Application by three Ontario not-for-profit entities that have initiated and organized the establishment of a joint advisory board under Ontario municipal legislation to provide certain advisory services to Ontario municipalities on a not-for-profit, cost-recovery basis – Filers have developed the joint investment board in response to a Government of Ontario initiative to make possible enhanced investment returns and efficiencies for municipalities – objective of the initiative is to make high-quality investment management available to Ontario municipalities, particularly smaller municipalities, that do not have in-house expertise or financial resources to obtain such advisory services on their own, thereby availing such municipalities with an opportunity to increase their risk-adjusted investment returns on terms comparable to larger municipalities – the joint investment board will be established and will operate under the requirements of Ontario municipal legislation – municipal legislation sets out a detailed legislative and regulatory framework for providing governance, transparency and oversight regarding investment activities of municipalities and other Eligible Investors – Filers are subject to, and will comply with, the rules, regulations, policies and directives of authorities required by such regulatory framework – Other than investing in the Investment Pools on behalf of Eligible Investors, the Filers will not engage in discretionary portfolio management – day-to-day portfolio management and advisory services supplied to the Investment Pools or otherwise to Eligible Investors will be provided by portfolio managers registered or exempt from registration – Eligible Investors will in all cases be accredited investors – Filers will not provide investment management or advisory services to any persons or companies other than the Eligible Investors and the Investment Pools – certain of the Filers’ activities may be considered registerable activities under Ontario securities and commodity futures law – Filers granted the following relief:
· relief under the Securities Act (Ontario) (the OSA) from the dealer, adviser and investment fund manager registration requirements in section 25 of the OSA;
· relief from the adviser registration requirements in section 22 of the Commodity Futures Act (Ontario) (the CFA); and
· relief from the financial statement requirements in Part 2 of NI 81-106 Investment Fund Continuous Disclosure (NI 81-106).
Applicable Legislative Provisions
Commodity Futures Act, R.S.O. 1990, c. C.20, ss. 22(1), 80.
Securities Act, R.S.O. 1990, c. S.5, ss. 1(1), 25(1), 25(3), 25(4) and 74(1).
National Instrument 81-106 Investment Fund Continues Disclosure, ss. 1.1, 17.1, and Part 2.
Municipal Act, 2001, S.O. 2001, c. 25.
Ontario Regulation 438/97 Eligible Investments, Related Financial Agreements and Prudent Investment, made under the Municipal Act.
Municipal Conflict of Interest Act, R.S.O. 1990, C. M.50.
Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.
November 23, 2018
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, C. S.5, AS AMENDED
IN THE MATTER OF
THE COMMODITY FUTURES ACT,
R.S.O. 1990, c. C.20, AS AMENDED (the CFA)
LOCAL AUTHORITY SERVICES (LAS),
CHUMS FINANCING CORPORATION (CHUMS), and
ONE INVESTMENT and ONE JOINT INVESTMENT BOARD (ONE JIB)
COMMISSION AND DIRECTOR DECISIONS
The Ontario Securities Commission (the OSC or Commission) has received an application from the Filers for decisions under the OSA and CFA providing for the following exemptions (collectively, the Commission Exemptions Sought):
A. rulings under subsection 74(1) of the OSA (the OSA Exemptions Sought):
(a) exempting each Investment Pool, and the Filers acting on behalf of the Investment Pool, from the OSA dealer registration requirement in connection with trades in any Units of the Investment Pool to any Eligible Investor;
(b) exempting ONE Investment from the OSA investment fund manager registration requirement in connection with ONE Investment acting as an investment fund manager for any Investment Pool that is an investment fund in respect of which the only holders of securities issued by the Investment Pool are Eligible Investors;
(c) exempting ONE JIB and ONE Investment from the OSA adviser registration requirement in connection with ONE JIB or ONE Investment providing Investment Advisory Services in respect of securities to any Eligible Investor or any Investment Pool;
(d) exempting ONE Investment and ONE JIB from the OSA dealer registration requirement in connection with trades in securities (other than Units of the Investment Pools) made under the ONE Investment Offering to any Eligible Investor; and
B. an order, under section 80 of the CFA (the CFA Exemption Sought), exempting ONE JIB and ONE Investment from the CFA adviser registration requirement in connection with ONE JIB and ONE Investment providing Investment Advisory Services in respect of commodity futures contracts or commodity futures options to any Eligible Investor or any Investment Pool.
