After over five years of consultation, on July 17, 2009, the Canadian Securities Administrators (CSA) released, in final form, National Instrument 31-103 Registration Requirements and Exemptions and various related instruments, including amendments to or revocations of various national and local existing instruments. National Instrument 31-103 and the related instruments will come into force on September 28, 2009, subject to governmental approvals. The various amendments to provincial securities legislation enacted over the past few years that are necessary to allow National Instrument 31-103 to be implemented, including Schedule 26 to Bill 162 in Ontario, are also expected to be proclaimed in force on the same time-table.
National Instrument 31-103, the various provincial securities legislative amendments and the related instruments will put in place Canada’s first-ever comprehensive registration regime for financial services firms and individuals. These instruments contain significant new requirements that, to varying degrees, will impact virtually every financial services firm carrying on business in Canada. While much of National Instrument 31-103 is identical across all of the provinces and territories of Canada, there remain significant areas where the CSA could not reach agreement and accordingly, industry participants will be subject to different regulation depending upon the province and territory within which they operate.
Although the CSA explain they have made no material changes to the version of National Instrument 31-103 last released for comment in February 2008 (which would have necessitated an additional comment period), the final version of National Instrument 31-103 has been reorganized and significantly rewritten (along with receiving an expanded name), with many requirements altered, often in subtle, but substantive ways from the last published version. In addition, the CSA have elaborated on their views and expectations described in the Companion Policy to National Instrument 31-103, which, in many cases, significantly changes the meaning and scope of the applicable requirements. The CSA have also pulled back from previously proposed requirements and have not carried forward some proposed requirements, pending further review.
The CSA also published on July 17, 2009 a final version of National Instrument 45-106 Prospectus and Registration Exemptions and instruments related to that instrument. National Instrument 45-106, which is expected to also come into force on September 28, 2009, is intended to complement National Instrument 31-103 in that the registration exemptions provided for in National Instrument 45-106 will be revoked six months from the implementation date. The only registration exemptions that will be available after that date will be those found in National Instrument 31-103, other than those that are expected to be provided for by blanket order in the western provinces and the territories.
We highlight in this Investment Management Advisory the more important requirements of National Instrument 31-103, along with some of the significant changes made since the last published version.
NATIONAL INSTRUMENT 31-103 – THE FRAMEWORK
National Instrument 31-103 reinforces the CSA’s objective of ensuring that only qualified firms and individuals provide advising and trading services in the Canadian capital markets. The CSA explain in the Companion Policy, aptly in our view, [r]egistrants act as gatekeepers of the integrity of the capital markets. They should not, by act or omission, facilitate conduct that brings the market into disrepute.
Registration will be granted by a securities regulator unless it appears that the applicant is not suitable for registration or that the registration itself is objectionable, and provided the applicant meets the “fit and proper” standards of registration: proficiency, integrity and financial solvency. Once registered, the registrant (firm and individual) must meet on-going conduct requirements, such as dealing fairly, honestly and in good faith with clients, dealing appropriately with conflicts of interest, ensuring that a client’s investments are suitable for the client, maintaining adequate capital and insurance, having a compliance system, maintaining appropriate records and dealing with conflicts of interest.
Under National Instrument 31-103, the test for determining whether a firm or individual is required to be registered will depend on the concept of the “business trigger”, that is, whether the firm or individual is “in the business of”:
- Trading in securities as a principal or agent; whereupon registration as a “dealer” will be necessary
- Advising others about acquiring or disposing of securities; whereupon registration as an “adviser” will be necessary.
In addition, acting as an investment fund manager will necessitate the firm to be registered as an investment fund manager.
Firms that are currently registered as dealers will generally continue to be registered in the same category: investment dealer, mutual fund dealer or scholarship plan dealer. The investment counsel and portfolio manager categories for advisers are combined into one category called portfolio manager. New categories for a firm are exempt market dealer, restricted dealer, restricted adviser and investment fund manager. The following categories of registration have been eliminated: international dealer, limited market dealer, foreign dealer, international adviser, securities adviser and investment counsel.
Registration with the CSA is “permanent”, subject to annual payment of fees, compliance with on-going fit and proper and conduct requirements, and the ability of the Director of the applicable securities regulator to revoke or suspend registration or impose conditions on registration at any time, subject to the registrant’s opportunity to be heard.
