InvestorLine and/or BMO Financial Group. Each ARC member will be an IIROC approved person in either an executive, supervisor or registered representative approved category. The ARC members plus various subject matter experts will assist in guiding the future development of adviceDirect; as well as provide input on the operations and performance characteristics of adviceDirect.
10. adviceDirect meets IIROC's suitability assessment requirements subject to any relief from such requirements granted by IIROC to BMO InvestorLine in respect of adviceDirect.
Account opening, collection of know-your-client (KYC) information and recommendation of investor profile
11. The adviceDirect account opening process involves the following four stages (which are summarized in paragraph 13 below):
Stage 1: Collection of personal information and client verification;
Stage 2: Collection of investment related information;
Stage 3: Discussion between adviceDirect Registered Representative and the applicant; and
Stage 4: Review and approval/denial.
12. During the account opening process, the applicant has access to online help and definitions. Explanations about the account opening form are available to the applicant during the account opening process. There are clear and complete descriptions of terminology used in the account opening process and explanations of the reason for collecting the information available to the applicant. The applicant also has the option of contacting an adviceDirect Registered Representative during the account opening process to receive assistance. The adviceDirect account opening process also includes each applicant being called by an adviceDirect Registered Representative to discuss his or her application prior to the application being approved (as described under Stage 3 in paragraph 13 below).
13. The following is a summary of the components of the KYC information collected during each stage of the adviceDirect account opening process.
(a) Personal information and client verification: The initial stage of the adviceDirect account opening process collects information about the applicant including name, address, email address, citizenship, SIN number, type of account and where applicable, credit history. After this information is collected, adviceDirect conducts an authentication of the applicant using the services of Equifax Canada Inc.
(b) Once the authentication process has been completed, the applicant will be permitted to continue with the account opening process and will be required to provide further information including employment, income, net worth and sources of funds.
(c) Investment objectives, investment needs and time horizon: After providing the personal information described above, the applicant is asked to set out his or her investment objectives, investment needs and time horizon through a series of questions which will help identify the applicant as having either an income, balanced, growth or aggressive objective.
(d) Investment knowledge and experience: adviceDirect also collects information about the applicant's investment knowledge -- the categories are Limited (little understanding of investing and limited experience with different types of investments), Average (understand investing basics and have some experience with different types of investments), Good (comfortable understanding of investing and a good deal of experience with different types of investments) and Expert (excellent understanding of investing and a great deal of experience with a variety of investments and strategies).
(e) An applicant is asked about investing experience with various investment products such as cash, fixed income securities and equities. In each of these categories there are questions about whether the applicant has obtained experience with specific products such as treasury-bills, bonds, income trusts or private placements.
(f) Risk tolerance and account objectives: An applicant is asked about his or her risk tolerance and account objectives in the application. In addition, the adviceDirect Registered Representative will discuss the applicant's risk tolerance and account objectives directly with the applicant during Stage 3 of the account opening process.
(g) Investor profile: There are four investor profiles available under adviceDirect -- income, balanced, growth and aggressive growth. As part of the online application, an adviceDirect applicant is asked to identify (either independently or with the assistance of an online investor profile questionnaire that the applicant has the option of completing) which investor profile he or she believes best suits him or her however, it is the adviceDirect Registered Representative's responsibility to recommend a suitable investor profile for each applicant.