The OSC has also received an application from ONE Investment for an order under section 17.1 of National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106, and together with the OSA and the CFA, the Legislation), exempting the Investment Pools from the financial statement requirements in Part 2 of NI 81-106 that apply to “mutual funds in Ontario” (the Director Exemption Sought).
In this decision, the following terms shall have the following meanings unless context otherwise requires and terms defined in National Instrument 14-101 – Definitions have the meanings ascribed therein:
i. accredited investor has the same meaning as in section 73.3 of the OSA and section 1.1 of NI 45-106;
ii. CFA adviser registration requirement means the requirement in subsection 22(1) of the CFA that prohibits a person or company from engaging in the business of advising others as to trading in a commodity futures contract or commodity futures option unless that person or company is registered in the appropriate category of registration under the CFA;
iii. Eligible Investor means (i) a municipality in Ontario which is subject to the Municipal Legislation; (ii) a public board or commission in Ontario or a metropolitan community, school board, or any agency of a municipality in Ontario or any of the foregoing (as found in the definition of accredited investor); or (iii) an entity specified in section 420 of the Municipal Act (including an entity prescribed by regulation); provided such entity as described in clauses (i), (ii) or (iii) is an accredited investor;
iv. Founding Municipalities means the Ontario municipalities who established ONE JIB as a Joint Investment Board in accordance with the requirements of paragraph 2 of section 15 of the Municipal Investment Regulation;
v. Investment Advisory Services means, in the case of an Eligible Investor or Investment Pool, investment management and advisory services that include advising the Eligible Investor or Investment Pool as to the investing in or buying or selling of securities, or advising the Eligible Investor or Investment Pool as to trading in commodity futures contracts or commodity futures options;
vi. Investment Pools means pooled investment vehicles or similar arrangements managed by ONE Investment for the benefit of Eligible Investors and Investment Pool means any one of them;
vii. Investment Pool Document means the articles, declaration of trust, limited partnership agreement or other constating or governing document in respect of an Investment Pool;
viii. Management Interests has the meaning given to this term in paragraph 39, below;
ix. Municipal Act means the Municipal Act, 2001, S.O. 2001, c. 25;
x. Municipal Fiduciary Standard has the meaning given to it in paragraph 22 below;
xi. Municipal Investment Regulation means Ontario Regulation 438/97 Eligible Investments, Related Financial Agreements and Prudent Investment, made under the Municipal Act;
xii. Municipal Legislation means all applicable legislation that applies to ONE JIB including, without limitation, the Municipal Act, the Municipal Conflict of Interest Act, R.S.O. 1990, C. M.50, the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, C. M.56, the Municipal Investment Regulation and any other applicable regulations made under such Acts;
xiii. NI 31-103 means National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations;
xiv. NI 45-106 means National Instrument 45-106 Prospectus Exemptions;
xv. NI 81-102 means National Instrument 81-102 Investment Funds;
xvi. ONE Investment Offering means advice related to municipal finance and infrastructure asset management, and the suite of cash management and investment products and services, including but not limited to securities of the Investment Pools, offered or to be offered by CHUMS, LAS and ONE Investment to Eligible Investors;
xvii. ONE Investment Subsidiary means a person or company of which all of the securities or other interests issued by the person or company are beneficially owned by ONE Investment;
xviii. ONE JIB means the ONE Joint Investment Board and for purposes of this decision includes the individuals who from time to time are members of ONE JIB;
xix. ONE JIB Agreement means the agreement to be entered into by a municipality, ONE JIB and any other municipalities investing through ONE JIB as specified in paragraph 3 of section 15 of the Municipal Investment Regulation;
xx. OSA adviser registration requirement means the requirement in subsection 25(3) of the OSA that prohibits a person or company from engaging in the business of, or holding himself, herself or itself out as engaging in the business of, advising anyone with respect to investing in securities or the buying or selling of securities, unless that person or company is registered in the appropriate category of registration under the OSA;
xxi. OSA dealer registration requirement means the requirement in subsection 25(1) of the OSA that prohibits a person or company from engaging in, or holding himself, herself or itself out as engaging in, the business of trading in securities, unless that person or company is registered in the appropriate category of registration under the OSA;
xxii. OSA investment fund manager registration requirement means the requirement in subsection 25(4) of the OSA that prohibits a person or company from acting as an investment fund manager, unless that person or company is registered as an investment fund manager under the OSA;
xxiii. Participating Municipality means a municipality which has entered into the ONE JIB Agreement.
xxiv. Units means the units, fractionalized ownership interests or other securities issued by or in respect of an Investment Pool.