The registration requirements contained in National Instrument 31-103 for dealers and advisers include
- Proficiency requirements (other than for IIROC members who must comply with IIROC rules), including new proficiency requirements for advising representatives and associate advising representatives and for the chief compliance officer for a registered firm
- Designation and registration of an “ultimate designated person”
- New minimum capital requirements, which will result in an increase in minimum capital requirements for most non-SRO registrants, other than for portfolio managers that hold client assets
- Modernized insurance requirements for non-SRO registrants, with a formula for calculating insurance limits, rather than a flat rate and recognition of equivalent forms of insurance
- A prohibition on registrants (other than IIROC members) lending money, extending credit or providing margin to clients
- New guidelines for account opening and know-your-client information, record-keeping, holding and custody of client assets, account activity reporting, referral arrangements, compliance regimes and complaint handling
- New requirements for non-SRO registrants to prepare and deliver to clients specified relationship disclosure information
- Exemptions from certain conduct rules when the registrant is dealing with a “permitted client” (essentially a person or company that falls within a prescribed sub-set of super accredited investors), provided, for some requirements, that the permitted client supplies the registrant with an express waiver
- Significantly enhanced initial firm registration requirements, including requirements to file business plans and policies and procedures manuals.
National Instrument 31-103 contains registration exemptions for specific circumstances, including “mobility” registration exemptions which are available to those registrants who wish to continue to deal with or advise a limited number of clients with whom they have a pre-existing relationship and who move to another Canadian province or territory.
Legislative amendments made in conjunction with the coming into force of National Instrument 31-103 require firms acting as an investment fund manager in Canada to register in the new category of investment fund manager. This registration requirement applies to managers of all investment funds managed in a Canadian jurisdiction, whether distributed via prospectus or pursuant to prospectus exemptions. Registration will be required in the jurisdiction in which the investment fund manager has its head office, with investment fund managers without a head office in Canada being exempt from registration for a twoyear period. Investment fund managers will be subject to many of the same fit and proper and conduct rules as apply to other registrants, but the only registered individuals for an investment fund manager will be its UDP and CCO.
The final version of National Instrument 31-103 contains a number of enhanced or changed requirements for various registrants. We highlight these new requirements below under the applicable category of registration. We intend to collect examples of ambiguous or unclear drafting, along with examples of what we believe are unintended consequences of the requirements, such that we will seek clarification from the regulators. We expect the CSA will publish, at some point, either before or after National Instrument 31-103 comes into force, a list of FAQs. We would be pleased to provide the regulators with your views or concerns about any specific provisions you find ambiguous or unclear.
National Instrument 31-103 now exempts investment dealers (members of IIROC) from additional provisions, where the IIROC rules regulate the particular area. IIROC published (also on July 17, 2009) proposed amendments to the IIROC rules relating to the implementation of National Instrument 31-103. IIROC members will need to review those rules in due course to determine the impact on their business and operations.
Mutual Fund Dealers:
The CSA have confirmed that mutual fund dealers may trade in securities of any entity that fits within the definition of “mutual fund” so provided in applicable securities legislation. Mutual fund dealers are not restricted to trading in prospectus qualified mutual funds and do not have to be registered as exempt market dealers to trade in securities of prospectus exempt mutual funds, including pooled funds. The CSA also clarify that mutual fund dealers may also rely on the registration exemption for “specified debt” to trade in these securities without any additional registration. Not surprisingly, mutual fund dealers will not be eligible to trade in exchange traded funds to the extent that these vehicles are not mutual funds. In British Columbia, mutual fund dealers may also trade in securities of scholarship plans.
Mutual fund dealers must look to National Instrument 31-103 for proficiency requirements for representatives and for know-your-client requirements unlike investment dealers which are exempt from National Instrument 31-103 in respect of these requirements, if they comply with IIROC rules.
National Instrument 31-103 will require mutual fund dealers to send out quarterly client statements, which is a change from the current MFDA rules. A 24-month transition period is provided for.
The CSA indicate that they expect that the MFDA will be publishing shortly amendments to its Rules, which amendments will coordinate the MFDA rules with National Instrument 31-103.
