The Toronto-Dominion Bank and TD Bank, N.A.

January 15, 2018

MRRS Decision

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Exemption from registration and prospectus requirements – Foreign bank wants to offer certificates of deposit to Canadian residents – The applicant is a foreign bank subject to a compre-hensive scheme of regulation and supervision in its home jurisdiction comparable to Canadian regulatory require-ments governing Schedule I and II banks, including its proposed deposit taking activities with Canadian residents; the applicant’s Canadian deposit holders will be covered by the deposit insurance scheme in its home jurisdiction.

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., ss. 74(1), 25, 53.

TRANSLATION

January 15, 2018

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

QUÉBEC AND ONTARIO

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

THE TORONTO-DOMINION BANK AND

TD BANK, N.A.

(the Filers)

DECISION

Background

The securities regulatory authority or regulator in each of Québec and Ontario (the Dual Exemption Decision Maker) has received an application from TD Bank, N.A. for a decision under the securities legislation of those juris-dictions (the Dual Legislation) for an exemption for TD Bank, N.A. from the registration requirement and prospec-tus requirement in respect of deposit-taking activities of TD Bank, N.A. with Canadian residents (the Dual Exemption);

In addition, the securities regulatory authority or regulator in Québec (the Passport Decision Maker) has received an application from The Toronto-Dominion Bank (TD) for a decision under the securities legislation of Québec (the Passport Legislation) for an exemption for TD from the registration requirement in respect of the marketing and administrative activities of TD in furtherance of the deposit-taking activities of TD Bank, N.A. with Canadian residents (the Passport Exemption).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):

(a) the Autorité des marchés financiers is the principal regulator for this application;

(b) the Filers have provided notice that sub-section 4.7(1) of Regulation 11-102 respecting Passport System (Regulation 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut; and

(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):

(a) the Autorité des marchés financiers is the principal regulator for this application, and

(b) the Filers have provided notice that subsection 4.7(1) of R 11-102 is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nuna-vut.

Interpretation

Terms defined in Regulation 14-101 respecting Definitions and Regulation 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 Filers:

1. TD is a Schedule I Bank under the Bank Act (Canada) (Bank Act). It is subject to extensive governance expectations and regulatory oversight by, in particular, the Office of the Superintendent of Financial Institutions (OSFI). The head office of TD is located in Toronto, Ontario.

2. TD Bank, N.A., an indirect wholly-owned subsidiary of TD, is chartered as a national bank under the United States National Bank Act (National Bank Act). The head office of TD Bank, N.A. is located in Wilmington, Delaware, U.S.A.

3. TD Bank, N.A. carries on the business of banking in the United States. It offers a broad array of retail, small business and commercial banking products and services to more than nine million customers through its network of more than 1,200 locations throughout the Northeast and Mid-Atlantic United States, the District of Columbia, the Carolinas and Florida.

4. Considering that TD Bank, N.A. is chartered as a national bank under the National Bank Act, it is subject to regulation, examination and supervision by its chartering agency, the United States Office of the Comptroller of Currency (OCC). TD Bank, N.A. is also a member of the U.S. Federal Reserve System and subject to the regulatory oversight of the United States Federal Reserve Board (FRB), subject to certain limits, and, with respect to U.S. federal consumer financial laws, the United States Consumer Financial Protection Bureau (CFPB). Each of the OCC, FRB and CFPB is a regulatory authority created under the federal laws of the United States.

5. The OCC has been granted extensive dis-cretionary authority to assist it with the fulfillment of its supervisory and enforcement obligations. The OCC exercises such authority for the purpose of conducting periodic examinations of TD Bank, N.A.’s compliance with various regulatory requirements. With respect to compliance with U.S. federal consumer financial laws, the CFPB has exclusive supervisory authority, including examination authority, and primary enforcement authority over TD Bank, N.A.

6. TD Bank, N.A. is subject to continual, ongoing bank supervision and examination by the OCC, which is the primary federal regulator of TD Bank, N.A. TD Bank, N.A. is required to file periodic reports with the OCC, FRB and CFPB concerning its activities and financial condition and it must obtain the approval of the OCC before entering into certain transactions, such as mergers with, or acquisitions of, other financial institutions.

7. As a result, TD Bank, N.A. is subject to a compre-hensive scheme of regulation and supervision in the United States which the Filers believe is comparable to the regulatory framework governing Schedule I and II banks pursuant to the Bank Act and the supervisory responsibilities of OSFI.

8. In addition, the American dollar deposit-taking checking and savings accounts issued by TD Bank, N.A. (US Deposits) are insured by the United States Federal Deposit Insurance Corporation (FDIC) under the United States Federal Deposit Insurance Act, as amended, and the regulations promulgated thereunder, for up to US$250,000 at this time for each depositor (deposits owned by the same depositor may be combined for purposes of calculating this limit). The FDIC deposit insurance is guaranteed by the United States Treasury Department.

9. The Dual Exemption Decision Makers have previously granted relief to TD Bank, N.A. in respect of the offering of U.S. dollar denominated personal chequing accounts, negotiable order withdrawal accounts, savings accounts and certificates of deposit pursuant to an MRRS decision document dated July 27, 2006 (Previous Decision). TD Bank, N.A. proposes to expand the types of deposit products that may be offered from those contemplated by the Previous Decision.

