Securities Law & Instruments


Headnote

Application to the Commission pursuant to section 38 of the Commodity Futures Act (Ontario) (CFA) for a ruling that the Applicant be exempted from the dealer registration requirement in paragraph 22(1)(a), the prohibition against trading on non-recognized exchanges in section 33 of the CFA, and from the dealer registration requirement in connection with acting as a clearing broker in Give-Up Transactions involving commodity futures contracts and options on commodity futures contracts on exchanges located in Canada to, from or on behalf of Canadian institutional permitted clients (institutional investors). The Applicant will offer the ability to trade in commodity futures contracts and commodity futures options that trade on exchanges located outside of Canada and cleared through clearing corporations located outside of Canada to certain of its clients in Ontario who meet the definition of "permitted client" in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations – relief subject to sunset clause.

Application to the Director for an exemption, pursuant to section 6.1 of OSC Rule 91-502 Trades in Recognized Options (Rule 91-502) exempting the Applicant and its Representatives from the proficiency requirements in section 3.1 of Rule 91-502 for trades in commodity futures options on exchanges located outside of Canada.

Statutes Cited

Commodity Futures Act, R.S.O. 1990, c. C.20. as am., ss. 22, 38.
Securities Act, R.S.O. 1990, c. S.5, as am.

Rule Cited

Ontario Securities Commission Rule 91-502 Trades in Recognized Options, ss. 3.1, 6.1.

Instrument Cited

National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, s. 8.18.

October 19, 2018

IN THE MATTER OF
THE COMMODITY FUTURES ACT,
R.S.O. 1990, c. C.20, AS AMENDED
(the CFA)

AND

IN THE MATTER OF
ONTARIO SECURITIES COMMISSION RULE 91-502
TRADES IN RECOGNISED OPTIONS
(Rule 91-502)

AND

IN THE MATTER OF
BofAML SECURITIES INC.
(the Filer)

RULING
(Section 38 of the CFA and Section 6.1 of Rule 91-502)

UPON the application (the Application) of the Filer to the Ontario Securities Commission (the Commission) for the following relief (the Relief Requested):

(a)           a ruling of the Ontario Securities Commission (the Commission), pursuant to section 38 of the CFA, that the Filer is not subject to the dealer registration requirement in section 22 of the CFA (the dealer registration requirement in the CFA) or the trading restrictions in section 33 of the CFA (the trading restrictions in the CFA) in connection with trades in commodity futures contracts or commodity futures options that trade on one or more organized exchanges located outside of Canada and that are cleared through one or more clearing corporations located outside of Canada (Non-Canadian Futures) where the Filer is acting as principal or agent in such trades to, from or on behalf of clients in Ontario who are “Permitted Clients” (Permitted Clients), as that term is defined in section 1.1 of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103);

(b)           a ruling of the Commission pursuant to section 38 of the CFA, that the Filer is not subject to the dealer registration requirement in the CFA in connection with providing Clearing Broker Services (defined below) in Give-Up Transactions (defined below) involving commodity futures contracts or commodity futures options that trade on one or more organized exchanges located in Canada and that are cleared through one or more clearing corporations located in Canada (Canadian Futures and, when referred to together with Non-Canadian Futures, Exchange-Traded Futures) to, from or on behalf of Institutional Permitted Clients (defined below);

(c)           a ruling of the Commission, pursuant to section 38 of the CFA, that Permitted Clients and Institutional Permitted Clients, as applicable, are not subject to the dealer registration requirements in the CFA or the trading restrictions in the CFA, as applicable, in connection with trades in Non-Canadian Futures and in connection with receiving Clearing Broker Services in Give-Up Transactions in Canadian Futures pursuant to the Relief Requested; and

(d)           a decision of the Director, pursuant to section 6.1 of Rule 91-502, exempting the Filer and its salespersons, directors, officers and employees (the Representatives) from section 3.1 of Rule 91-502 in connection with trades in Exchange-Traded Futures.