Exempt Market Dealers:
The CSA have confirmed that exempt market dealers may trade in securities of any security pursuant to applicable prospectus exemptions, including prospectus-qualified securities where the trade is made in reliance on a prospectus exemption. This means that EMDs may trade for their clients in securities of any investment fund (prospectus-qualified or not), provided that a prospectus exemption is available in respect of that trade. However, the final version of National Instrument 31-103 has been changed from previous versions to limit EMDs to acting as underwriters only in respect of prospectus-exempt securities. EMDs will not, therefore, be able to act as underwriters in respect of prospectus-qualified securities, even where they are only trading in those securities pursuant to applicable exemptions.
The distinction between EMDs that handle, hold or have access to client assets and those that do not, has been eliminated from the final version of National Instrument 31-103. All EMDs will be subject to the same capital, insurance and audited financial reporting obligations.
Significantly however, the securities regulators in Alberta, British Columbia, Manitoba and the three territories of Canada have decided to exempt firms (and their representatives) that are not otherwise registered in any province or territory, from registration as EMDs, if they are in the business of trading in those jurisdictions securities under specified exemptions (including accredited investor, family, friends and business associates, offering memorandum and minimum purchase), provided they comply with certain conditions. These conditions include a prohibition on providing suitability advice about the trade and providing other “financial services” to the client (except in British Columbia). Prescribed risk disclosure must be given to the client and notices filed with the regulators. The regulators of these jurisdictions will issue a blanket order shortly providing for this exemption. The regulator in Saskatchewan continue to consider whether or not to adopt this exemption.
Scholarship Plan Dealers:
Scholarship plan dealer representatives must meet enhanced proficiency within 12 months of the implementation of National Instrument 31-103. These dealers also are exempt from providing client statements, other than annually, given the business model of the industry.
The proficiency requirements for advising representatives and associate advising representatives are largely consistent with the earlier versions of National Instrument 31-103. However the CSA have elaborated on what they will consider as “relevant investment management experience” that an advising representative or associate advising representative must demonstrate. For example, only experience gained at an IIROC-member investment dealer (previous versions referred to registered dealers more generically) or an adviser will count towards the applicable experience required. The 36-month time period within which an applicant must have taken a specified course has been maintained, which means that applicants will continue to have to either retake courses or demonstrate relevant experience if they have not been registered as an advising representative during that period.
Portfolio managers must designate (by notice to the applicable regulator) supervisors for all associate advising representatives and to the extent this has not been done for any associate advising representative by the time National Instrument 31-103 comes into force, portfolio managers will have to do this within 7 days of the implementation date. Portfolio managers that both advise and manage a pooled fund (described in National
Instrument 31-103 as a “non-prospectus qualified investment fund”) do not have to be registered as an exempt market dealer to trade in securities of that fund to “managed accounts” of that adviser. The applicable managed account and pooled fund cannot be created or used “primarily for the purpose of qualifying for the exemption”; a somewhat vague, but intuitively understandable, limitation. Notice must be given to the regulator by the adviser within 7 days after it first relies on the exemption after National Instrument 31-103 comes into force, which for existing pooled funds will be on or before October 5, 2009.
A portfolio manager is prohibited from knowingly causing investment portfolios managed by it (including an investment fund) from making certain enumerated purchases or sales of securities. The applicable section in National Instrument 31-103 has been modified from the previous versions and is designed to replace section 118 of the Securities Act (Ontario) and equivalent provisions in other jurisdictions, which are being repealed. The CSA explain in the Companion Policy that this provision is intended to prohibit “inter-fund trades” and goes on to state that an inter-fund trade occurs when the adviser for an investment fund knowingly directs a trade in portfolio securities to another investment fund that it acts for or instructs the dealer to execute the trade with the other investment fund. We believe that the drafting of the applicable requirement does not support this conclusion nor do we agree with the conclusion, and we intend to request further clarification from the regulators. However, we note that the revised drafting of the prohibition does not prohibit cross-trading between managed accounts of a portfolio manager, which is a welcome change from the previously published version of National Instrument 31-103.
Investment Fund Managers:
Managers of investment funds that are located in Canada, where the manager is also located in Canada, must register in the province or territory where the manager’s head office is located. No other registration will be required at this time, although the CSA indicate that they will publish for comment in due course a proposal that may require investment fund managers to register in other provinces and territories.
Useful additional clarification is provided on the required quarterly reporting of “NAV adjustments”. Fund managers may use the materiality thresholds established by the Investment Funds Institute of Canada when determining whether or not a NAV error has occurred.
An investment fund manager will be required to issue a trade confirmation when it processes a redemption request received directly from a client (that is, not through a registered dealer). This has implications for investment fund managers that have many of the securityholders of their funds registered in “client name”.
