CMC Markets Canada Inc.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Application by Filer for relief from prospectus requirement in connection with distribution by Filer of “contracts for difference” (CFDs), over-the-counter (OTC) foreign exchange (FX) contracts and other similar OTC contracts (collectively, OTC Contracts) to investors resident in Applicable Jurisdictions, subject to terms and conditions – Filer is registered in Ontario as investment dealer and a member of the Investment Industry Regulatory Organization of Canada (IIROC) – Applicant seeking relief to permit Applicant to offer OTC Contracts to investors in Applicable Jurisdictions, including relief permitting Applicants to distribute OTC Contracts on the basis of clear and plain language risk disclosure document rather than a prospectus – risk disclosure document contains disclosure substantially similar to risk disclosure document required for recognized options in OSC Rule 91-502 Trades in Recognized Options and the regime for OTC derivatives contemplated by former proposed OSC Rule 91-504OTC Derivatives (which was not adopted), and the Quebec Derivatives Act – Relief consistent with relief contemplated by OSC Staff Notice 91-702Offerings of contracts for difference and foreign exchange contracts to investors in Ontario (OSC SN 91-702) – Relief granted, subject to terms and conditions as described in OSC SN 91-702 including four-year sunset clause
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 53, 74(1).
OSC Rule 91-502 Trades in Recognized Options.
OSC Rule 91-503 Trades in Commodity Futures Contracts and Commodity Futures Options Entered into on Commodity Futures Exchanges Situate Outside of Ontario.
Proposed OSC Rule 91-504 OTC Derivatives (not adopted).
December 21, 2018
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO
(the Jurisdiction)
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS
IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
CMC MARKETS CANADA INC.
(the Filer)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the Filer and its respective officers, directors and representatives be exempt from the prospectus requirement in respect of the distribution of contracts for difference (CFDs), over-the-counter (OTC) foreign exchange (FX) contracts and other similar OTC contracts (collectively, OTC Contracts) to investors resident in the Applicable Jurisdictions (as defined below) subject to the terms and conditions below (the Requested Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application);
(a) the Ontario Securities Commission (OSC) is the principal regulator for this application (the Principal Regulator); and
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the other provinces and territories of Canada, other than Alberta and Quebec (the Non-Principal Jurisdictions and, together with the Jurisdiction, the Applicable Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This Decision is based on the following facts represented by the Filer:
The Filer
1 The Filer is a corporation amalgamated under the laws of Canada with its principal office in Toronto, Ontario.
2 CMC Markets Plc, the ultimate parent company of the Filer, is listed on the London Stock Exchange.
3 The Filer is registered as a dealer in the category of investment dealer in each of the provinces and territories of Canada and is a member of the Investment Industry Regulatory Organization of Canada (IIROC).
4 The Filer is registered as a derivatives dealer under the Derivatives Act (Quebec) (the QDA) in Quebec.
5 The Filer is not in default of applicable securities legislation in any province or territory of Canada, or IIROC Rules or IIROC Acceptable Practices (as defined below).
6 The Filer and its affiliate, CMC Markets UK Plc (CMC UK), previously received exemptive relief to offer OTC Contracts to investors in each Applicable Jurisdiction in accordance with terms and conditions set out in In the Matter of CMC Markets UK Plc and CMC Markets Canada Inc. dated January 30, 2018 (the Existing Relief).
7 The Filer wishes to offer OTC Contracts to investors in the Applicable Jurisdictions on the terms and conditions described in this Decision. For the Interim Period (as defined below), the Filer is seeking the Requested Relief in connection with the proposed offering of the OTC Contracts in Ontario and intends to rely on this Decision and the “Passport System” described in MI 11-102 to offer OTC Contracts in the Non-Principal Jurisdictions.
8 In Quebec, the Filer intends to apply for a qualification and authorization to market a derivative (the AMF Order) from the Autorite des Marches Financiers (the AMF) to offer OTC Contracts to retail investors pursuant to the provisions of the QDA. The final AMF Order will, if granted, allow the Filer to offer specified OTC Contracts to investors in Quebec on similar terms and conditions as are contained in this decision.
9 The Filer understands that staff of the Alberta Securities Commission have public interest concerns with CFD trading by retail clients and, accordingly, the Filer will not offer OTC Contracts to retail investors in Alberta. The Filer undertakes not to give notice that subsection 4.7(1) of MI 11-102 is intended to be relied upon in Alberta.