AND WHEREAS for the purposes of the Relief Requested Institutional Permitted Client shall mean a Permitted Client except for:

(a)           an individual,

(b)           a person or company acting on behalf of a managed account of an individual,

(c)           a person or company referred to in paragraph (p) of that definition, unless the person or company qualifies as an Institutional Permitted Client under another paragraph of that definition, or

(d)           a person or company referred to in paragraph (q) of that definition unless that person or company has net assets of at least $100 million as shown on its most recently prepared financial statements or qualifies as an Institutional Permitted Client under another paragraph of that definition;

and provided further that, for the purposes of the definition of “Permitted Client” and “Institutional Permitted Client”, a reference in the definition of “permitted client” in section 1.1 of NI 31-103 to “securities legislation” shall be read as “securities legislation or Ontario commodity futures law, as applicable”.

AND UPON considering the Application and the recommendation of Staff of the Commission;

AND UPON the Filer having represented to the Commission as follows:

1.             The Filer is a corporation formed under the laws of the State of Delaware. The Filer’s head offices are located at One Bryant Park, New York, New York, 10036, United States of America (U.S.). The Filer is an indirect wholly-owned subsidiary of Bank of America Corporation, held through its direct and indirect wholly-owned subsidiaries NB Holdings Corporation, BAC North America Holding Company, and Merrill Lynch, Pierce, Fenner & Smith Incorporated, respectively.

2.             The Filer is registered as a broker-dealer with the U.S. Securities and Exchange Commission (“SEC”), a member of the U.S. Financial Industry Regulatory Authority (“FINRA”), a registered futures commission merchant (“FCM”) with the U.S. Commodity Futures Trading Commission (“CFTC”), and a member of the U.S. National Futures Association (“NFA”).

3.             The Filer is in the process of establishing memberships with a number of major U.S. securities and equity options exchanges, including the New York Stock Exchange, NASDAQ Stock Market, Chicago Board Options Exchange, Miami International Securities Exchange, International Securities Exchange and the BOX Options Exchange. The Filer is also in the process of establishing memberships with many major U.S. commodity exchanges, including the Chicago Mercantile Exchange, Chicago Board of Trade, New York Mercantile Exchange, Commodity Exchange, Inc., CBOE Futures Exchange, Eris Exchange, ICE Futures U.S. and Nodal Exchange, and trades through affiliated or unaffiliated member firms on other exchanges, including exchanges in Canada.

4.             In connection with its securities trading activities, the Filer relies or will rely on the “international dealer exemption” under section 8.18 of NI 31-103 in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Ontario, Prince Edward Island, Québec and Saskatchewan.

5.             The Filer is not in default of securities legislation in any jurisdiction in Canada or under the CFA. The Filer is in compliance in all material respects with U.S. securities and commodity futures laws.

6.             Merrill Lynch Canada Inc. (MLCI), an affiliate of the Filer, is a corporation organized under the laws of Canada and has its head office in Toronto, Ontario. MLCI is registered: (a) as an investment dealer under the securities legislation in each of the jurisdictions of Canada; (b) as a derivatives dealer in Quebec; and (c) as a FCM in Ontario and is a member of the Investment Industry Regulatory Organization of Canada (IIROC).

7.             The Filer seeks the Relief Requested in order to trade in Non-Canadian Futures for Permitted Clients located in Ontario, and to provide Clearing Broker Services in the context of Give-Up Transactions with respect to Canadian Futures for Institutional Permitted Clients located in Ontario.

8.             Permitted Clients of the Filer will be able to execute Non-Canadian Futures orders through the Filer by contacting the Filer's global execution desk or by submitting orders electronically via the Filer's proprietary electronic order routing system. Permitted Clients may also be able to self-execute Non-Canadian Futures orders electronically via an independent service vendor and/or other electronic trading routing. The Filer may execute an order in accordance with the rules and customary practices of the exchange, or engage another broker to assist in the execution of orders. The Filer will remain responsible for all executions when the Filer is listed as the executing broker of record.

9.             Permitted Clients may also execute Exchange-Traded Futures orders through third party brokers and then "give up" the transaction for clearance. In this scenario, the Filer may act as the executing broker for Non-Canadian Futures, or the Filer may act as the clearing broker for Exchange-Traded Futures that are “given up” to the Filer.

10.          A Give-Up Transaction is a purchase or sale of futures contracts by a client that has an existing relationship with a clearing broker, but wishes to use the trade execution services of one or more other executing brokers for the purpose of executing such purchases or sales (Subject Transactions) on one or more markets. Under these circumstances, the executing broker executes the Subject Transactions as directed by the client and “gives up” such trades to a clearing broker for clearing, settlement, record-keeping, bookkeeping, custody and other administrative functions (Clearing Broker Services). The service provided by the executing broker is limited to trade execution only.

