Mutual Reliance Review System for ExemptiveRelief Applications -- Relief granted to certain vice presidentsof a reporting issuer from the insider reporting requirementssubject to certain conditions -- vice presidents satisfy criteriacontained in Canadian Securities Administrators Staff Notice55-306 Applications for Relief from the Insider Reporting Requirementsby Certain Vice-Presidents.
Securities Act, R.S.O. 1990, c. S.5, as am.,ss. 1(1), 107, 108, 121(2)(a)(ii).
Regulation made under the Securities Act, R.R.O.1990, Reg. 1015, as am., Part VIII.
National Instrument 55-101 - Exemption fromCertain Insider Reporting Requirements.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
ALBERTA, BRITISH COLUMBIA,MANITOBA,
NEWFOUNDLAND AND LABRADOR,NOVA SCOTIA,
ONTARIO, QUEBEC, AND SASKATCHEWAN
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
THE BANK OF NOVA SCOTIA
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof Alberta, British Columbia, Manitoba, Newfoundland and Labrador,Nova Scotia, Ontario, Québec and Saskatchewan (collectively,the "Jurisdictions") has received an application fromThe Bank of Nova Scotia ("Scotiabank" or the "Bank")for a decision pursuant to the securities legislation of theJurisdictions (the "Legislation") that the requirementscontained in the Legislation to file insider reports with respectto securities of the Bank and with respect to securities ofreporting issuers of which the Bank is an insider shall notapply to certain individuals who are insiders of Scotiabankby reason of having the title of Vice-President or performingfunctions similar to those normally performed by an individualoccupying such office ("acting in a similar capacity");
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the Ontario Securities Commission is the principal regulatorfor this application;
AND WHEREAS unless otherwise defined,the terms herein have the meaning set out in National Instrument14-101 Definitions or in Quebec Commission Notice 14-101;
AND WHEREAS Scotiabank has representedto the Decision Makers that:
1. Scotiabank is a Schedule I Canadian charteredbank governed by the Bank Act (Canada), having itshead office in Halifax, Nova Scotia and executive officesin Toronto, Ontario.
2. Scotiabank is a reporting issuer (or equivalent)in each province and territory of Canada, and is not in defaultof any requirements under the Legislation.
3. Scotiabank common shares are listed andposted for trading on The Toronto Stock Exchange, the LondonStock Exchange and the New York Stock Exchange. The preferredshares trade on The Toronto Stock Exchange.
(a) At April 30, 2003, it is estimated thatapproximately 1,000 individuals are insiders of Scotiabankby reason of being a senior officer or director of Scotiabankor a subsidiary of Scotiabank.
(b) Of these, all but approximately 609individuals are currently exempt from the insider reportingrequirements of the Legislation by reason of existing ordersand/or the exemptions contained in National Instrument 55-101Exemption from certain Insider Reporting Requirements("NI 55-101").
(c) Exemptive relief from insider reportingrequirements is sought under this application for presentand future insiders of the Bank, which includes approximately479 persons who are currently insiders of the Bank and meetthe criteria for exemption.
(d) The Bank is and may from time to timebe an insider of certain reporting issuers, as a resultof which the Bank's insiders would be required to file insiderreports in respect of those reporting issuers, subject toapplicable exemptions. Accordingly, the Bank is seekingexemptive relief in this application from the insider reportingrequirements both with respect to securities of the Bankand with respect to securities of reporting issuers of whichthe Bank is an insider, presently or in future. As at April30, 2003, the Bank was an insider of eight reporting issuers,namely: Scotia Mortgage Investment Corporation, AutomodularCorporation, Conor Pacific Group Inc., Datawest SolutionsInc., Sierra Wireless, Inc., Sterne Stackhouse Inc., BNSCapital Trust, Scotiabank Capital Trust.
5. Scotiabank has made this application toseek the requested relief in respect of individuals who are,or may be in future, insiders of the Bank and who satisfythe following criteria to be designated as an "ExemptInsider" (the "Exempt Insider Criteria"):
(a) the individual is a Vice-President orperson acting in a similar capacity;
(b) the individual is not in charge of aprincipal business unit, division or function of the Bankor a "major subsidiary" of the Bank (as such termis defined in NI 55-101);
i) in the case of relief from insiderreporting requirements with respect to securities of theBank, the individual does not in the ordinary course receiveor have access to information as to material facts ormaterial changes concerning the Bank before the materialfacts or material changes are generally disclosed;
ii) in the case of relief from insiderreporting requirements with respect to securities of areporting issuer in respect of which the Bank is an insider,the individual has satisfied the criteria in paragraph5(c)(i) above and the individual does not in the ordinarycourse receive or have access to information as to materialfacts or material changes concerning such reporting issuerbefore the material facts or material changes are generallydisclosed; and
(d) the individual is not an insider ofthe Bank or the reporting issuer, as the case may be, inany other capacity.
(a) For purposes of this application andidentification of Exempt Insiders, Scotiabank's Group Compliancedepartment, in consultation with the heads of various businessunits and operational groups and certain other officers,has assessed each Vice-President and person acting in asimilar capacity in relation to their principal functionand in relation to access in the ordinary course to non-publicmaterial information about Scotiabank.
(b) It is proposed that Scotiabank's GroupCompliance department will reassess Exempt Insiders as individualroles change (such as advancement/promotion or departmentalchange) and a similar assessment will be made in respectof all new appointments, to determine in each event whetherthe individual, respectively, will continue to be or willbe an Exempt Insider.
(c) It is proposed that an assessment willbe made in respect of each reporting issuer of which theBank is an insider, to determine Exempt Insiders with respectto filing reports of securities of that reporting issuer.
(d) Appropriate notification of the requirementto file insider reports will be provided to insiders whodo not meet the criteria for exemption.
7. Scotiabank has well-established internalpolicies and procedures relating to monitoring and restrictingthe trading activities of its insiders and other persons.These include "windows" and "blackout"period policies, monitoring of personal trading accounts andrequirements for pre-clearance of certain trades. The policiesand procedures also relate to identification and handlingof non-public material information and prohibit improper communicationand use of such information.
8. In connection with this application, Scotiabankhas filed with the Decision Makers a summary of its internalpolicies and procedures relating to monitoring and restrictingthe trading activities of its insiders and other persons whosetrading activities are restricted by Scotiabank.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that the requirements contained in the Legislationto file insider reports
i) with respect to securities of the Bank;and
ii) with respect to securities of reportingissuers of which the Bank is an insider, presently or in future,
shall not apply to insiders of Scotiabank, existingand future, who satisfy the Exempt Insider Criteria, for solong as such insiders satisfy the Exempt Insider Criteria, providedthat:
(a) Scotiabank agrees to make available tothe Decision Makers, upon request, to the extent permittedby law, a list of all individuals who are relying on the exemptiongranted by this Decision as at the time of the request; and
(b) the relief granted will cease to be effectiveon the date when NI 55-101 is amended.
June 4, 2003.
"Paul M. Moore"
"Harold P. Hands"