The trade reporting rules of the securities regulatory authorities in Ontario, Manitoba and Quebec will require reporting beginning October 31. A number of changes to the rules have been made since they were first published in June 2013. On the eve of these rules coming into force, we thought it a good time to republish our article from earlier this year, but incorporating developments since then. Other provinces have still not announced any rules or instruments dealing with trade reporting, but rules are expected in the near future from many of them.
The OTC Derivatives Committee of the Canadian Securities Administrators published model provincial rules with respect to trade reporting for comment in December 2012 and Ontario, Quebec and Manitoba each published proposed harmonized rules in June 2013. The final rules in these three provinces came into force on December 31, 2013, but with staggered implementation of reporting obligations over the course of this following year and next. The initial reporting deadline of July 2, 2014 was extended in all three jurisdictions to October 31, 2014. There have also been further changes to the rules to limit dual reporting by incorporating the ISDA reporting logic. We will refer to Rule 91-507 (or in Quebec Regulation 91-507) as the TR Rule. At the end of this article you will find links to the amended TR Rules.
We have focused our comments on the data reporting and dissemination aspects of the rules.
Product Determination – Rule 91-506
Each rule comes with a related Product Determination Rule that establishes which transaction types the rule applies to (or more accurately does not apply to). This rule has not been revised, but it certainly has been the subject of much consideration by market participants.
The Ontario and Manitoba Securities Acts include a broad definition of "derivative", but exclude from the definition any contract or instrument prescribed by regulation not to be a derivative. The Quebec Derivatives Act (QDA) includes a similar definition of derivative and the QDA itself provides for certain exemptions from the wide definition. Rule 91-506 and its Companion Policy for Ontario and Manitoba prescribe exclusions from this definition that apply to the TR Rule. The similar regulation in Quebec does the same, subject to certain differences arising from the fact that the QDA itself already includes similar exclusions. The types of derivatives excluded from the application of the TR Rule are:
- regulated gaming contracts;
- insurance and annuities;
- spot currency transactions;
- physical commodity transactions, other than cash or currency (or securities);
- certain bank deposits; and
- exchange traded derivatives (but not OTC transactions executed on a derivatives execution facility).
A chart at the end of this article provides further detail on these exclusions. The excluded transactions are broadly similar to those excluded under the CFTC rule, but with a lot less detail and, therefore, more ambiguity. The rule also provides a set of principles for determining when certain transactions that could also be characterized as securities will be reportable.
Through ISDA’s Data and Reporting Group for Canada, consensus has developed around many products and situations where the application of the rule is unclear (eg. physically settled equity and bond forwards, block trades pre-allocation) and we expect this to be an on-going process as questions continue to arise.
Trade Repository and Data Reporting – 91-507
The first part of the TR Rule relates to the regulation of trade repositories, while the second part sets out obligations with respect to data reporting and dissemination of that data.
Rule 91-507 sets out the rules and obligations regarding the designation of trade repositories, the filing of initial, annual and interim audited financial statements and governance requirements. Among other things, designated trade repositories (DTRs) will be required to meet numerous obligations regarding such things as (i) access to services; (ii) the maintenance of data records; (iii) risk management; (iv) data security and confidentiality; and (v) outsourcing. Chicago Mercantile Exchange Inc., DTCC Data Repository (U.S. ) LLC and ICE Trade Vault, LLC have been designated for Ontario and Quebec and will be designated shortly for Manitoba.
The key jurisdictional touchstone is that the transaction involves a “local counterparty”. A “reporting counterparty” to a transaction involving a local counterparty will be required to report or cause to be reported data for its derivative transactions to a DTR.
Let’s first consider the “local counterparty” definition. The definition is the same in each of the jurisdictions, so we will consider Ontario to illustrate. A counterparty will be considered a “local counterparty” in Ontario if one of the following conditions is fulfilled at the time of the transaction:
- The counterparty is a person organized under the laws of Ontario (e.g. an Ontario business corporation, pension plan or partnership);
- The counterparty is a person or company that has its head office in Ontario;
- The counterparty is a person that has its principal place of business in Ontario;
- The counterparty is not itself an Ontario entity in the above sense, but it is an affiliate of such an Ontario entity and the Ontario entity is responsible for all or substantially all of the affiliate’s liabilities;
- The counterparty is registered as a derivatives dealer pursuant to Ontario securities laws; or
- The counterparty is registered in an alternative category to the derivatives dealer category (i.e. a category analogous to the major swap participant category under the Dodd-Frank Act).
Individuals are not “local counterparties” so trades with individuals are reportable only if the other party is a local counterparty.