11.          In a Give-Up Transaction, the clearing broker will maintain an account for the client that is administered in accordance with the terms and conditions of the account documentation of the clearing broker that has been signed by the client. The clearing broker will handle record keeping and collateral for the client. The client will not sign clearing account documentation with the executing broker, nor will the executing broker typically receive monies, margin or collateral directly from the client. Although the executing broker is responsible for its own record-keeping, bookkeeping, custody and other administrative functions (Account Services) in respect of its own clients, it does not, subject to any applicable regulatory requirements that may otherwise apply, provide Account Services for execution-only clients. Such Account Services remain the responsibility of the clearing broker. The clearing broker has the primary relationship with the client and is contractually responsible for trade and risk monitoring, as well as reporting trade confirmations and sending out monthly statements.

12.          In order to enter into a Give-Up Transaction, an executing broker, a clearing broker, and the client enter into a tri-party agreement, known as a “give-up agreement” (Give-Up Agreement). The International Uniform Brokerage Execution Services (Give-Up) Agreement: Version 2008 (© Futures Industry Association, 2008), as may be revised from time to time, is generally used.

13.          In Ontario, clients place orders for Canadian Futures for execution on Canadian futures exchanges with Ontario-registered FCMs, which trades are then cleared locally on the applicable Canadian futures exchange by the applicable Ontario-registered FCM (if qualified to do so) or another clearing member of the applicable Canadian futures exchange. Where the Filer is providing the Clearing Broker Services, the executed trades are placed into a client omnibus account maintained by the Filer with the clearing member of the applicable Canadian futures exchange that locally clears the trades, and the executed trades are booked by the Filer to the futures account of the Ontario client maintained with the Filer for trading on exchanges globally. In this arrangement, the Ontario-registered FCM is responsible for all client-facing interactions relating to the execution of the Canadian Futures.

14.          For example, in the case of a Montréal Exchange-listed futures contract, a member of the Canadian Derivatives Clearing Corporation (CDCC) clears the trade on the Filer’s behalf. Therefore, trade execution is performed by an Ontario-registered FCM, the positions are held at CDCC by a CDCC member (which could be, but does not necessarily have to be, the executing broker) and given up to the Filer, with which the Ontario client maintains a clearing account. The Filer then carries the resulting positions in an account maintained on its books by the client, and the Filer calls for and collects applicable margin from the client. The Filer, in turn, remits the required margin to the CDCC member that cleared the trade. The CDCC member then makes the required margin payment(s) to CDCC.

15.          If the Filer performs only the execution of a Non-Canadian Futures order and the transaction is "given-up" for clearance to a third party clearing broker, such clearing broker will be required to comply with the rules of the exchanges of which it is a member and any relevant regulatory requirements, including requirements under the CFA as applicable. The Filer will not enter into a Give-Up Agreement with any clearing broker located in the United States unless such clearing broker is registered with the CFTC.

16.          Each party to a Give-Up Agreement will represent in the Give-Up Agreement that it will perform its obligations under the Give-Up Agreement in accordance with applicable laws, governmental, regulatory, self-regulatory, exchange or clearing house rules, regulations, interpretations, protocols and the customs and usages of the exchange or clearing house on which the transactions governed by the Give-Up Agreement are executed and cleared, as in force from time to time.

17.          The Filer will execute and clear trades on behalf of clients in Ontario in the same manner that it executes and clears trades on behalf of its U.S. clients, all of which are "Eligible Contract Participants", as defined in the U.S. Commodity Exchange Act (CEA). The Filer will follow the same know-your-customer and segregation of assets procedures that it follows in respect of its U.S. clients. Clients in Ontario will be afforded the benefits of compliance by the Filer with the requirements of the CEA and the regulations thereunder, and the Securities Exchange Act of 1934 (the 1934 Act) and the regulations thereunder. Clients in Ontario will have the same contractual rights against the Filer as U.S. clients of the Filer.