10 The Filer is seeking relief from the prospectus requirement because it is restructuring its business in order to simplify its Canadian structure and align the Canadian structure with the structure being used in most other non-UK jurisdictions in which affiliates of the Filer offer similar products. In most other non-UK jurisdictions, the local dealer is the counterparty to trades by its clients in OTC Transactions and the local dealer manages the risk in its client positions by simultaneously placing the identical OTC Transaction on a back-to back basis with CMC UK. In the UK, CMC UK acts as the counterparty to trades by its clients in OTC Transactions.
IIROC Rules and Acceptable Practices
11 As a member of IIROC, the Filer is only permitted to enter into OTC Contracts pursuant to the rules and regulations of IIROC (the IIROC Rules).
12 In addition, IIROC has communicated to its members certain additional expectations as to acceptable business practices (IIROC Acceptable Practices) as articulated in IIROC’s paper “Regulatory Analysis of Contracts for Differences (CFDs)” published by IIROC on June 6, 2007 and as amended on September 12, 2007, for any IIROC member proposing to offer OTC foreign exchange contracts or other types of CFDs to investors. The Filer is in compliance with IIROC Acceptable Practices in offering OTC Contracts. The Filer will offer OTC Contracts in accordance with IIROC Acceptable Practices as may be established from time to time, and will not offer CFDs linked to bitcoin, cryptocurrencies or other novel or emerging asset classes to investors in the Applicable Jurisdictions without the prior written consent of IIROC.
13 The Filer is required by IIROC to maintain a certain level of capital to address the business risks associated with its activities. The capital reporting required by IIROC (as per the calculation in the Form 1 and the Monthly Financial Reports to IIROC) is based predominantly on the generation of financial statements and calculations so as to ensure capital adequacy. The Filer, as an IIROC member, is required to have a specified minimum capital which includes any additional capital required in respect of margin requirements and other risks. This risk adjusted capital is summarized as a risk adjusted capital calculation which is submitted in the Filer’s Form 1 and required to be kept positive at all times.
Online Trading Platform
14 The Filer’s NextGeneration platform (the Platform) is a proprietary and fully automated internet-based trading platform which allows clients to trade OTC Contracts on an execution-only basis.
15 The Platform is a key component in a comprehensive risk management strategy which helps the Filer’s clients and the Filer to manage the risks associated with leveraged products. This risk management system has evolved over many years with the objective of meeting the mutual interests of all relevant parties (including, in particular, clients). The attributes and services of the Platform are described in more detail below:
(a) Real-time account status and client reporting. Clients are provided with a real-time view of their account status. This includes how tick-by-tick price movements affect their account balances and required margins. Clients can view this information at any time by logging into their account.
(b) Fully automated risk management system. Clients are instructed that they must maintain the required margin against their position(s). The risk management functionality of the Platform ensures that client positions are closed out when the client no longer maintains sufficient margin in their account to support the position, thereby limiting the chances of a client’s account value being negative and the Filer has a manual process in place designed to limit losses to a stated amount. This functionality also ensures that the Filer will not incur any credit risk vis-à-vis its customers in respect of transactions in OTC Contracts.
(c) Wide range of order types. The Platform also provides risk management tools such as stop loss orders and contingent orders. These tools are designed to help clients reduce the risk of loss.
16 The Platform is similar to those developed for on-line brokerages in that the client trades without other communication with, or advice from, the dealer. The Platform is not a “marketplace” as defined in National Instrument 21-101 Marketplace Operation since a marketplace is any facility that brings together multiple buyers and sellers by matching orders in fungible contracts in a nondiscretionary manner.
17 In the future, the Filer may provide clients with the option to use other additional and/or third party trading platforms (Additional Platforms) when clients enter into OTC Transactions for which the Filer acts as the counterparty. Any such Additional Platform will work in conjunction with, and have substantially similar attributes and services as, the Platform as described in paragraph 14.
18 The Filer will be the counterparty to trades by its clients in OTC Contracts (OTC Transactions). It will not act as an intermediary, broker or trustee in respect to the OTC Transactions. The Filer does not manage any discretionary accounts, nor does it provide any trading advice or recommendations regarding OTC Transactions.
19 The Filer manages the risk in its client positions by simultaneously placing the identical OTC Transaction on a back-to-back basis with CMC UK, an “acceptable counterparty” (as the term is defined in the Form 1). CMC UK, in turn, determines on a daily basis which of its positions it needs to hedge. By virtue of this risk management functionality inherent in the Platform, the Filer eliminates both market risk and counterparty risk. This also means that the Filer does not have an inherent conflict of interest with its clients, since it does not profit on a position if the client losses on that position, and vice versa. The Filer is currently compensated on a “cost plus” model by CMC UK. The Filer also charges clients a commission on OTC Transactions.