Note that this local counterparty determination is one that has to be made on a jurisdiction by jurisdiction basis. Therefore, a party may be considered to be a “local counterparty” in more than one jurisdiction. The derivatives dealer and alternative category rules are not yet published (except certain dealer registration rules currently exist in Quebec), so the last two bulleted categories will have significance only for Quebec, and given the breadth of exemptions currently in place in Quebec only in limited circumstances in Quebec as well, until the derivatives dealer registration regimes are in place (not expected until late 2015).
Many market participants do not have static data with respect to their counterparties that allows them to easily determine if these counterparties are local counterparties in particular Canadian jurisdictions. To facilitate collection of the relevant data, ISDA published a Canadian representation letter. ISDA and Markit developed a joint solution available on ISDA Amend to both the dealer and end-user community to facilitate the sharing of such representations.
Reporting a counterparty
Having determined whether there is a local counterparty in a particular jurisdiction, the question then is which party has the legal obligation to report the transaction data. The rules set out a hierarchy to determine the reporting counterparty. Under the under the original version of the TR Rule, the reporting counterparty with respect to a transaction involving a local counterparty is deemed to be:
- if the transaction is cleared through a clearing agency that is recognized or exempt in the jurisdiction, the clearing agency;
- if the transaction is between two derivatives dealers, each derivatives dealer;
- if the transaction is between a derivatives dealer and a counterparty that is not a derivatives dealer, the derivatives dealer; and
- if the transaction is between two non-dealers, the local counterparty to the transaction if there is only one local counterparty or each local counterparty if both are local counterparties.
Two issues arose with this hierarchy.
The first relates to the clearing agency category. One gap that was recognized was that if you have a local counterparty in Quebec, but the transaction is cleared through a clearing agency recognized in Ontario, but not Quebec (as may be the case if there are no Quebec clearing members), the clearing agency would not have the reporting responsibility in that case and the next levels in the hierarchy would apply. While a reporting counterparty may delegate its reporting obligations to the clearing agency, the reporting counterparty would remain responsible for ensuring the timely and accurate reporting of derivatives data by the clearing agency. The recently announced amendments to the Quebec rule deals with the issue by introducing the concept of a “reporting clearing house” which includes recognized or exempt clearing houses and also a clearing house that submitted an undertaking accepted by the AMF to act as the reporting counterparty for purposes of meeting the Quebec reporting requirement. Since the major derivatives clearing organizations are recognized or exempt in Ontario this is not an immediate issue in Ontario. The website of each regulator provides information as to recognized and exempt clearing agencies:
MCS - www.msc.gov.mb.ca/legal_docs/orders/6859_clearing_agency_bo.html - there is currently a blanket exemption covering the major clearing agencies
The second relates to the desire to avoid dual reporting. ISDA members have developed a set of Canadian trade reporting rules based on the Dodd-Frank reporting hierarchy and thereby leveraging the technology builds institutions had for CFTC compliance (ISDA Methodology). That methodology assigns responsibility in cases where two dealers or two end-users are both reporting counterparties. The initial thought was that parties could rely on delegation of reporting obligations to implement the ISDA Methodology (as under CFTC Rules) and thereby avoid dual reporting. However, the TR Rule, while allowing delegation, does not relieve the delegating party of responsibility for ensuring timely and accurate reporting. This was seen by the dealer community as precluding them from relying on delegation as it would be easier to report than to build the systems required to monitor their counterparty’s compliance. The CSA also would prefer a single reporting party, so amendments to the rules have been made or are in the process of being made to incorporate the ISDA Methodology for determining the reporting party into the TR Rule itself. The condition of relying on the ISDA Methodology is that the parties have agreed specifically to adhere to it. ISDA has developed a dealer and non-dealer version of a Multilateral Agreement to satisfy this condition. In Ontario and Manitoba, the hierarchy now is:
Click here to view table.
Quebec has announced amendments to the rule committed to implementing amendments with similar effect, albeit with modification that requires Canadian financial institutions (Canadian FIs) to report even where they are not dealers if the transaction is with a local counterparty and which puts the reporting obligation on the local dealer where the transaction is between a local and a non-local dealer (unless the reporting has been delegated to the non-local dealer). Under the amended rule the hierarchy in Quebec will be:
Click here to view table.
Who is a Dealer
A “derivatives dealer” is defined generally under the TR Rule as a person or company engaging in the business of trading in derivatives in the province as principal or agent. A dealer does not have to be a registered derivatives or securities dealer to fall within this category. Further guidance on what constitutes the business of trading in derivatives can be found in the discussion of business triggers under CSA Consultation Paper 91-407 Derivatives: Registration. There is no explicit de minimus exception. The ISDA Canadian Representation Letter allows parties to represent to their counterparties that they are deemed to be a dealer for purposes of the TR Rule with respect to all or any of the Canadian jurisdictions.
