Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Application for relief from prospectus delivery requirement -- Relief granted from requirement to deliver prospectus subject to dealers sending or delivering a prescribed summary document to purchasers with trade confirmation when acting as agent of the purchaser -- Relief conditional on implementing alternative prospectus delivery requirement -- Relief subject to sunset clause -- Securities Act (Ontario).

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., ss. 71(1), 147.

[Translation]

November 5, 2014

IN THE MATTER OF THE SECURITIES LEGISLATION OF QUÉBEC AND ONTARIO (the Jurisdictions) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF TIMBER HILL CANADA CO. (the Filer)

DECISION

Background

The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) for exemptive relief from the Prospectus Delivery Requirement (as defined below) in connection with distributions of an ETF Security (as defined below) (the Exemption Sought).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):

(a) the Autorité des marchés financiers is the principal regulator for this application; and

(b) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.

Interpretation

Terms defined in Regulation 14-101 respecting Definitions (c. V-1.1, r.3), and Regulation 11-102 respecting Passport System (c. V-1.1, r.1) have the same meaning if used in this decision, unless otherwise defined.

Authorized Dealer means a registered dealer that has entered, or intends to enter, into an agreement with an ETF Manager authorizing the dealer to subscribe for, purchase and redeem Creation Units from one or more ETFs on a continuous basis from time to time.

Creation Units means newly issued ETF Securities.

Designated Broker means a registered dealer that has entered, or intends to enter, into an agreement with an ETF Manager to perform certain duties in relation to the ETF, including posting a liquid two-way market for the trading of the ETF's listed securities on an exchange or another marketplace.

ETF means an open end mutual fund of which a class of securities is listed on an exchange in a jurisdiction of Canada.

ETF Manager means the duly registered investment fund manager of an ETF.

ETF Security or ETF Securities means a listed security or listed securities of an ETF in a jurisdiction of Canada.

Prospectus Delivery Requirement means the requirement under the Legislation that obligates a dealer to send or deliver to the subscriber or the purchaser or their representative, within a specified time period and in a specified manner, the prospectus, and any amendment to the prospectus, in respect of an application to subscribe for or purchase securities offered in a distribution. In Québec, this requirement is set forth in section 29 of the Securities Act, R.S.Q. c. V-1.1. Collectively, these requirements are referred to as the Prospectus Delivery Requirements.

Prospectus Right of Rescission means the right of action, given to a person under the Legislation, for rescission of, or the revision of the price of, the subscription or purchase of an ETF Security or for damages against a dealer for the failure of the dealer to send or deliver a prospectus to the subscriber or the purchaser or its agent to whom a prospectus, and any amendment, was required to be sent or delivered pursuant to the Prospectus Delivery Requirement. In Québec, as set forth in section 214 of the Securities Act, R.S.Q. c. V-1.1, such a subscriber or a purchaser may apply to have the transaction rescinded or the price revised, at the subscriber's or the purchaser's option, without prejudice to the subscriber's or the purchaser's claim for damages. Collectively, these rights are referred to as the Prospectus Rights of Rescission.

Right of Withdrawal means the right, given to a subscriber or a purchaser under the Legislation, to withdraw from a subscription for or a purchase of securities offered in a distribution if the dealer from which the subscriber or the purchaser subscribed or purchased the securities receives written notice evidencing the intention of the subscriber or the purchaser not to be bound by the subscription or the purchase within two business days of receipt of the latest prospectus or any amendment to the prospectus. In Québec, this right is set forth in section 30 of the Securities Act, R.S.Q. c. V-1.1. Collectively, these rights are referred to as the Rights of Withdrawal.

Trade Confirmation Right of Rescission means the right, given to a subscriber or purchaser of an ETF Security under the securities legislation of some Canadian jurisdictions in certain circumstances, to rescind the subscription or the purchase within 48 hours after receiving confirmation of the subscription or the purchase.

Representations

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

1. The Filer is registered in the category of investment dealer in both Ontario and Québec. The Filer is registered as derivatives dealer in Québec.

2. The Filer is a member of the Investment Industry Regulatory Organization of Canada.

3. The Filer is an approved participant on the Montréal Exchange. The Filer is also a participating organization of the Toronto Stock Exchange.

4. The head office of the Filer is located at 1800, McGill College Avenue, Suite 2106, Montreal, Québec H3A 3J6.

5. The Filer's business strictly involves proprietary trading, primarily as a market maker in equity options listed for trading on the Montréal Exchange, including options on ETF Securities. The Filer also accepts orders from its affiliates for execution on the Montréal Exchange.

6. As a result of the Filer's market making activity on options on ETF Securities, the Filer may find it more efficient to periodically reduce or increase its market exposures by creating and redeeming ETF Securities. This activity and the agreement to be entered into with relevant ETF Managers cause the Filer to qualify as an Authorized Dealer, as such term is defined herein.