18.          In respect of holding client assets, in order to protect customers in the event of the insolvency or financial instability of the Filer, the Filer is required under U.S. law to ensure that customer securities and monies be separately accounted for, segregated at all times from the securities and monies of the Filer and custodied exclusively with such banks, trust companies, clearing organizations or other licensed futures brokers and intermediaries as may be approved for such purposes under the U.S. Commodity Exchange Act (CEA) and the rules promulgated by the CFTC thereunder (collectively, the Approved Depositories). The Filer is further required to obtain acknowledgements from any Approved Depository holding customer funds or securities related to U.S.-based transactions or accounts that such funds and securities are to be separately held on behalf of such customers, with no right of set-off against the Filer’s obligations or debts.

19.          As a U.S. registered broker-dealer and FCM, the Filer is subject to regulatory capital requirements under the CEA and the 1934 Act, specifically CFTC Regulation 1.17 Minimum Financial Requirements for Futures Commission Merchants and Introducing Brokers (CFTC Regulation 1.17), SEC Rule 15c3-1 Net Capital Requirements for Brokers or Dealers (SEC Rule 15c3-1) and SEC Rule 17a-5 Reports to be Made by Certain Brokers and Dealers (SEC Rule 17a-5).

20.          SEC Rule 15c3-1 requires that the Filer account for any guarantee of debt of a third party in calculating its excess net capital when a loss is probable and the amount can be reasonably estimated. Accordingly, the Filer will, in the event that it provides a guarantee of any debt of a third party, take a deduction from net capital when both of the preceding conditions exist.

21.          SEC Rule 15c3-1 and CFTC Regulation 1.17 are designed to provide protections that are substantially similar to the protections provided by the capital formula requirements and specifically risk adjusted capital to which dealer members of IIROC are subject. The Filer is in compliance with SEC Rule 15c3-1 and in compliance in all material respects with SEC Rule 17a-5. If the Filer’s net capital declines below the minimum amount required, the Filer is required to notify the SEC and FINRA pursuant to SEC Rule 17a-11 Notification Provisions for Brokers and Dealers (SEC Rule 17a-11). The SEC and FINRA have the responsibility to provide oversight over the Filer’s compliance with SEC Rule 15c3-1 and SEC Rule 17a-5.

22.          The Filer is required to prepare and file a financial report, which includes Form X-17a-5 Financial and Operational Combined Uniform Single Report (the FOCUS Report), monthly with the CFTC, NFA, SEC and FINRA. The FOCUS Report provides a more comprehensive description of the business activities of the Filer, and more accurately reflects those activities including client lending activity, than would be provided by Form 31-103F1 Calculation of Excess Working Capital (Form 31-103F1). The FOCUS Report provides a net capital calculation and a comprehensive description of the business activities of the Filer. The net capital requirements computed using methods prescribed by SEC Rule 15c3-1 are based on all assets and liabilities on the books and records of a broker-dealer whereas Form 31-103F1 is a calculation of excess working capital, which is a computation based primarily on the current assets and current liabilities on the books and records of the dealer. The Filer is up-to-date in its submission of annual reports under SEC Rule 17a-5(d), including the FOCUS Report.

23.          The Filer is a member of the Securities Investors Protection Corporation (SIPC). Subject to the eligibility criteria of SIPC, client assets held by the Filer in connection with its activities as a broker-dealer are insured by SIPC against loss due to insolvency in accordance with the Securities Investor Protection Act of 1970. There is no SIPC or similar insurance protection in connection with activities undertaken as a U.S. registered FCM.

24.          The Filer is subject to CFTC Regulation 30.7 regarding cash, securities and other collateral that are deposited with a FCM or are otherwise required to be held for the benefit of its customers to margin futures and options on futures contracts traded on non-U.S. boards of trade, including Canadian Futures (30.7 Customer Funds). Accounts used to hold 30.7 Customer Funds must be properly titled to make clear that the funds belong to, and are being held for the benefit of, the FCM’s customers who are trading foreign (i.e. non-U.S.) futures and futures options.

25.          30.7 Customer Funds may not be commingled with the funds of any other person, including the carrying FCM, except that the carrying FCM may deposit its own funds into the account containing 30.7 Customer Funds in order to prevent the accounts of the customers from becoming under-margined. Each Approved Depository (except for a derivatives clearing organization with specified rules) is required to provide the depositing FCM with a written acknowledgment that the depository was informed that such funds held in the customer account belong to customers and are being held in accordance with the CEA and CFTC Regulations. Among other representations, the depository must acknowledge that it cannot use any portion of 30.7 Customer Funds to satisfy any obligations that the FCM may owe the depository. The types of investments permitted for 30.7 Funds are restricted by CFTC Regulation 30.7(h), which refers to the list of permitted investments set forth in CFTC Regulation 1.25. The FCM is required, on a daily basis, to compute and submit to regulatory authorities a statement of the amounts of 30.7 Customer Funds held by the FCM.