Non-Canadian Industry Participants:
An entity that is not incorporated under the laws of Canada may be registered in any category of registration, except where restricted by SRO rules.
Non-Canadian dealers and advisers operating in a Canadian province or territory may rely on the “international dealer exemption” or the “international adviser exemption”, as applicable, provided all conditions to that exemption are met. The most significant of these conditions are restrictions on trading with or advising only “permitted clients” and only on “foreign securities”. The list of “permitted clients” has been expanded from the earlier versions of National Instrument 31-103, but it continues to be a sub-set of super-accredited investors, and international advisers cannot advise Canadian registrants. This last prohibition is new to the final version of National Instrument 31-103 and is not explained. The definition of “foreign security“ keys off the locale where the issuer is incorporated or established, which means that international dealers and international advisers may only trade in, or advise on, securities of issuers not incorporated in Canada, although international advisers may advise on Canadian issuers if such advice is incidental to their advice on non-Canadian securities. In Ontario, non-Canadian dealers and advisers that are relying on these exemptions will continue to have to pay regulatory fees to the Ontario Securities Commission, under OSC Rule 13-502 Fees, even though they are no longer registered in this province.
Significantly, the CSA have removed the “sub-adviser” exemption from the final version of National Instrument 31-103, which was in the previous versions of National Instrument 31-103 and was to be a national expansion of the currently Ontario-only exemption available to advising firms that act as subadvisers to registered portfolio managers. The CSA indicate that they intend to review the exemption “taking into account the regulatory responses to cross-border activity”, but that the Ontario-only exemption will continue, with the other CSA members willing to provide exemptions from the requirement to be registered as an adviser, if applied for. No further explanation is given about this decision, which we don’t understand and consider disappointing.
Non-Canadian portfolio managers to investment funds that are managed outside of Canada, but that are distributed within Canada, no longer have to be concerned about registration as an adviser in Canada. Consistent with the earlier versions of National Instrument 31-103, the “flow-through” regulatory theory that previously applied in Ontario in respect of advice provided to funds, and indirectly to investors in those funds, has been rejected.
Entities that do not have an office in Canada and that act as investment fund managers of investment funds that are distributed in Canada, even where these funds are established in Canada, do not have to be registered in Canada as investment fund managers, at least for now. The CSA proposal referred to above (under Investment Fund Managers) may contain a proposal for registration of these entities. The Ontario Securities Commission have confirmed that they interpret OSC Rule 13-502 Fees so as to require these entities (referred to in OSC Rule 13-502 as unregistered investment fund managers) to pay annual participation fees to the OSC under that Rule. We have provided the OSC with a number of submissions about this interpretation, given that we believe this interpretation is not appropriate.
Any firm that obtained an exemption from a rule or legislative provision before the implementation of National Instrument 31-103 may continue to rely on that exemption, in respect of requirements in National Instrument 31-103 that are substantially similar to the earlier requirements, to the same extent and on the same conditions. For example, investment fund managers that are today registered as mutual fund dealers may continue to rely on the earlier series of exemptions granted from having to become members of the MFDA.
The CSA expand on the expected content of relationship disclosure information when a registrant is trading or advising on a mutual fund, much of which we find curious in light of the extensive prospectus disclosure for mutual funds that must be provided to clients and that is otherwise available to investors. The CSA also indicate that they expect to, within the next two years, propose amendments to National Instrument 31-103 to add requirements or guidance for “cost disclosure and performance reporting” to clients. These elements are part of the “client relationship model” and have been developed by the MFDA and IIROC for their members. The CSA are waiting to review those proposals and will ensure that National Instrument 31-103 contains consistent rules.
Clarity is provided around referral arrangements. Provision of names and contact information of potential clients is considered to be a referral arrangement if the registrant pays for that information. This has important implications to certain sectors of the financial services industry where “client lists” are routinely purchased from other businesses. The CSA have also confirmed that the referral arrangement requirements apply to arrangements between affiliates.
Certain conduct rules do not apply in respect of registrants when they are dealing with “permitted clients” and those clients waive the specific requirement. For example, a permitted client can waive the requirement for a registrant to ensure that a trade or specific advice is suitable for that client.
The distinction between “activity” records and “relationship” records has been eliminated from the record-keeping requirements and the CSA’s expectations for record-keeping are described in greater detail in the Companion Policy. We note that there is no transition for the record-keeping requirements and registrants should ensure that their practices are consistent with the new requirements.