20 The OTC Contracts offered by the Filer are not transferable or fungible with other contracts or financial instruments.
21 The ability to lever an investment is one of the principal features of OTC Contracts. Leverage allows clients to magnify investment returns (or losses) by reducing the initial capital outlay required to achieve the same market exposure that would be obtained by investing directly in the underlying currency, instrument, asset or sector.
22 IIROC Rules and the IIROC Acceptable Practices set out detailed requirements and expectations relating to leverage and margin for offerings of CFDs and other OTC Contracts. The degree of leverage may be amended in accordance with IIROC Rules and IIROC Acceptable Practices as may be established from time to time.
23 Pursuant to Section 13.12 [Restriction on lending to clients] of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103), only those firms that are registered as investment dealers (a condition of which is to be a member of IIROC) may lend money, extend credit or provide margin to a client.
Structure of CFDs
24 A CFD is a derivative product that allows clients to obtain economic exposure to the price movement of an underlying instrument, asset, or sector, such as a share, index, market sector, currency pair, treasury or commodity, without the need for ownership and physical settlement of the underlying instrument or asset. Unlike certain OTC derivatives, such as forward contracts, CFDs do not require or oblige either the client or principal counterparty nor any agent of the principal counterparty to deliver the underlying instrument or asset.
25 The CFDs and OTC Contracts to be offered by the Filer will not confer the right or obligation to acquire or deliver the underlying security or instrument itself, and do not confer any other rights of holders of the underlying security, instrument, or asset, such as voting rights. Rather, a CFD is a derivative instrument which is represented by an agreement between a client and a counterparty to exchange the difference between the opening price of a CFD position and the price of the CFD at the closing of the position. The value of the CFD is generally reflective of the movement in prices at which the underlying instrument or asset is traded at the time of opening and closing the position in the CFD.
26 CFDs allow clients to take a long or short position on an underlying instrument, asset, or sector but, unlike futures contracts, they have no fixed expiry date, standard contract size, or an obligation for physical delivery of the underlying instrument or asset.
27 CFDs allow clients to obtain exposure to markets, instruments, and assets that may not be available directly, or may not be available in a cost-effective manner.
OTC Contracts Distributed in the Applicable Jurisdictions
28 Certain types of OTC Contracts may be considered to be “securities” under the securities legislation of the Applicable Jurisdictions.
29 Investors wishing to enter into an OTC Contract with the Filer must first open an account with the Filer.
30 Prior to a client’s first OTC Transaction, and as part of the account opening process, the Filer will provide the client with a separate risk disclosure document that clearly explains, in plain language, the transaction and the risks associated with the transaction (the Risk Disclosure Document). The Risk Disclosure Document includes the required risk disclosure set forth in Schedule A to the Regulations to the QDA and leverage risk disclosure required under the IIROC Rules. The Risk Disclosure Document also contains disclosure that is substantially similar to the risk disclosure statement required for recognized options in OSC Rule 91-502 Trades in Recognized Options (which provides for both registration and prospectus exemptions) (OSC Rule 91-502) and the regime for OTC derivatives contemplated by OSC SN 91-702 Offerings of Contracts for Difference and Foreign Exchange Contracts to Investors (OSC SN 91-702) and proposed OSC Rule 91-504 OTC Derivatives (which was not adopted) (Proposed Rule 91-504). Prior to a client’s first OTC Transaction, the Filer will ensure a complete copy of the Risk Disclosure Document will be delivered to the client through the online account application and will be delivered, or has previously been delivered, to the Principal Regulator.
31 As part of the account opening process and prior to the client’s first OTC Transaction, the Filer will also obtain a written or electronic acknowledgement from the client confirming that the client has received, read and understood the Risk Disclosure Document. Such acknowledgment will be separate from and prominent among other acknowledgements provided by the client as part of the account opening process.
32 As is customary in the industry, and due to the fact that this information is subject to factors beyond the control of the Filer (such as changes in the IIROC Rules), information such as the underlying instrument listing and associated margin rates will not be disclosed in the Risk Disclosure Document. Instead, such information will be part of a client’s account opening package and will be available on both the Filer’s website and the Platform.
Satisfaction of the Registration Requirement
33 The role of the Filer as it relates to the offering of OTC Contracts (other than it being the principal under the OTC Contracts) will be limited to acting as an execution-only dealer. The Filer will be, among other things, responsible for approving all marketing, for holding of all client funds and for client approval (including the review of know-your client (KYC) due diligence and account opening suitability assessments pursuant to NI 31-103).