26.          In the event of a FCM’s bankruptcy, funds allocated to each account class (i.e., the customer segregated, 30.7 secured amount and cleared swaps customer account classes established pursuant to CFTC Regulations 1.20, 30.7 and 22.2, respectively) or readily traceable to an account class must be allocated solely to that customer account class. The U.S. Bankruptcy Code also provides that non-defaulting customers in an account class that has incurred a loss will share in any shortfall, pro rata. However, customers whose funds are held in another account class that has not incurred a loss will not be required to share in such shortfall.

27.          The Filer holds customer assets in accordance with Rule 15c3-3 of the 1934 Act, as amended (SEC Rule 15c3-3). SEC Rule 15c3-3 requires the Filer to segregate and keep segregated all “fully-paid securities” and “excess margin securities” (as such terms are defined in SEC Rule 15c3-3) of its customers from its proprietary assets. In addition to the segregation of customers’ securities, SEC Rule 15c3-3 requires the Filer to deposit an amount of cash or qualified government securities determined in accordance with a reserve formula set forth in SEC Rule 15c3-3 in an account entitled “Special Reserve Account for the Exclusive Benefit of Customers” of such Filer at separate banks and/or custodians. The combination of segregated securities and cash reserve are designed to ensure that the Filer has sufficient assets to cover all net equity claims of its customers and provide protections that are substantially similar to the protections provided by the requirements dealer members of IIROC are subject. If the Filer fails to make an appropriate deposit, the Filer is required to notify the SEC and FINRA pursuant to SEC Rule 15c3-3(i). The Filer is in material compliance with the possession and control requirements of SEC Rule 15c3-3.

28.          The Filer is subject to regulations of the Board of Governors of the U.S.A. Federal Reserve Board (FRB), the SEC, and FINRA regarding the lending of money, extension of credit and provision of margin to clients (the U.S. Margin Regulations) that provide protections that are substantially similar to the protections provided by the requirements regarding the lending of money, extension of credit and provision of margin to clients to which dealer members of IIROC are subject. In particular, the Filer is subject to the margin requirements imposed by the FRB, including Regulation T, and under applicable SEC rules and under FINRA Rule 4210. The Filer is in material compliance with all applicable U.S. Margin Regulations.

29.          Section 22 of the CFA provides that no person may trade in a commodity futures contract or a commodity futures option unless the person is registered as a dealer [Futures Commission Merchant], or as a representative of the dealer, or an exemption from the registration requirement is available. The Filer’s activities in providing Clearing Broker Services in Give-Up Transactions involving Canadian Futures to, from or on behalf of Institutional Permitted Clients may constitute trading in Canadian Futures.

30.          Section 33 of the CFA prohibits a person or company from trading in Exchange-Traded Futures unless the person or company satisfies the applicable provisions of section 33 of the CFA.

31.          Section 3.1 of Rule 91-502 prohibits a person from trading as agent in, or giving advice in respect of, a recognized option (as that term is defined in section 1.1 of Rule 91-502) unless the person has successfully completed the Canadian Options Course (which has been replaced by the Derivatives Fundamentals Course and the Options Licensing Course).

32.          The Filer’s activities in providing execution services in Non-Canadian Futures to, from or on behalf of Permitted Clients constitute trading activity by Permitted Clients. The Filer’s activities in providing Clearing Broker Services in Give-Up Transactions involving Canadian Futures to, from or on behalf of Institutional Permitted Clients may also constitute trading in Canadian Futures by Institutional Permitted Clients. Permitted Clients and Institutional Permitted Clients may be unable to rely on the exemptions from the dealer registration requirement in the CFA because the Filer is not a registered dealer. Accordingly, the Filer is also seeking exemptive relief pursuant to the Ruling for Permitted Clients and Institutional Permitted Clients that receive execution services and Clearing Broker Services from the Filer.