(h) Discussion with adviceDirect Registered Representative: Prior to the account application being approved, an adviceDirect Registered Representative will call the applicant after the application has been completed to discuss the application including the following:
(i) the nature of the adviceDirect service offering, including the fees associated with the account, the order types that are permitted under adviceDirect, the suitability notifications and how they work and funding of the account;
(ii) the applicant's risk tolerance, investment knowledge, investment objectives, investment needs, investment time horizon, account objectives and any other relevant information, so that the applicant has a clear and complete understanding of why the information was gathered, and how adviceDirect uses the information to ensure suitable recommendations are made for the individual;
(iii) the investor profile identified by the applicant (either independently or with the assistance of the online investor profile questionnaire) in the online application. The adviceDirect Registered Representative is responsible for making a recommendation about which investor profile is suitable for the applicant based on the KYC information collected online (including the answers to the online investor profile questionnaire if completed) and the discussion between the applicant and the adviceDirect Registered Representative. If none of the four investor profiles available under adviceDirect is suitable for the applicant, or if the adviceDirect Registered Representative has determined that an adviceDirect account is not suitable for the applicant, the adviceDirect Registered Representative will not recommend that the applicant open an adviceDirect account and that the application be denied.
(i) The KYC information collected through the online application process and during the discussion between an applicant and an adviceDirect Registered Representative will be documented.
(j) The Filer will maintain appropriate systems to ensure that accurate records of all communications and transactions that occur on the adviceDirect platform are kept to ensure that a compliance review can be conducted.
(k) Final review and approval: Each completed application is reviewed by the adviceDirect Supervisor in accordance with BMO adviceDirect written policies and procedures and then the approval or denial decision is made. If none of the four investor profiles available under adviceDirect is suitable for the applicant, or if an adviceDirect account is not suitable for the applicant, the application will not be approved. As well, an application will not be approved if the investor profile identified in the application form is not the same as the investor profile recommended for the applicant by the adviceDirect Registered Representative. If an applicant insists on an investor profile that is not suitable for him or her, based on the adviceDirect Registered Representative's assessment, an adviceDirect account will not be opened for the applicant.
Account supervision, suitability and the role of adviceDirect Registered Representatives
14. The ultimate designated person, chief compliance officer and other supervisory registrants of BMO InvestorLine will be accountable for adviceDirect and will be reporting to the BMO InvestorLine Board of Directors on a semi-annual basis.
15. Each client's adviceDirect account will be documented and approved in accordance with applicable IIROC rules, other relevant securities legislation and BMO InvestorLine's policies and procedures.
16. BMO InvestorLine has written policies and procedures with respect to adviceDirect which set out a level of account supervision that complies with IIROC's rules and is conducted through a combination of proprietary computer systems and dealing representative interaction.
17. Once an adviceDirect account has been opened for a client, the client will have his or her account supervised by BMO InvestorLine in the following way:
(a) continuous monitoring by adviceDirect to determine whether the overall composition of a client's portfolio continues to be suitable for the client;
(b) daily and monthly supervisory activities performed by the applicable adviceDirect Supervisor in accordance with IIROC's rules for two-tier reviews which includes monthly monitoring by adviceDirect Registered Representatives of the client's portfolio and trading activity including the occurrences of suitability alerts generated by adviceDirect;
(c) daily and monthly supervisory activities performed by BMO InvestorLine's Compliance Department in accordance with IIROC's rules for two-tier reviews; and
(d) at a minimum, an annual review by an adviceDirect Registered Representative.
18. Each adviceDirect account is subject to continuous overall portfolio suitability review to ensure the level of risk in the portfolio is suitable for the client and that the portfolio is aligned with the client's investor profile. The suitability assessment of a client's portfolio will be based on three parameters: asset allocation, risk and diversification. For each type of investor profile there are specific thresholds with respect to equities and fixed income which are set out in the investor profile descriptions. The suitability assessment will take into consideration the thresholds for the client's specific investor profile, and the specific holdings in the client's portfolio to determine the suitability of the portfolio in order to make the appropriate recommendations.
19. An adviceDirect client can transfer his or her existing securities holdings into the adviceDirect account in which case, these securities will be subject to a suitability assessment by adviceDirect (i.e., if the asset allocation/securities transferred are not suitable based on the recommended investor profile, the suitability escalation process will ensue and the client will be prompted to take remedial action).