This decision is based on the following facts represented by the Filers:
Structure of the Filers
1. LAS is a not-for-profit, non-share corporation. The mandate of LAS is to work with Ontario municipalities, as well as organizations from the broader public sector, to help realize lower costs, higher revenues, and enhanced staff capacity through co-operative procurement efforts and innovative training, programs, and services.
2. CHUMS is a not-for-profit corporation established in 1992 by the Municipal Finance Officers’ Association of Ontario (MFOA) and its sole shareholder is MFOA. CHUMS provides advice and services in the area of municipal finance to Ontario municipalities and municipal finance officers and staff.
3. ONE Investment is a not-for-profit corporation without share capital incorporated July 10, 2018 by LAS and CHUMS.
4. None of LAS, CHUMS or ONE Investment is registered in any capacity in Ontario.
5. None of LAS, CHUMS or ONE Investment is in default of any requirement of the OSA or the regulations made thereunder.
6. None of LAS, CHUMS or ONE Investment is in default of any requirement of the CFA or the regulations made thereunder.
7. ONE Investment has been formed in response to an initiative of the Government of Ontario to make possible enhanced investment returns and efficiencies for municipalities. A key policy driver for ONE Investment is to make high-quality investment management available to smaller municipalities that do not have in-house expertise or financial resources to obtain such advisory services on their own, thereby allowing for increasing their risk-adjusted investment returns. ONE Investment will work with, and provide support to, ONE JIB to make available the Investment Pools and the ONE Investment Offering to Eligible Investors.
8. As a not-for-profit corporation, ONE Investment will operate on the basis of a not-for-profit, cost-recovery model.
9. ONE JIB is being established by the Founding Municipalities as a Joint Investment Board under the Municipal Act and the Municipal Investment Regulation. Upon entering into the ONE JIB Agreement and complying with other conditions set out in the Municipal Act and the Municipal Investment Regulation, ONE JIB will have management and control over certain money to be invested by Participating Municipalities.
10. The Municipal Legislation and the City of Toronto Act, 2006, S.O. 2006, c.11 and the applicable regulations made under that Act contain detailed provisions regarding the governance and transparency requirements for municipalities and their investment boards or joint investment boards who choose to invest under section 418.1 of the Municipal Act.
11. The Municipal Act and the Municipal Investment Regulation provide that ONE JIB will be required to enter into the ONE JIB Agreement with each Participating Municipality. The ONE JIB Agreement with each Participating Municipality will be approved by the council of each Participating Municipality in accordance with each such Participating Municipality’s by-laws and procedural rules.
12. Each Participating Municipality is an accredited investor under the definition of accredited investor in section 1.1 of NI 45-106.
13. ONE JIB may manage certain assets of Participating Municipalities in segregated accounts or under co-ownership arrangements whereby the Participating Municipalities will own a direct or indirect interest in the invested assets. In addition, ONE JIB may allocate certain of the assets of Participating Municipalities to the Investment Pools, and ONE Investment will manage the assets of the Investment Pools.
Participating Municipalities and Other Eligible Investors
14. Section 420 of the Municipal Act provides that in addition to other municipalities, the following are prescribed as entities with whom a municipality has the power to enter into an agreement for the investment of money: (i) a public hospital, (ii) a university in Ontario that is authorized to operate under section 3 of the Post-Secondary Education Choice and Excellence Act, 2000, (iii) a college established under the Ontario Colleges of Applied Arts and Technology Act, 2002, (iv) a school board, (v) any agent of an institution described in (i) to (v) of this paragraph; and (vi) additional persons or bodies or any class of them as may be prescribed by the Minister of Municipal Affairs and Housing.