33.          The Filer believes that it would be beneficial to Permitted Clients/Institutional Permitted Clients in Ontario that trade in the international futures markets for the Filer to act as a clearing broker for Exchange-Traded Futures for the Permitted Client/Institutional Permitted Client because such an arrangement would enable the Permitted Client/Institutional Permitted Client to benefit from significant efficiencies in collateral usage and consolidated reporting. Benefits would include single margin calls/payments, single wire transfer, ease of reconciliation, netting and cross product margining.

34.          Clients may seek clearing services from the Filer in order to separate the execution of a trade from the clearing and settlement of a trade. This allows clients to use many executing brokers, without maintaining an active, ongoing clearing account with each executing broker. It also allows the client to consolidate the clearing and settlement of Exchange-Traded Futures in an account with the Filer.

35.          The Filer does not dictate to its clients the executing brokers through which clients may execute trades. Clients are free to directly select their executing broker. Clients send orders to the executing broker who carries out the trade. The executing broker will be an appropriately registered dealer or a person or company relying on an exemption from dealer registration that permits it to execute the trade for clients.

36.          The Filer is a “market participant” as defined under subsection 1(1) of the CFA. As a market participant, among other requirements, the Filer is required to comply with the record keeping and provision of information provisions under section 14 of the CFA, which include the requirement to keep such books, records and other documents (a) as are necessary for the proper recording of business transactions and financial affairs, and the transactions executed on behalf of others, (b) as may otherwise be required under Ontario commodity futures law, and (c) as may reasonably be required to demonstrate compliance with Ontario commodity futures laws, and to deliver such records to the Commission if required.

AND UPON the Commission being satisfied that it would not be prejudicial to the public interest to do so;

IT IS RULED, pursuant to section 38 of the CFA, that the Relief Requested is granted so long as the Filer:

(a)           has its head office or principal place of business in the U.S.;

(b)           is registered as a FCM with the CFTC and will be engaging in the business of an FCM in the U.S., and is registered as a broker-dealer under the securities legislation of the U.S. and will be engaging in the business of a broker-dealer in the U.S.;

(c)           is a member firm of the NFA and FINRA;

(d)           is a member of SIPC;

(e)           is subject to requirements over regulatory capital, lending of money, extension of credit and provision of margin, financial reporting to the SEC and FINRA, and/or the CFTC and NFA, and segregation and custody of assets which provide protections that are substantially similar to the protections provided by the rules to which dealer members of IIROC are subject;

(f)            limits its provision of execution services involving Non-Canadian Futures to Permitted Clients in Ontario;

(g)           limits its provision of Clearing Broker Services in respect of Give-Up Transactions involving Canadian Futures to Institutional Permitted Clients in Ontario;

(h)           does not execute trades in Canadian Futures with or for Institutional Permitted Clients in Ontario, except as permitted under applicable Ontario securities or commodities futures laws;

(i)            does not require its clients to use specific executing brokers through which clients may execute trades;

(j)            notifies the OSC of any regulatory action initiated after the date of this decision in respect of the Filer, or any predecessors or specified affiliates of the Filer, by completing and filing with the OSC Appendix "B" hereto within ten days of the commencement of any such action; provided that the Filer may also satisfy this condition by filing with the OSC within ten days of the date of this decision a notice making reference to and incorporating by reference the disclosure made by the Filer pursuant to U.S. federal securities laws that is identified in the FINRA BrokerCheck system, and any updates to such disclosure that may be made from time to time, and by providing notification, in a manner reasonably acceptable to the Director, of any filing of a Form BD 'Regulatory Action Disclosure Reporting Page;

(k)           submits the financial report and compliance report as described in SEC Rule 17a-5(d) to the OSC on an annual basis, at the same time such reports are filed with the SEC and FINRA;

(l)            submits audited financial statements to the OSC on an annual basis, within 90 days of the Filer’s financial year end;

(m)          submits to the OSC immediately a copy of any notice filed under SEC Rule 17a-11 or under SEC Rule 15c3-3(i) with the SEC and FINRA;

(n)           complies with the filing and fee payment requirements applicable to a registrant under OSC Rule 13-502 Fees; provided that, if the Filer does not rely on the international dealer exemption in section 8.18 of NI 31-103 (the IDE), by December 31st of each year, the Filer pays a participation fee based on its specified Ontario revenues for its previous financial year in compliance with the requirements of Part 3 and section 6.4 of OSC Rule 13-502 Fees as if the Filer relied on the IDE;

(o)           files in an electronic and searchable format with the OSC such reports as to any or all of its trading activities in Canada as the OSC may, upon notice, require from time to time;