20. If a client attempts to execute a transaction that is considered by adviceDirect to be unsuitable for the client, a message will be displayed warning the client of the unsuitability of the potential transaction. The client may decide to amend his or her order or continue with the original order after acknowledging having received the warning message.
21. A client's KYC information is kept updated through a process of electronic communications and discussions with an adviceDirect Registered Representative.
22. When a client experiences a material change in circumstances, he or she will fill out a material change form with the updated KYC information and provide the form to BMO InvestorLine. Material change forms are reviewed by the adviceDirect Supervisor or an adviceDirect Registered Representative as per the standards for opening a new account. adviceDirect clients will be prompted in various ways to provide updated KYC information. For example, a message to adviceDirect clients will appear at least twice a year on a client's account statement asking if the client's circumstances have changed and telling him or her how to update the information. As well, when a client is contacted directly by an adviceDirect Registered Representative regarding a suitability issue with his or her portfolio, the client will be asked to confirm if there are any changes to his or her KYC information. And, as part of the account supervision process, each client will be contacted directly by an adviceDirect Registered Representative on an annual basis at a minimum who will discuss, among other things, whether there have been any changes to the client's KYC information. Additional methods for clients to provide updated KYC information may be added to adviceDirect from time to time.
23. An adviceDirect Registered Representative's role in respect of adviceDirect clients includes:
(a) account opening review as described above, including making recommendations as to the suitability of the account itself and the investor profile for each adviceDirect client;
(b) ongoing account supervision;
(c) conducting a suitability assessment for a client when requested by the client; and when required under the adviceDirect suitability alert process;
(d) market commentary discussing economic and market updates relevant to a client's portfolio;
(e) research; and
(f) execution of trades.
24. The adviceDirect Registered Representatives will be determining the appropriateness of the adviceDirect service and the account types available under adviceDirect at all times including when marketing adviceDirect to prospective new clients.
adviceDirect client disclosure
25. In addition to the disclosure of information made during the account opening process as described above, information will also be disclosed to an adviceDirect client after his or her account is approved as follows:
(a) when the client signs onto his or her adviceDirect account, the information provided to the client includes:
• Client Agreement (contains disclosure items required by law)
• 90-day trial period terms and conditions
• Protecting your privacy (disclosure about BMO's privacy code)
• Canadian Investor Protection Fund (description of how CIPF operates)
• adviceDirect fee schedule
• Investor's guide to making a complaint
• Opening your retail account (IIROC brochure)
• Conflicts Disclosure Document
• About adviceDirect (described in paragraph 26 below);
(b) each client may also receive a call once the account is funded; and
(c) educational material covering various aspects of adviceDirect will be available to adviceDirect clients.
26. Specific information about the availability of continuous suitability monitoring and about the recommendations that an adviceDirect Registered Representative can make under the adviceDirect service are contained in the Client Agreement and in a plain language document called About adviceDirect. Both documents are made available to the client when his or her account is opened and will be available to clients through the adviceDirect website.
adviceDirect investment recommendations
27. adviceDirect will generate recommendations about equity and mutual fund investments. An adviceDirect client will also be able to choose from a list of fixed income securities identified by BMO InvestorLine.
28. An adviceDirect client will have access to information about the securities that adviceDirect recommends. The client will be able to access information from MarketGrader (with respect to equities) and Lipper (with respect to mutual funds) that is specific to the security being recommended. In addition, there is a "Research" tab the client can access to obtain a variety of research information from third-party entities including research on a specific security (e.g. research from S&P Research), ratings on securities by various analysts, and general economic research.
29. adviceDirect Registered Representatives will be available from 8:00 a.m. to 8:00 p.m. (ET) to discuss recommendations generated by adviceDirect with clients.
Conflicts of interest
30. Recommendations provided by adviceDirect are not produced in such a way as to favour related-party securities over third-party securities or to result in increased sales of related party products. There is no bias towards related party securities in any of the investor profiles or asset class mixes. adviceDirect's recommendations may include a BMO Financial Group product in addition to third-party products.