15. Under the definition of accredited investor in section 73.3 of the OSA and section 1.1 of NI 45-106, in addition to municipalities, the following are included as accredited investors: a public board or commission in Canada or a metropolitan community, school board, or any agency of a municipality in Canada. For purposes of the Exemptions Sought, Eligible Investors are the entities described in paragraph 14, provided that that the entity is an accredited investor, and the entities described in this paragraph 15, except that the references to “Canada” are changed to references to “Ontario”.
16. Neither ONE JIB nor ONE Investment will provide investment management or advisory services to any persons or companies other than the Eligible Investors and the Investment Pools.
17. Entities that qualify as Eligible Investors are all municipalities as defined in section 1 of the Municipal Act or other organizations in Ontario’s broader public sector that are generally subject to Ontario legislation and policies that are designed to ensure accountability, transparency and integrity in the public sector. For example the Participating Municipalities are subject to the Municipal Legislation, which provides the basis for appropriate accountability and transparency.
18. ONE JIB is constituted as a joint municipal service board as defined in the Municipal Act and is generally subject to Ontario legislation and policies that are designed to ensure accountability, transparency and integrity in the public sector. For example:
(a) members of the ONE JIB may only act in accordance with the Municipal Legislation, which provides the basis for appropriate accountability and transparency;
(b) the Municipal Legislation, which applies to all members of local boards that are subject to the Municipal Act, including the members of ONE JIB, sets out rights and duties of members concerning ethical conduct and establishing procedures for the disclosure and investigation of ethical breaches; and
(c) as a local board, meetings of ONE JIB will be open to the public.
19. To comply with the governance and financial reporting requirements set out in their by-laws and in the Municipal Legislation, Participating Municipalities have sophisticated governance structures and generally have appropriate financial and business expertise.
Duty of Loyalty and Standard of Care
20. Subsection 418.1(8) of the Municipal Act requires a Participating Municipality, in investing its money, to exercise the care, skill, diligence and judgment that a prudent investor would exercise. Subsection 418.1(9) of the Municipal Act requires a Participating Municipality, in the discharge of its duties, to obtain the advice that a prudent investor would obtain under comparable circumstances.
21. The ONE JIB Agreement provides that ONE JIB will exercise this same standard of care in the discharge of its duties to Participating Municipalities.
22. The ONE JIB Agreement provides for proficiency requirements for ONE JIB members by requiring each such member to have experience and expertise in investment management, risk management, finance, corporate governance, accounting, law or in such other areas of expertise as may be determined from time to time.
23. The Municipal Act provides that:
(a) the municipality must consider the following criteria in planning investments, in addition to any other criteria that are relevant to the circumstances:
1. General economic conditions;
2. The possible effect of inflation or deflation;
3. The role that each investment or course of action plays within the municipality’s portfolio of investments;
4. The expected total return from income and the appreciation of capital; and
5. Needs for liquidity, regularity of income and preservation or appreciation of capital; and
(b) the municipality must diversity its investments to an extent that is appropriate to general economic and investment market conditions;
(the foregoing requirements, together with the standard of care set out in paragraph 20, and the obligations described in paragraph 24, are referred to herein as the Municipal Fiduciary Standard).
24. Subsections 22(1) and (2) of the Municipal Investment Regulation provide that an Investment Board or Joint Investment Board such as ONE JIB may authorize an agent to exercise any of the board’s functions to the same extent that a prudent investor, acting in accordance with ordinary investment practice, would authorize an agent to exercise any investment function. An Investment Board or Joint Investment Board such as ONE JIB is required to exercise prudence in selecting an agent, in establishing the terms of the agent’s authority and in monitoring the agent’s performance to ensure compliance with those terms. When investing the assets of the Participating Municipalities, under the ONE JIB Agreement, ONE JIB and ONE Investment will be subject to the Municipal Fiduciary Standard.
25. The Municipal Legislation collectively establishes a framework for robust governance and compliance systems for Participating Municipalities and ONE JIB that establish requirements for: the disclosure of information to Participating Municipalities, the maintenance of high standards of fitness and business conduct to ensure honest and responsible conduct by ONE JIB, and accountability to Participating Municipalities and their respective councils.