7. It is possible that the Filer, in the future, enter into agreements with relevant ETF Managers to perform certain duties in relation to the ETF, causing the Filer to qualify as a Designated Broker, as such term is defined herein.

8. ETF Securities are, or will be, distributed on a continuous basis in one or more Canadian jurisdictions pursuant to a prospectus. ETF Securities are generally only subscribed for or purchased directly from the ETF by Authorized Dealers or Designated Brokers. Investors are generally expected to purchase ETF Securities through dealers executing trades using the facilities of an exchange or another marketplace. ETF Securities may also be issued directly to ETF investors upon the reinvestment of distributions of income or capital gains.

9. The Filer is, or may in the future be, an Authorized Dealer and/or Designated Broker that from time to time subscribes for and purchases Creation Units directly from one or more ETFs. The Filer is also generally engaged in purchasing and selling ETF Securities of the same class as the Creation Units in the secondary market. Creation Units are generally commingled with ETF Securities purchased in the secondary market. As such, it is not practicable for the Filer to determine whether a particular re-sale of ETF Securities involves Creation Units or ETF Securities purchased in the secondary market.

10. The Filer may also be engaged in purchasing and selling, in the secondary market, ETF Securities of ETFs for which it is not an Authorized Dealer or Designated Broker.

Prospectus Delivery Requirement

11. Each Decision Maker has advised the Filer that it takes the view that the first re-sale of a Creation Unit on an exchange or another marketplace in Canada will generally constitute a distribution of Creation Units under the Legislation and that the Filer is subject to the Prospectus Delivery Requirement in connection with such re-sales. Re-sales of ETF Securities purchased by the Filer in the secondary market that are not Creation Units would not ordinarily constitute a distribution of ETF Securities.

12. Compliance with the Prospectus Delivery Requirement is not practicable in the circumstances of re-sales of Creation Units on an exchange or another marketplace by the Filer as the Filer will often not know the identity of a subscriber or a purchaser and will generally not know whether a sale involves Creation Units.

13. The Prospectus Delivery Requirement affects purchasers of ETF Securities differently depending upon whether their purchase order is filled through the re-sale of Creation Units or through a secondary market trade. The Prospectus Delivery Requirement also affects purchasers of ETF Securities differently from subscribers of conventional mutual funds securities because only re-sales of ETF Securities that are Creation Units generally constitute distributions under the Legislation.

14. The Filer, if acting for a purchaser of an ETF Security, would be required under the Legislation to deliver a trade confirmation to the purchaser in connection with each trade of an ETF Security, unless the Filer is exempt from the requirement in respect of a particular trade. Purchasers of ETF Securities will be better served if the Filer sends or delivers a prescribed summary disclosure document to all purchasers of ETF Securities who are customers of the Filer at the same time as they deliver the trade confirmation, regardless of whether the purchaser's order is filled through the re-sale of a Creation Unit, or through the re-sale of an ETF Security purchased in the secondary market.

15. Various ETF Managers have obtained relief from the requirements to include an underwriter's certificate in Canadian jurisdictions where the applicable securities legislation contains such an obligation and to include a statement respecting subscribers' or purchasers' statutory rights of withdrawal and rescission in an ETF's prospectus (the ETF Relief). Conditions of the ETF Relief include that an ETF must file a prescribed summary disclosure document with the applicable Canadian jurisdictions on SEDAR (the Summary Document).

Civil Liability for Prospectus Misrepresentations

16. The liability, under the prospectus civil liability provisions of the Legislation, of an ETF or its investment fund manager for a misrepresentation in a prospectus, will not be affected by the grant of an exemption from the Prospectus Delivery Requirement. Under such provisions, purchasers of Creation Units offered by a prospectus during the period of distribution have a right of action for damages against the ETF and its investment fund manager without regard to whether the purchaser relied on the misrepresentation and whether or not the purchaser in fact received a copy of the prospectus. Under the secondary market disclosure civil liability provisions of the Legislation, purchasers of ETF Securities that are not Creation Units and, therefore, are not offered by prospectus during the period of distribution, have a similar right of action for damages for misrepresentation in a prospectus against the ETF and its investment fund manager without regard to whether the purchaser relied on the misrepresentation and whether or not the purchaser in fact received a copy of the prospectus.

17. The Filer takes the view, in the circumstances, that it is not underwriter within the meaning of the Legislation. The Filer does not provide the same services in connection with a distribution of Creation Units as would typically be provided by an underwriter in a conventional underwriting. It is not involved in the preparation of an ETF's prospectus, does not incur any marketing costs or receive any underwriting fees or commissions from the ETFs or the ETF Managers in connection with the distribution of Creation Units. ETF Managers generally conduct their own marketing, advertising and promotion of the ETFs. The Filer generally seeks to profit from its ability to subscribe for and redeem ETF Securities by engaging in arbitrage trading to capture spreads between the trading prices of ETF Securities and their underlying securities.