10. TD Bank, N.A. markets the US Deposits in the United States. In addition to the current solicitation of personal deposits pursuant to the Previous Decision from residents of the jurisdictions, TD Bank, N.A. wishes to further solicit US Deposits from residents of the jurisdictions, including individuals, corporations and other entities. The US Deposits may also be marketed in Canada by TD to Canadian residents, including through TD’s Canadian bank branches and through TD’s internet sites.

11. In addition, TD employees may, to the extent permitted by the Bank Act, engage from time to time in certain clerical steps to facilitate the opening of the US Deposits in the United States by Canadian residents. It is currently anticipated that these clerical steps would be operational and administrative in nature and may include, for example, providing account documentation to Canadian residents who wish to open a US Deposit and providing information relating to such Canadian resident to TD Bank, N.A. to facilitate a discussion between TD Bank, N.A. and the Canadian resident, and, as agent of TD Bank, N.A., collecting information regarding and verifying the identity of Canadian residents who open US Deposits with TD Bank, N.A.

12. To the extent permitted by the Bank Act, TD may also in the future, engage in additional referral activities and may take a more proactive role in TD Bank N.A.’s relationship with its customers (Referral Arrangements). Any compensation received by TD or paid by TD to its employees in connection with such Referral Arrangements would be in accordance with TD’s bank policies and practices and would be disclosed to the Canadian resident (including the Referral Arrangement and the method of calculating any fees arising from such Referral Arrangement) prior to the opening of a US Deposit.

13. The offering of the US Deposits by TD Bank, N.A. to Canadian residents constitutes a distribution of securities within the meaning of the terms “security” and “dealer” under the Dual Legislation. As a result, TD Bank, N.A. will be subject to the registration requirement and prospectus requirement.

14. Although TD Bank, N.A. is an indirect wholly-owned subsidiary of TD and is engaged in the business of banking in the United States, it is not a Schedule I, II or III bank for purposes of the Bank Act. As a result, the Canadian bank exemptions under the Dual Legislation are not available to TD Bank, N.A. in these circumstances.

15. The US Deposits are, and will be, issued in compliance with applicable U.S. law, including applicable anti-money laundering and consumer protection legislation.

16. The US Deposits that are offered to Canadian residents do not contravene any federal or provincial deposit-taking legislation or any provision of the Bank Act.

17. The US Deposits that are offered to residents of Canada are subject to the same regulation and oversight by the OCC, FRB and CFPB as US Deposits that are offered to residents of the United States.

18. Other than in compliance with Canadian securities laws, TD Bank, N.A. will not trade in any securities other than US Deposits with or on behalf of persons or companies who are resident in Canada.

19. The Filers are not in default of securities legislation in any jurisdiction.

20. TD has not applied for the Passport Exemption in Ontario because it is exempt from the registration requirement pursuant to subsection 35.1(1) of the Securities Act (Ontario). As a result, TD will not be receiving a decision about the Passport Exemption from the securities regulatory authority or regulator in Ontario.

Decision

Each of the Dual Exemption Decision Makers is satisfied that the Dual Exemption meets the test set out in the Dual Legislation for the Dual Exemption Decision Maker to make the decision and the Passport Decision Maker is satisfied that the Passport Exemption meets the test set out in the Passport Legislation for the Passport Decision Maker to make the decision.

The decision of the Dual Exemption Decision Makers under the Dual Legislation is that the Dual Exemption is granted, provided that at the relevant time activities are engaged in:

(a) TD continues to be subject to regulation, examination and supervision by OSFI;

(b) TD Bank, N.A. continues to be subject to regulation, examination and supervision by the OCC and/or the FRB;

(c) the US Deposits are insured by the FDIC up to the applicable coverage limits under the FDIC rules, regardless of the residence or citizenship of the holder of a US Deposit;

(d) the details of the FDIC insurance coverage in respect of the US Deposits are disclosed to each prospective holder of a US Deposit prior to the opening of the US Deposit; and

(e) prior to the opening of the US Deposit or the making of an initial deposit therein, TD or TD Bank, N.A. informs the Canadian resident of any Referral Arrangements between TD Bank, N.A. and TD relating to the US Deposits, including the method of calculating the fees received by TD, if any, arising from such Referral Arrangement.

The decision of the Passport Decision Maker under the Passport Legislation is that the Passport Exemption is granted, provided that at the relevant time activities are engaged in:

(a) TD continues to be subject to regulation, examination and supervision by OSFI;

(b) TD Bank, N.A. continues to be subject to regulation, examination and supervision by the OCC and/or the FRB;

(c) the US Deposits are insured by the FDIC up to the applicable coverage limits under the FDIC rules, regardless of the residence or citizenship of the holder of a US Deposit;

(d) the details of the FDIC insurance coverage in respect of the US Deposits are disclosed to each prospective holder of a US Deposit prior to the opening of the US Deposit; and

“Gilles Leclerc”

Superintendent des marches de valeurs