34 IIROC Rules exempt member firms that provide execution-only services (such as discount brokerages) from the obligation to determine whether each trade is suitable for a client. However, IIROC has exercised its discretion to impose additional requirements on IIROC members proposing to trade in CFDs and OTC Contracts which requires, among other things, that:
(a) applicable risk disclosure documents and client suitability waivers be provided in a form acceptable to IIROC;
(b) the firm’s policies and procedures, amongst other things, require the Filer to assess whether trading in OTC Contracts is appropriate for a client before an account is approved to be opened. This account opening suitability process includes an assessment of the client’s investment knowledge and trading experience, client identification, screening applicants and customers against lists of prohibited/blocked persons, and detecting and reporting suspicious trading and potential terrorist financing and money laundering activities to applicable enforcement authorities;
(c) the Filer’s registered dealing representatives, as well as their registered supervisors who oversee the KYC and initial product suitability analysis, will meet, or be exempt from, proficiency requirements for futures trading and will be registered with IIROC as Investment Representatives for retail customers in the product categories of Future Contracts and Futures Contract Options. In addition, the Filer must have a fully qualified Supervisor for such products; and
(d) cumulative loss limits for each client’s account be established (this is a measure normally used by IIROC in connection with futures trading accounts).
35 The OTC Contracts will be offered in compliance with the applicable IIROC Rules and other IIROC Acceptable Practices.
36 IIROC limits the underlying instruments in respect of which a member firm may offer OTC Contracts since only certain securities are eligible for reduced margin rates. For example, underlying equity securities must be listed or quoted on certain “recognized exchanges” (as that term is defined in the IIROC Rules) such as the Toronto Stock Exchange or the New York Stock Exchange. The purpose of these limits is to ensure that OTC Contracts offered in Canada will only be available in respect of underlying instruments that are traded in well-regulated markets, in significant enough volumes and with adequate publicly available information, so that clients can form a sufficient understanding of the exposure represented by a given OTC Contract.
37 The IIROC Rules prohibit the margining of OTC Contracts where the underlying instrument is a synthetic product (single U.S. sector or “mini-indices”). For example, Sector CFDs (i.e., basket of equities for the financial institutions industry) may be offered to non-Canadian clients; however, this is not permissible under the IIROC Rules.
38 IIROC members seeking to trade OTC Contracts are generally precluded, by virtue of the nature of the contracts, from distributing CFDs that confer the right or obligation to acquire or deliver the underlying security, instrument, or asset itself (convertible CFDs), or that confer any other rights of shareholders of the underlying security, instrument or asset, such as voting rights.
39 The Requested Relief, if granted, would (and the Existing Relief does) substantially harmonize the position of the regulators in the Applicable Jurisdictions on the offering of OTC Contracts to investors in the Applicable Jurisdictions with how those products are offered to investors in Quebec under the QDA. The QDA provides a legislative framework to govern derivatives activities within Quebec. Among other things, the QDA requires such products to be offered to investors through an IIROC member and the distribution of a standardized risk disclosure document rather than a prospectus in order to distribute such contracts to investors resident in Quebec.
40 The Requested Relief, if granted, would be (and the Existing Relief is) consistent with the guidelines articulated by staff of the Principal Regulator in OSC SN 91-702. OSC SN 91-702 provides guidance with regard to distributions of CFDs, foreign exchange contracts and similar OTC derivative products to investors in the Jurisdiction.
41 The Principal Regulator has previously recognized that the prospectus requirement may not be well suited for the distribution of certain derivative products to investors in the Jurisdiction, and that alternative requirements, including requirements based on clear and plain language risk disclosure, may be better suited for certain derivatives.
42 In Ontario, both OSC Rule 91-502 and OSC Rule 91-503 Trades in Commodity Futures Contracts and Commodity Futures Options Entered into on Commodity Futures Exchanges Situated Outside of Ontario (OSC Rule 91-503) provide for a prospectus exemption for trading derivative products to clients. The Requested Relief would be consistent with the principles and requirements of OSC Rule 91-502, OSC Rule 91-503 and Proposed Rule 91-504.
43 The Filer has also submitted that the Requested Relief, if granted, would (and the Existing Relief does) harmonize the Principal Regulator's position on the offering of CFDs with certain other foreign jurisdictions that have concluded that a clear, plain language risk disclosure document is appropriate for retail clients seeking to trade in foreign exchange contracts.
