Subsection 38(1) of the Commodity Futures Act(Ontario) (the CFA) - relief from the registration requirementsof paragraph 22(1)(b) of the CFA granted to an extra-provincialadviser in respect of the provision of advisory services relatingto futures contracts to a mutual fund that does not have anaddress in Ontario, subject to certain terms and conditions.
Commodity Futures Act, R.S.O. 1990. c. C.20.,as am., ss. 22(1)(b), 38(1).
IN THE MATTER OF
THE COMMODITY FUTURES ACT
R.S.O. 1990, CHAPTER C.20,AS AMENDED (the CFA)
IN THE MATTER OF
PHILLIPS, HAGER & NORTHINVESTMENT MANAGEMENT LIMITED PARTNERSHIP
UPON the application of Phillips, Hager& North Investment Management Limited Partnership (the Applicant)to the Ontario Securities Commission (the Commission) for aruling under subsection 38(1) of the CFA that the Applicantand its partners, officers and employees are not subject tothe requirements of paragraph 22(1)(b) of the CFA with respectto advice provided to mutual funds (collectively, the Funds)managed by Phillips, Hager & North Investment ManagementLtd. (PH&N), the general partner of the Applicant, withrespect to commodity futures contracts and commodity futuresoptions;
AND UPON considering the applicationand the recommendation of the staff of the Commission;
AND UPON the Applicant having representedto the Commission that:
1. The Applicant is a limited partnershiporganized under the laws of British Columbia pursuant to alimited partnership agreement made effective October 25, 2002.PH&N is the general partner of the Applicant and the shareholdersof PH&N are its limited partners.
2. The head office of the Applicant is locatedin British Columbia. The Applicant does not have an addressin Ontario.
3. The Applicant is registered as an adviserin the category of portfolio manager under the SecuritiesAct (British Columbia) (the BCSA). This registration permitsthe Applicant to provide advice in British Columbia with respectto securities (including futures and options) and exchangecontracts within the meaning of the BCSA.
4. PH&N is the manager and principal portfolioadvisor of the Funds which are organized under the laws ofBritish Columbia. The head office of each of the Funds islocated in British Columbia. None of the Funds has an addressin Ontario.
5. Units of the Funds are distributed in Ontarioeither pursuant to a simplified prospectus filed with theCommission or pursuant to exemptions from the prospectus requirementsunder the Securities Act (Ontario) (the OSA).
6. The Applicant is the sub-adviser to PH&Nwith respect to the Funds. The Applicant wishes to advisethe Funds with respect to commodity futures contracts andcommodity futures options within the meaning of the CFA.
AND WHEREAS paragraph 22(1)(b) of theCFA prohibits a person or company from acting as an adviserunless the person is registered as an adviser, or is registeredas a partner or an officer of a registered adviser and is actingon behalf of a registered adviser, and the registration is inaccordance with the CFA and the regulations;
AND UPON the Commission being satisfiedthat to make this ruling would not be prejudicial to the publicinterest;
IT IS ORDERED pursuant to subsection38(1) of the CFA that the Applicant and its partners, officersand employees are not subject to the requirement of paragraph22(1)(b) of the CFA in respect of the advice it provides tothe Funds, provided that:
(a) all advice by the Applicant to the Partnershipis given and received, or portfolio management services areprovided, outside of Ontario;
(b) the Applicant remains registered underthe BCSA and permitted to provide advice in British Columbiawith respect to exchange contracts;
(c) the Applicant and the Funds continue notto have addresses in Ontario; and
(d) this Order shall terminate three yearsfrom the date of the Order.
May 23, 2003.
"H. Lorne Morphy"
"Robert W. Korthals"