Relief from the adviser registration requirementof paragraph 22(1)(b) of the Commodity Futures Act (Ontario)(CFA) granted to a non-resident adviser in connectionwith the proposed advisory services to be provided to a registeredcommodity trading manager under the CFA for a term of 3 years,subject to certain terms and conditions, pursuant subsection38(1) of the CFA.
Commodity Futures Act, R.S.O. 1990, c. C.20,as am., ss. 22(1) & 38(1).
Securities Act, R.S.O. 1990, c. S.5, as am.- Rule 35-502 -- Non Resident Advisers.
IN THE MATTER OF
THE COMMODITY FUTURES ACT,
R.S.O. 1990, CHAPTER S.20,AS AMENDED (the CFA)
IN THE MATTER OF
BRADBROOKE CAPITAL HOLDINGS,INC.
(Subsection 38(1) of the CFA)
UPON the application (the Application)of Bradbrooke Capital Holdings, Inc. (Bradbrooke) tothe Ontario Securities Commission (the Commission) fora ruling pursuant to subsection 38(1) of the CFA that Bradbrookeand its directors, officers and representatives be exempt fromthe registration requirements of clause 22(1)(b) of the CFA.
AND UPON considering the Applicationand the recommendations of staff of the Commission;
AND UPON Bradbrooke having representedto the Commission that:
1. Bradbrooke is a corporation incorporatedunder the laws of the State of Delaware, U.S.A. Its head officeis located in Great Barrington, Massachusetts.
2. Bradbrooke is currently registered as acommodity trading advisor and commodity pool operator withthe U.S. Commodities Futures Trading Commission and is a memberof the U.S. National Futures Association.
3. Bradbrooke has negotiated a sub-advisoryinvestment management agreement (the Agreement) withHorizons Fund Inc., the manager of Horizon Global Macro Fund(the Fund), and Toron Capital Markets Inc. (Toron),the adviser to the Fund. As the sub-adviser to the Fund, Bradbrookewill provide investment advice to Toron with respect to commodityfutures contracts and related products that trade on commodityfutures exchanges (the Proposed Advisory Services).Bradbrooke will also provide investment advice to Toron withrespect to securities.
4. Toron is registered with the Commissionas an adviser in the categories of investment counsel andportfolio manager, as a limited market dealer under the SecuritiesAct (Ontario) (the Act), and as a commodity tradingmanager under the CFA.
5. The Fund is an open-ended mutual fund establishedunder the laws of British Columbia.
6. The Fund is a mutual fund as such termis defined in subsection (1) of the Act and is a commoditypool as such term is defined in subsection 1(1) of MultilateralInstrument 81-104.
7. Toron will be responsible for providinginvestment advice to the Fund and will be responsible forthe investment advice provided by Bradbrooke.
8. Pursuant to the terms of the Agreement,Toron shall be responsible for any loss that arises as a resultof Bradbrooke failing to:
(a) exercise its powers and discharge itsduties honestly, in good faith and in the best interestsof the Fund; or
(b) exercise the degree of care, diligenceand skill that a reasonably prudent person would exercisein the circumstances
(the Standard of Care).
9. Bradbrooke will only provide the ProposedAdvisory Services to Toron pursuant to this ruling so longas Toron is registered as an adviser under the Act and asa commodity trading manager under the CFA.
10. The offering documents of the Fund willdisclose that Toron will be responsible for Bradbrooke's investmentadvice and that to the extent applicable, there may be difficultyin enforcing any legal rights against Bradbrooke as it isnot resident in Canada and as all or a substantial portionof its assets are situated outside of Canada.
AND UPON the Commission being satisfiedthat it would not be prejudicial to the public interest forthe Commission to grant the requested relief;
IT IS ORDERED pursuant to subsection38(1) of the CFA that Bradbrooke, its directors, officers andrepresentatives are exempt from the registration requirementsof clause 22(1)(b) of the CFA with respect to the Proposed AdvisoryServices to be provided by Bradbooke to Toron, provided that:
(a) the obligations and duties of Bradbrookeare set out in the Agreement;
(b) the Agreement states that Toron will beresponsible for any loss that arises as a result of Bradbrookefailing to meet the Standard of Care, and that such responsibilitycannot be waived;
(c) the offering documents of the Fund statethat:
(i) Toron will be responsible for any lossthat arises as a result of Bradbrooke failing to meet theStandard of Care;
(ii) Toron will be responsible for any advicegiven by Bradbrooke; and
(iii) there may be difficulty in enforcingany legal rights against Bradbrooke as it is not residentin Canada and as all or a substantial portion of its assetsare situated outside of Canada;
(d) Bradbrooke maintains its registrationwith the CFTC as a commodity trading advisor and commoditypool operator;
(e) Bradbooke will only provide the ProposedAdvisory Services to Toron pursuant to this ruling so longas Toron is registered as an adviser under the Act and asa commodity trading manager under the CFA; and
(f) this ruling shall terminate three yearsfrom the date hereof.
August 29, 2003.
"Wendell S. Wigle"
"H. Lorne Morphy"