44 The Filer is of the view that requiring compliance with the prospectus requirement in order to enter into OTC Contracts with retail clients would not be appropriate since the disclosure of a great deal of the information required under a prospectus and under the reporting issuer regime is not material to a client seeking to enter into an OTC Transaction. The information to be given to such a client should principally focus on enhancing the client’s appreciation of product risk including counterparty risk. In addition, most OTC Contracts are of short duration (positions are generally opened and closed on the same day and are settled when positions are closed).
45 The Filer is regulated by IIROC, which has a robust compliance regime including specific requirements to address market, capital and operational risks.
46 The Filer submits that the regulatory regimes developed by the AMF and IIROC for OTC Contracts adequately address issues relating to the potential risk to the clients of the Filer acting as counterparty. In view of these regulatory regimes, investors would receive little or no additional benefit from requiring the Filer to also comply with the prospectus requirement.
47 The Requested Relief in respect of each Applicable Jurisdiction is conditional on the Filer being registered as an investment dealer with the Commission in such Applicable Jurisdiction and maintaining its membership with IIROC and that all OTC Transactions be conducted pursuant to IIROC Rules and in accordance with IIROC Acceptable Practices.
Decision
The Principal Regulator is satisfied that the test set out in the Legislation to make the Decision is met.
The Decision of the Principal Regulator is that the Requested Relief is granted provided that:
(a) all OTC Contracts traded with residents in the Applicable Jurisdictions shall be executed through the Filer;
(b) with respect to residents of an Applicable Jurisdiction, the Filer remains registered as a dealer in the category of investment dealer with the Principal Regulator and each securities regulatory authority in such Applicable Jurisdiction and a member of IIROC;
(c) all transactions in OTC Contracts with clients resident in the Applicable Jurisdictions shall be conducted pursuant to the IIROC Rules imposed on IIROC members seeking to trade in OTC Contracts and in accordance with IIROC Acceptable Practices, as amended from time to time;
(d) all transactions in OTC Contracts with clients resident in the Applicable Jurisdictions be conducted pursuant to the rules and regulations of the QDA and the AMF, as amended from time to time, unless and to the extent there is a conflict between (i) the rules and regulations of the QDA and the AMF, and (ii) the requirements of the securities laws of the Applicable Jurisdictions, the IIROC Rules and the IIROC Acceptable Practices, in which case the latter shall prevail;
(e) prior to a client first entering into a transaction in an OTC Contract, the Filer has provided to the client the Risk Disclosure Document and has delivered, or has previously delivered, a copy of the Risk Disclosure Document provided to that client to the Principal Regulator;
(f) prior to the client’s first transaction in an OTC Contract and as part of the account opening process, the Filer has obtained a written or electronic acknowledgement from the client, as described in paragraph 30, confirming that the client has received, read and understood the Risk Disclosure Document;
(g) the Filer has furnished to the Principal Regulator the name and principal occupation of its officers and directors, together with either the personal information form and authorization of indirect collection, use and disclosure of personal information provided for in National Instrument 41-101 General Prospectus Requirements or the registration information form for an individual provided for in Form 33-109F4 of National Instrument 33-109 Registration Information completed by any officer or director;
(h) the Filer shall promptly inform the Principal Regulator in writing of any material change affecting the Filer, being any change in the business, activities, operations or financial results or condition of Filer that may reasonably be perceived by a counterparty to a derivative to be material;
(i) the Filer shall promptly inform the Principal Regulator in writing if a self-regulatory organization or any other regulatory authority or organization initiates proceedings or renders a judgment related to disciplinary matters against the Filer concerning the conduct of activities with respect to OTC Contracts;
(j) within 90 days following the end of its financial year, the Filer shall submit to IIROC, and to the Principal Regulator upon request, the audited annual financial statements of the Filer; and
(k) the Requested Relief shall immediately expire upon the earliest of
(i) four years from the date that this Decision is issued;
(ii) in respect of a subject Applicable Jurisdiction or Quebec, the issuance of an order or decision by a court, the Commission in such Applicable Jurisdiction, the AMF (in respect of Quebec) or other similar regulatory body that suspends or terminates the ability of the Filer to offer CFDs or other OTC Contracts to clients in such Applicable Jurisdiction or Quebec; and
(iii) with respect to an Applicable Jurisdiction, the coming into force of legislation or a rule by any Commission regarding the distribution of OTC derivatives to investors in such Applicable Jurisdiction,
(the Interim Period).
It is further the Decision of the Principal Regulator that the Existing Relief is hereby revoked.
“Deborah Leckman”
Ontario Securities Commission
“Robert P. Hutchison”
Ontario Securities Commission