31. Where securities offered by any BMO InvestorLine affiliated entity are recommended, adviceDirect will provide clear and accurate disclosure to clients specifically advising them of this fact. When an adviceDirect client enters an order for a related or connected issuer, there will be a notification directly on the order entry screen itself before the trade is executed, stating that the security is issued by a related or connected issuer of BMO InvestorLine. While no acknowledgement of the notification is required by the client, on the order entry screen, there will be a link to the conflicts of interest disclosure document which the client may access.
32. The compensation structure for adviceDirect Registered Representatives is non-commission based and there is no incentive within the compensation structure that encourages the sale of related party securities over the sale of non-related party securities.
33. BMO InvestorLine may receive trailer fees in respect of some mutual funds held by a client in an adviceDirect account and therefore, the value of those mutual fund units which pay the trailer fee to BMO InvestorLine will be excluded in calculating the fee payable by a client for his or her adviceDirect account. Since an adviceDirect account is a fee-based account, no commission will be paid to BMO InvestorLine in respect of a trade in mutual fund units by an adviceDirect client.
34. Under National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103), there is a general exemption (section 8.23 of NI 31-103) for dealers, and dealing representatives acting on behalf of the dealer, from the adviser registration requirement when giving non-discretionary advice (i.e., suitability recommendations) in the ordinary course of the dealer's business if the advice is
(a) in connection with a trade in a security that the dealer and the representative are permitted to make under his, her or its registration;
(b) provided by the representative; and
(c) not in respect of a managed account.
35. Without the Exemption Sought with respect to the Adviser Registration Requirement, BMO InvestorLine would be subject to adviser registration since it does not satisfy all the conditions of the adviser registration exemption in section 8.23 of NI 31-103 because the advice to an adviceDirect client is provided through a combination of online advice and individual dealing representatives and not solely through an individual dealing representative as worded in paragraph 8.23(b) of NI 31-103.
The Decision Maker being satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the decision has been met.
The decision of the Decision Maker under the Legislation is that the Exemption Sought is granted provided that
(a) the Filer is a member of IIROC;
(b) adviceDirect offers only what IIROC refers to as "advisory accounts";
(c) the Filer is in compliance with any relief granted by IIROC to the Filer in respect of adviceDirect;
(d) proprietary websites relating to adviceDirect, adviceDirect brochures and any other documents describing the adviceDirect offering state the following: "An adviceDirect account is a non-discretionary fee based account which offers investment recommendations. adviceDirect does not provide portfolio management by a portfolio manager. The client makes their own investment decisions and manages their own investment portfolio. adviceDirect does not offer discretionary, managed accounts.";
(e) the Filer provides the OSC with a report with respect to adviceDirect concerning the items set out in Appendix A hereto (i) six months after the launch date, (ii) one year after the launch date, and (iii) thereafter, as agreed to between the Filer and the OSC;
(f) this Decision shall terminate in a Filing Jurisdiction upon the implementation in the Filing Jurisdiction of a rule, other instrument, or amendments, by the Filing Jurisdictions that governs the provision of the offering of a full service brokerage service including suitability recommendations through an online platform with involvement by registered representatives.
1. Any system integrity and compliance deficiency related issues identified and any steps taken to address those issues
2. Any other information requested by OSC staff including, but not limited to, details relating to:
• all suitability alerts subject to the escalation process
• product related suitability issues
• order type related suitability issues
• order control issues including market volatility control issues
• unreasonable recommendations generated by the adviceDirect system
• system failures
• integrity of the information provided by the third party vendors
• compliance deficiencies identified by internal and external auditors or adviceDirect's Advisory Review Committee
• denials and related statistical data (e.g., how often does a registered representative conclude that the adviceDirect account is not suitable for an individual, how often does a registered representative disagree with an individual about the individual's self-selected investor profile, and accordingly, does not recommend that investor profile to the individual in question)