26. ONE JIB is to consist of at least seven and not more than ten members. The first members of ONE JIB will be appointed by the Founding Municipalities. In the future, members of ONE JIB will be nominated by the incumbent members of ONE JIB, and approved by ONE Investment (as proxy for the Participating Municipalities). The Participating Municipalities will retain power to veto a nominee or to terminate a member in extraordinary circumstances. Candidates for membership will be selected in accordance with a skills/needs matrix by a nominating committee which is established in accordance with ONE JIB’s terms of reference.
27. The Municipal Legislation authorizes ONE JIB to make or amend policies governing its proceedings and generally for the conduct and management of ONE JIB’s activities and affairs that are consistent with the Municipal Legislation.
28. In connection with its investment management activities for a Participating Municipality, ONE JIB will adopt and maintain an investment plan to carry out a Participating Municipality’s investment policy and to comply with the Municipal Fiduciary Standard, and ONE Investment will, as an agent of ONE JIB, carry out the day-to-day operations to implement such plans, including in relation to the following matters:
(a) a process for making prescribed reports to the Participating Municipality and its treasurer;
(b) maintenance of books and records that accurately record transactions on behalf of Participating Municipalities and demonstrates compliance with the Municipal Legislation;
(c) prevention of any investments by an Investment Pool, or otherwise by ONE JIB on behalf of a Participating Municipality, which contravene the specific investment restrictions applicable to the Investment Pool, or the Participating Municipality;
(d) a know-your-client (known as KYC) policy to ensure collection of such information as is necessary to verify the identity of each Participating Municipality and to understand its financial objectives and risk tolerance;
(e) if considered necessary, an escalation process for handling concerns or complaints expressed by a Participating Municipality to any member of ONE JIB, which process may be included in the ONE JIB Agreement;
(f) a due diligence process for vetting and monitoring any portfolio managers selected by ONE JIB to manage an Investment Pool or a portion of any assets of an Investment Pool or any assets under management by ONE JIB; and
(g) a due diligence process for the selection of custodians and other agents, which will be completed prior to a custodian or other agent holding or having access to the assets of any Participating Municipality or any Investment Pool, and will include appropriate assurances that such assets are segregated in accordance with industry best practices.
All of the foregoing policies and procedures will be available to Participating Municipalities and prospective Participating Municipalities for review.
29. The due diligence process for selecting custodians will ensure that the custodian of assets of any Participating Municipality, including assets of the Investment Pools, satisfy minimum custodial qualification requirements set out in Section 6.2 or 6.3 of NI 81-102.
30. The ONE JIB Agreement will provide strong governance protection for Participating Municipalities. In addition to governance protections provided through the Municipal Legislation, Participating Municipalities may seek additional protections under the terms of the ONE JIB Agreement or other related agreements.
31. The Filers and any Investment Pools would each become a “market participant” as a consequence of the making of this decision. For the purposes of the OSA, and as a market participants, each of the Filers and any Investment Pool will be required by subsection 19(1) of the OSA to: (i) keep such books, records and other documents as are necessary for the proper recording of its business transactions and financial affairs, and the transactions that it executes on behalf of others; and (ii) keep such books, records and documents as may otherwise be required under Ontario securities law.
Initial Establishment and Funding
32. The Founding Municipalities entered into an initial agreement to establish ONE JIB. Initial funding for ONE JIB and One Investment is being provided by LAS and CHUMS. In the future, ONE JIB and One Investment will be funded through a cost allocation and recovery model to be established by ONE JIB and ONE Investment and agreed to with the Participating Municipalities. These mechanisms will fund the ongoing operation of ONE JIB and ONE Investment at a level which ensures that ONE JIB is adequately funded and ONE Investment is adequately capitalized at all times.
33. The ONE JIB and ONE Investment will ensure that adequate insurance or other protection is maintained which is appropriate for ONE JIB, ONE Investment and the assets under management.
Reporting and Recordkeeping
34. Section 20 of the Municipal Investment Regulation requires ONE JIB to prepare and provide to the council of each Participating Municipality an investment report that must include prescribed information. This reporting process provides Participating Municipalities with transparency into ONE JIB’s activities on behalf of the Participating Municipality.
35. As a local board of each Participating Municipality, ONE JIB will be required to keep minutes of its meetings and to make such minutes available to the public.