(p)           pays the increased compliance and case assessment costs of the OSC due to the Filer’s location outside Ontario, including, as required, the reasonable cost of hiring a third party to perform a compliance review on behalf of the OSC;

(q)           has provided to each Institutional Permitted Client the following disclosure in writing:

(i)            a statement that the Filer is not registered in Ontario to trade in Canadian Futures as principal or agent;

(ii)           a statement that the Filer’s head office or principal place of business is located in New York, New York, U.S.;

(iii)           a statement that all or substantially all of the Filer’s assets may be situated outside of Canada;

(iv)          a statement that there may be difficulty enforcing legal rights against the Filer because of the above; and

(v)           the name and address of the Filer’s agent for service of process in Ontario; and

(r)            has submitted to the Commission a completed Submission to Jurisdiction and Appointment of Agent for Service in the form attached as Appendix “A” hereto.

AND IT IS FURTHER RULED, pursuant to section 38 of the CFA, that a Permitted Client and Institutional Permitted Client, as applicable, is not subject to the dealer registration requirement in the CFA in connection with trades in Exchange-Traded Futures where the Filer acts in connection with trades in Exchange-Traded Futures on behalf of the Permitted Client and Institutional Permitted Client, as applicable, from the Filer pursuant to the above ruling.

This Decision will terminate on the earliest of:

(i)            the expiry of any transition period as may be provided by law, after the effective date of the repeal of the CFA;

(ii)           six months, or such other transition period as may be provided by law, after the coming into force of any amendment to Ontario commodity futures law (as defined in the CFA) or Ontario securities law (as defined in the OSA) that affects the dealer registration requirements in the CFA or the trading restrictions in the CFA; and

(iii)           five years after the date of this Decision.


“Grant Vingoe”
Vice-Chair
Ontario Securities Commission 
“Tim Moseley”
Vice-Chair
Ontario Securities Commission 


IT IS THE DECISION of the Director, pursuant to section 6.1 of Rule 91-502, that section 3.1 of Rule 91-502 does not apply to the Applicant and its Representatives in respect of Futures Trades, provided that:

 

(a)           the Applicant and its Representatives maintain their respective registrations with the CFTC and NFA which permit them to trade in commodity futures options in the United States; and

(b)           this Decision will terminate on the earliest of:

(i)            the expiry of any transition period as may be provided by law, after the effective date of the repeal of the CFA;

(ii)           six months, or such other transition period as may be provided by law, after the coming into force of any amendment to Ontario commodity futures law (as defined in the CFA) or Ontario securities law (as defined in the OSA) that affects the dealer registration requirements in the CFA or the trading restrictions in the CFA; and

(ii)           five years after the date of this Decision.

“Elizabeth King”
Deputy Director
Ontario Securities Commission


 

APPENDIX “A”

SUBMISSION TO JURISDICTION AND APPOINTMENT OF AGENT FOR SERVICE

INTERNATIONAL DEALER OR INTERNATIONAL ADVISER EXEMPTED FROM REGISTRATION UNDER THE COMMODITY FUTURES ACT, ONTARIO

1.             Name of person or company ("International Firm"):

2.             If the International Firm was previously assigned an NRD number as a registered firm or an unregistered exempt international firm, provide the NRD number of the firm:

3.             Jurisdiction of incorporation of the International Firm:

4.             Head office address of the International Firm:

5.             The name, e-mail address, phone number and fax number of the International Firm's individual(s) responsible for the supervisory procedure of the International Firm, its chief compliance officer, or equivalent.

Name:

E-mail address:

Phone:

Fax:

6.             The International Firm is relying on an exemption order under section 38 or section 80 of the Commodity Futures Act (Ontario) that is similar to the following exemption in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (the "Relief Order"):

  [ ] Section 8.18 [international dealer]

  [ ] Section 8.26 [international adviser]

  [ ]  Other [specify]

7.             Name of agent for service of process (the "Agent for Service"):

8.             Address for service of process on the Agent for Service:

9.             The International Firm designates and appoints the Agent for Service at the address stated above as its agent upon whom may be served a notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal or other proceeding (a "Proceeding") arising out of or relating to or concerning the International Firm's activities in the local jurisdiction and irrevocably waives any right to raise as a defence in any such proceeding any alleged lack of jurisdiction to bring such Proceeding.