The CSA have confirmed that most notices and filings with the regulators can be conducted with the registrant’s principal regulator, which will be the regulator in the province where the firm has its head office, or the individual has its “working” office. This concept fits with the principles behind the passport system, which now will operate for registration applications and filings through the implementation of amendments to Multilateral Instrument 11-102 Passport System and the implementation of National Policy 11-204 Process for Registration in Multiple Jurisdictions. These amendments and the new National Policy will also come into force on September 28, 2009.
New Registration Exemptions:
While the securities-related activities of federally regulated financial institutions are not separately addressed in National Instrument 31-103, generally, each province and territory is maintaining the status quo on securities-related requirements applicable to these institutions. Ontario has amended the Securities Act (Ontario) to provide a specific exemption from the dealer, adviser and investment fund manager registration requirements for financial institutions that carry on dealing, advising and investment fund manager activities in accordance with the institutions’ governing legislation.
The CSA have, however, included in National Instrument 31-103 what they describe as a “new exemption for banks, hedge funds and pension funds”. This exemption is consistent with the long-standing registration exemption available when trades are made solely through an agent who is a registered dealer or to a registered dealer who is purchasing as principal. The CSA’s description of this exemption does not, in our view, fit with the scope of the exemption, nor does its explanation in the Companion Policy about this exemption provide much additional clarity.
Transition and Key Dates
There are a number of transition periods provided under National Instrument 31-103 for firms and individuals that are currently registered or are currently carrying on business in the exempt market or as a fund manager. These transition periods range from 3-24 months following implementation of National Instrument 31-103. Most existing registrants will be automatically converted over on the National Registration Database to the corresponding category of registration under National Instrument 31-103. The conversion will take place during an NRD freeze-period from September 25 to October 12, 2009. Firms will have read-only access to NRD during the freeze period, and authorized firm representatives will be unable to create new submissions via NRD. During the freeze period firms will only be required to file, using the new paper forms, material information (eg. reinstatements, terminations for cause, etc.).
Key dates include:
- Monday, September 28, 2009 – Implementation of National Instrument 31-103 – except as specifically mentioned in Part 16 of National Instrument 31-103, registrants must comply with all of the new requirements of National Instrument 31-103 as of that date. Unregistered firms established after this date will apply for registration under the new regime.
- Wednesday, October 28, 2009 (one month from implementation) – international dealers, so registered prior to September 28, 2009, must file a completed Form 31-103F2 if they intend to carry on business in Canada under the international dealer registration exemption. Their registration as international dealers will be revoked as of September 28, 2009.
- Monday, December 28, 2009 (three months from implementation) – All existing registrants (as of September 28, 2009) must designate a UDP and a CCO for the firm, and apply for registration of these individuals.
- Monday, March 28, 2010 (six months from implementation) – All existing registrants (as of September 28, 2009) must
- satisfy new bonding and insurance requirements
- ensure referral arrangements that were in place before September 28, 2009 comply with new requirements. Note that any new referral arrangement entered into after September 28, 2009 must comply with the new requirements.
- Tuesday, September 28, 2010 (12 months from implementation):
- Firms acting as investment fund managers as of September 28, 2009 must apply for registration in that category and hence must meet all applicable fit and proper requirements.
- Firms active in the exempt market (that is, that existed as operating entities) as of September 28, 2009 must apply for registration as exempt market dealers and hence must meet all applicable fit and proper requirements.
- International advisers registered in that category in Ontario as of September 28, 2009 must file a completed Form 31-103F2 if they intend to carry on business in Canada under the international adviser exemption. Their registration will be revoked as of September 28, 2010.
- All registered firms as of September 28, 2009 must begin to deliver relationship disclosure to clients. We note that there is no discussion about delivery to existing clients and we intend to seek clarity on this point from the regulators.
- All registered firms as of September 28, 2009 must satisfy new capital requirements.
- Representatives of scholarship plan dealers and exempt market dealers must satisfy new proficiency requirements.
- CCOs of exempt market dealers must meet new proficiency requirements.
- Wednesday, September 28, 2011 (24 months from implementation):
- All registered firms must ensure that independent dispute resolution or mediation services are made available to clients to resolve complaints.
- Mutual fund dealers must comply with new requirements for delivery of client statements.