The Investment Pools
36. Each Investment Pool is expected to be focused on one or more specific investment mandates or strategies, including domestic and foreign equities and fixed income. The Investment Pools are expected to issue Units in exchange for the cash or other assets allocated from the account of a Participating Municipality or other Eligible Investor to the Investment Pool, and these Units will represent the Eligible Investor’s proportionate interest in respect of the Investment Pool.
37. Certain of the Investment Pools will be an “investment fund” (as that term is defined in subsection 1(1) of the OSA) and certain of these Investment Pools will also be a “mutual fund in Ontario” (as that term is defined in subsection 1(1) of the OSA) and, as such, a “mutual fund in the jurisdiction” (as that term is defined in section 1.1 of NI 81-106).
38. No Investment Pool is yet established. No Investment Pool will be a reporting issuer under the OSA or under the securities legislation of any other province or territory of Canada.
39. Each Investment Pool will be governed by an Investment Pool Document. Such Investment Pool Document will provide that Units of the Investment Pool will be distributed exclusively to Eligible Investors except for the general partner, managing member or equivalent interests (Management Interests) in certain Investment Pools which may be distributed to ONE Investment in connection with the initial organization and management of the Investment Pools. Units can only be beneficially owned by Eligible Investors and Management Interests can only be beneficially owned by ONE Investment or a ONE Investment Subsidiary.
Individuals Acting on Behalf of ONE Investment
40. Individuals who act on behalf of ONE Investment in accordance with an exemption from the OSA adviser registration requirement or the OSA dealer registration requirement, or the CFA adviser registration requirement that is made available to ONE Investment under the Exemptions Sought, will rely upon the same exemption for their compliance with the corresponding registration requirements that would otherwise apply to them under the OSA or the CFA.
41. The Filers will not use section 4.7 of Multilateral Instrument 11-102 Passport System to extend the Exemptions Sought or the Director Exemption Sought to other provinces and territories of Canada.
Decisions of Commission
The Commission is satisfied that granting the Commission Exemptions Sought on the terms set out in this Decision would not be prejudicial to the public interest.
The decision of the Commission under the OSA is that the OSA Exemptions Sought are granted, provided that:
(a) Other than investing in the Investment Pools on behalf of Eligible Investors, the Filers will not engage in discretionary portfolio management; day-to-day portfolio management and advisory services supplied to the Investment Pools or otherwise to Eligible Investors shall be provided by portfolio managers registered or exempt from registration with the OSC;
(b) ONE Investment will institute a process for entering into agreements with an Eligible Investor which have the following elements:
i. at the time of account opening, ONE Investment will review the Eligible Investor’s investment policy and investment plan, if applicable;
ii. ONE Investment will undertake to monitor the Eligible Investor’s investments under the ONE Investment Offering for compliance with the Eligible Investor’s investment policy and investment plan where applicable;
iii. ONE Investment will assist a Participating Municipality in the preparation and presentation of its annual report to the Participating Municipality’s council;
(c) ONE Investment shall send account statements to the Eligible Investor, which will include information about the holdings of the Eligible Investor in the Investment Pools where applicable and showing purchases, redemptions, distributions and reinvestments; and
(d) ONE Investment shall file Reports of Exempt Distribution on Form 45-106F1 with respect to distributions of securities of the Investment Pools on a basis consistent with requirements applicable to investment funds.
The decision of the Commission under the CFA is that the CFA Exemption Sought is granted provided that and for so long as the Filers remain in compliance with the conditions applicable to the OSA Exemption Sought.
Dated this 23rd day of November, 2018.
Ontario Securities Commission
Ontario Securities Commission
Decision of the Director
The Director is satisfied that granting the Director Exemption Sought on the terms set out in this Director Decision would not be prejudicial to the public interest.
The decision of the Director under NI 81-106 is that the Director Exemption Sought is granted, provided that and for so long as
(a) the Filers remain in compliance with the conditions applicable to the OSA Exemption Sought; and
(b) each Eligible Investor provides to the council or equivalent governing body of the Eligible Investor all financial, performance or other reporting as required under the Municipal Legislation.
Dated this 21st day of November, 2018.
Acting Manager, Investment Funds and Structured Products
Ontario Securities Commission