18. In the circumstances, the Filer takes the view that a purchaser of ETF Securities will not be entitled to exercise a statutory right of action for rescission or damages against an Authorized Dealer or a Designated Broker in the event that the prospectus contains a misrepresentation.

Right of Withdrawal

19. Under the Legislation, if the Prospectus Delivery Requirement applies in respect of a sale of Creation Units, the purchaser of the Creation Units has a Right of Withdrawal.

20. It is not practicable for the Filer to provide purchasers of Creation Units on an exchange or another marketplace with a prospectus in accordance with the Prospectus Delivery Requirement as the Filer will often not know the identity of the purchaser and will generally not know whether the sale involves Creation Units.

21. The Right of Withdrawal will not be available to the purchaser of Creation Units in respect of a re-sale of Creation Units since the Filer will be exempt from the Prospectus Delivery Requirement. Under the ETF Relief, an ETF will state in its prospectus or amendment to its prospectus that the Right of Withdrawal will not be available in such circumstances. Under the ETF Relief, an ETF will state in its Summary Document that under the securities legislation of some Canadian jurisdictions an investor has the Trade Confirmation Right of Rescission and other rights and remedies if the Summary Document or prospectus contains a misrepresentation.

Prospectus Right of Rescission

22. Under the Legislation, if a dealer is subject to the Prospectus Delivery Requirement in respect of a sale of Creation Units, the purchaser of the Creation Units has the Prospectus Right of Rescission.

23. The Prospectus Right of Rescission will not be available to the purchaser of Creation Units in respect of a re-sale of Creation Units because the Prospectus Delivery Requirement will not apply. Under the ETF Relief, an ETF will state in its prospectus or amendment to its prospectus that the Prospectus Right of Rescission will not be available in such circumstances.

Trade Confirmation Right of Rescission

24. In applicable Canadian jurisdictions, purchasers of ETF Securities will continue to have the Trade Confirmation Right of Rescission as it is not affected by the grant of an exemption from the Prospectus Delivery Requirement.

Decision

Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.

The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted, provided that by the date a particular condition is first applicable to the Filer, and on an ongoing basis thereafter, the Filer will be in compliance with the following conditions:

1. Subject to the approval of the Ontario Securities Commission that would allow the Filer to conduct customer business, the Filer undertakes to its principal regulator that it will, unless the Filer has previously done so, send or deliver to each purchaser of an ETF Security who is a customer of the Filer, and to whom a trade confirmation is required under the Legislation to be sent or delivered by the Filer in connection with the purchase, the latest Summary Document filed in respect of the ETF Security not later than midnight on the second day, exclusive of Saturdays, Sundays and holidays, after the purchase of the ETF Security.

2. The Filer provides to each ETF Manager of an ETF for which it is an Authorized Dealer or Designated Broker, an executed acknowledgement to the effect that the Filer:

(a) acknowledges receipt of a copy of this decision;

(b) agrees to send or deliver the Summary Document in accordance with this decision;

(c) undertakes that the Filer will attach or bind one ETF's Summary Document with another ETF's Summary Document only if the documents are being sent or delivered under this decision at the same time to an investor purchasing ETF Securities of each such ETF; and

(d) confirms that the Filer has in place written policies and procedures to ensure that there is compliance with the conditions of this decision.

3. The Filer provides to each ETF Manager of each ETF in whose ETF Securities it is generally engaged in purchasing and selling in the secondary market on behalf of its customers, but for which it is not an Authorized Dealer or Designated Broker an executed acknowledgement to the effect that the Filer:

(a) acknowledges receipt of a copy of this decision;

(b) agrees to send or deliver the Summary Document in accordance with this decision;

(c) undertakes that the Filer will attach or bind one ETF's Summary Document with another ETF's Summary Document only if the documents are being sent or delivered under this decision at the same time to an investor purchasing ETF Securities of each such ETF; and

(d) confirms that the Filer has in place written policies and procedures to ensure that there is compliance with the conditions of this decision.

4. The Filer files with the principal regulator, to the attention of the Director, Investment Funds, on or before January 31st in each calendar year, a certificate signed by an ultimate designated person certifying that, to the best of the knowledge of such person after making due inquiry, the Filer has complied with the terms and conditions of this decision during the previous calendar year.

The Exemption Sought terminates on September 1st, 2015.

"Gilles Leclerc"
Superintendent, Securities Markets
Autorité des marchés financiers