Reporting to Regulators
Where no DTR accepts the data required to be reported, the reporting counterparty must electronically report the data to the regulator.
The TR Rule incorporates a limited substitute compliance provision. It applies if the only local counterparty is a registered derivatives dealer or a guaranteed affiliate of a local counterparty (i.e. part (b) or (c) of the local counterparty definition). The reporting party does not have to comply with the local TR Rule if it reports to a DTR pursuant to the securities legislation in another province or the laws of a designated foreign jurisdiction, and it instructs the DTR to give the local regulator access to the derivatives data that it was required to report and otherwise uses its best efforts to give the regulator that access. This provision is intended to avoid duplicative reporting in cases where the trading activity in question may have little connection with the province. The rule does not specify which jurisdictions are deemed to have equivalent reporting obligations for purposes of this provision; rather such designations will be made by the regulator in each province from time to time. The only designation made to date has been the reporting rules of the CFTC. The rule provides that data must be reported to the same DTR as the initial report was made to. Note that the trade repository must be a ‘designated trade repository’ and that means designated in the relevant Canadian jurisdiction, not just designated in the non-local jurisdiction.
Data Fields and Timing of Reporting
Creation data are generally to be reported in real time and life-cycle event data must generally be reported by the end of the business day on which the life cycle event occurs.
Valuation data based on industry accepted standards must be reported to the DTR daily, based on previous day’s closing market data, if the reporting counterparty is a derivatives dealer or clearer or, in other cases, quarterly as of the last day of the calendar quarter and within 30 days of the end of the quarter.
Errors or omissions must be reported as soon as technologically practicable after their discovery, which can’t be later than the end of the business day following the discovery.
Reporting counterparties will also have to identify each reported transaction with a unique product identifier and Rule 91-507 also outlines the minimum data fields that are required to be reported to a designated trade repository.
Data fields required under the TR Rule are not exactly the same as those required under CFTC rules or EMIR.
Provisions have been included for the reporting of data for transactions where the reporting counterparty is a dealer or clearing agency that are entered into before and still outstanding on October 31, 2014. A more limited set of creation data for these transactions must be reported by April 30, 2015 if obligations were outstanding on October 31 and it did not expire or terminate on or before April 30. If the reporting counterparty is not a derivatives dealer or clearing agency (or in Quebec a Canadian FI), then the reporting obligation applies to transactions entered into before and still outstanding on June 30, 2015 and those must be reported by December 31, 2015 if they are still outstanding on that date.
From the time the creation data is reported for these transactions, life-cycle and valuation data must then be reported.
A reporting counterparty must keep transaction records in a safe and durable form for 7 years after the date on which the transaction expires or terminates.
Data Dissemination and Access by DTRs
DTRs must provide the regulator with electronic access to such data as it requires and must create aggregate data and make it available to the regulator as it requires. A reporting counterparty is obligated to use its best efforts to provide the local regulator with access.
DTRs must provide the properly authorized representatives of counterparties with access to all the data relevant to their transactions. The rule deems each counterparty to consent to that disclosure and it applies despite any agreement to the contrary.
A DTR must give the public aggregate data on open positions, volume, number and price relating to transactions with breakdowns by currency, location of reference entities or assets, asset class, type of contract, maturity and whether or not it is cleared. It must not disclose the identity of the parties. A DTR is not required to publicize any data for transactions between affiliated companies (“affiliated companies” is defined in the Securities Act).
There are two exclusions noted in the rule itself of limited utility.
First, if the asset class of the transaction is a commodity (other than cash or currency) and the local counterparty is not a derivatives dealer and the local counterparty has less than $500,000 aggregate notional value, without netting, under all its outstanding transactions (whether or not they are commodity transactions) at the time of the transaction (including the notional value of this transaction), then the rule does not apply. There is nothing in the rule that permits reliance by a reporting counterparty on a representation of the local counterparty or any other indication of how the reporting counterparty could confirm that assessment. The use of gross notional value seems somewhat meaningless. We suspect this particular exclusion will not be seen as very important.
The second applies only to intergovernmental transactions so it not of much interest (unless you happen to be the government of course). Trades between sovereigns and other parties are reportable.
There is no exclusion for inter-affiliate trades.
The regulator can grant exemption orders on application.
Click here to view table.
* Other Canadian jurisdictions that adopt a similar rule may set later dates.
Links to rules and Future Amendments
Click here to view table.
Click here to view table.