10.          The International Firm irrevocably and unconditionally submits to the non-exclusive jurisdiction of the judicial, quasi-judicial and administrative tribunals of the local jurisdiction in any Proceeding arising out of or related to or concerning the International Firm's activities in the local jurisdiction.

11.          Until 6 years after the International Firm ceases to rely on the Relief Order, the International Firm must submit to the regulator

a.             a new Submission to Jurisdiction and Appointment of Agent for Service in this form no later than the 30th day before the date this Submission to Jurisdiction and Appointment of Agent for Service is terminated;

b.             an amended Submission to Jurisdiction and Appointment of Agent for Service no later than the 30th day before any change in the name or above address of the Agent for Service;

c.             a notice detailing a change to any information submitted in this form, other than the name or above address of the Agent for Service, no later than the 30th day after the change.

12.          This Submission to Jurisdiction and Appointment of Agent for Service is governed by and construed in accordance with the laws of the local jurisdiction.

Dated: _______________

__________________________________________________
(Signature of the International Firm or authorized signatory)

__________________________________________________
(Name of signatory)

__________________________________________________
(Title of signatory)


Acceptance

The undersigned accepts the appointment as Agent for Service of _______________ [Insert name of International Firm] under the terms and conditions of the foregoing Submission to Jurisdiction and Appointment of Agent for Service.

Dated: ____________________

__________________________________________________
(Signature of the Agent for Service or authorized signatory)

__________________________________________________
(Name of signatory)

__________________________________________________
(Title of signatory)

This form, and notice of a change to any information submitted in this form, is to be submitted through the Ontario Securities Commission’s Electronic Filing Portal:

https://www.osc.gov.on.ca/filings

 

APPENDIX “B”

NOTICE OF REGULATORY ACTION

 

1.             Has the firm, or any predecessors or specified affiliates1 of the firm entered into a settlement agreement with any financial services regulator, securities or derivatives exchange, SRO or similar agreement with any financial services regulator, securities or derivatives exchange, SRO or similar organization?

Yes _____ No _____

If yes, provide the following information for each settlement agreement:

Name of entity

Regulator/organization

Date of settlement (yyyy/mm/dd)

Details of settlement

Jurisdiction

2.             Has any financial services regulator, securities or derivatives exchange, SRO or similar organization:

 

Yes

No

(a)           Determined that the firm, or any predecessors or specified affiliates of the firm violated any securities regulations or any rules of a securities or derivatives exchange, SRO or similar organization?

___

___

(b)           Determined that the firm, or any predecessors or specified affiliates of the firm made a false statement or omission?

___

___

(c)           Issued a warning or requested an undertaking by the firm, or any predecessors or specified affiliates of the firm?

___

___

(d)           Suspended or terminated any registration, licensing or membership of the firm, or any predecessors or specified affiliates of the firm?

___

___

(e)           Imposed terms or conditions on any registration or membership of the firm, or predecessors or specified affiliates of the firm?

___

___

(f)            Conducted a proceeding or investigation involving the firm, or any predecessors or specified affiliates of the firm?

___

___

(g)           Issued an order (other than an exemption order) or a sanction to the firm, or any predecessors or specified affiliates of the firm for securities or derivatives-related activity (e.g. cease trade order)?

___

___

If yes, provide the following information for each action:

Name of entity

Type of action

Regulator/organization

Date of action (yyyy/mm/dd)

Reason for action

Jurisdiction

3.             Is the firm aware of any ongoing investigation of which the firm or any of its specified affiliates is the subject?

Yes _____ No _____

If yes, provide the following information for each investigation:

Name of entity

Reason or purpose of investigation

Regulator/organization

Date investigation commenced (yyyy/mm/dd)

Jurisdiction

 

Name of firm:

Name of firm’s authorized signing officer or partner

Title of firm’s authorized signing officer or partner

Signature

Date (yyyy/mm/dd)

Witness

The witness must be a lawyer, notary public or commissioner of oaths.

Name of witness

Title of witness

Signature

Date (yyyy/mm/dd)

This form is to be submitted through the Ontario Securities Commission’s Electronic Filing Portal:

https://www.osc.gov.on.ca/filings


 

1       In this Appendix, the term "specified affiliate" has the meaning ascribed to that term in Form 33-109F6 to National Instrument 33-109 Registration Information.