Central 1 Credit Union
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief granted to a central credit union from the dealer and adviser registration requirements and the prospectus requirement in respect of the issuance of evidences of deposit and shares to its members -- the filer is a central credit union incorporated under the laws of British Columbia and subject to regulation and supervision by the Financial Institutions Commission of British Columbia -- the filer cannot rely on the available exclusions and exemptions under securities legislation in jurisdictions outside of British Columbia because it is not the type of enumerated credit unions -- relief granted on terms and conditions and a five-year sunset clause.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c.S.5, as am., ss. 25, 53 and 74.
March 13, 2019
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 CENTRAL 1 CREDIT UNION (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 (the Legislation) exempting the Filer from the dealer registration requirement, the adviser registration requirement and the prospectus requirement contained in the Legislation in respect of the issuance by the Filer of evidences of deposit and shares of the Filer to its members and auxiliary members (as such terms are defined below) in the ordinary course of the Filer's business as a central credit union (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Nunavut, the Yukon Territory and the Northwest Territories (collectively with the Jurisdiction, the 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.
For the purposes of this decision, the following terms have the following meanings:
(a) auxiliary member has the meaning set out in the first sentence of paragraph 12 of this decision.
(b) CCAA means the Cooperative Credit Associations Act (Canada).
(c) central credit union means a credit union in which membership is restricted to credit unions, other corporations, public bodies or the Crown in right of Canada or British Columbia or in any other right, or the equivalent organizations under the laws of the Jurisdictions.
(d) CUCPA means the Credit Unions and Caisses Populaires Act, 1994 (Ontario).
(e) CUIA means the Credit Union Incorporation Act (British Columbia).
(f) FIA means the Financial Institutions Act (British Columbia).
(g) FICOM means the Financial Institutions Commission of British Columbia.
(h) member means an organization that:
(i) is a credit union, cooperative association or other incorporated organization,
(ii) is permitted to be a member of the Filer under the Filer's Constitution and Rules and the CUIA,
(iii) has been admitted to membership of the Filer, and
(iv) has had its name entered in the Filer's register of members,
but does not include a person who is an auxiliary member.
(i) OSFI means the federal Office of the Superintendent of Financial Institutions.
Representations
This decision is based on the following facts represented by the Filer:
1. The Filer is a central credit union incorporated under the CUIA. The Filer's principal and head office is located in Vancouver, British Columbia.
2. The Filer provides a range of services including wholesale financial products, trust services, payment processing solutions and direct banking technologies and services primarily to credit unions, cooperative associations (and similar organizations) and other incorporated organizations located in any Canadian jurisdiction. The Filer is also the primary liquidity manager, payments provider and trade association for its member credit unions located in British Columbia and Ontario.
3. The Filer is a reporting issuer in British Columbia, Alberta, Saskatchewan, Manitoba and Ontario. None of the Filer's securities are posted or traded on any marketplace as defined in National Instrument 21-101 Marketplace Operation. The Filer is not in default of securities legislation in any jurisdiction of Canada, except in relation to the matters described below in paragraphs 16 and 19.
4. The primary regulator for the Filer for non-securities-related matters is FICOM. The principal regulator of the Filer for securities-related matters is ordinarily the British Columbia Securities Commission. However, for the purposes of this application, the Filer has determined that it does not require the Exemption Sought in British Columbia and has therefore selected the Ontario Securities Commission as its principal regulator on the grounds that Ontario is the jurisdiction in respect of which it has the most significant connection after British Columbia.
5. Until January 15, 2017, the Filer was also regulated by OSFI as an "association" governed by the CCAA. As a result of amendments to the CCAA effective January 15, 2017, the CCAA no longer applies to the Filer and the Filer ceased to be regulated by OSFI. The Filer's business and activities have not changed as a result of these amendments to the CCAA effective January 15, 2017.
6. The Filer is not registered as an extra-provincial credit union under the CUCPA and is not subject to the direct oversight of the Financial Services Commission of Ontario. The Filer has entered into an undertaking to share information with the Superintendent of Financial Services, Ontario and the Deposit Insurance Corporation of Ontario. The Filer has entered into a memorandum of understanding with the Deposit Insurance Corporation of Ontario with respect to, among other things, information sharing.
7. As a central credit union incorporated under the CUIA and subject to the oversight of FICOM, the Filer is subject to a comprehensive scheme of prudential regulation and supervision that the Filer believes is comparable to the regulatory framework governing central credit unions or equivalent organizations organized under applicable legislation in other Canadian jurisdictions and the supervision provided by applicable regulators in such jurisdictions. In particular:
(a) The Filer is subject to regulation pursuant to the CUIA and FIA, and applicable regulations under such legislation, all of which are administered by FICOM.
(b) The CUIA sets forth a scheme of corporate law requirements applicable to credit unions incorporated under it, such as the Filer, as well as requirements relating to various matters, including membership, governance, business authorization, filings, auditors and audit committees, and hearings and appeals before FICOM. Pursuant to the CUIA, FICOM has various powers of supervision including the right to consent to various transactions, the right to require certain transactions under certain circumstances and the right to consent to changes to a credit union's constitution and rules.
(c) The FIA and its regulations set forth requirements applicable to credit unions incorporated under the CUIA, such as the Filer, including business authorizations, corporate governance, capital and liquidity requirements and requirements relating to deposits and borrowing.
(d) FICOM has various powers of supervision under the FIA including for example the power to order financial institutions to acquire additional liquid assets or increase their capital base, powers to supervise the conduct of auditors and generally broad powers of examination, audits and inspection and powers of sanction. The superintendent appointed under the FIA must periodically conduction an examination of the affairs of every financial institution subject to the FIA. The FIA states that for the purposes of administration and enforcement of the FIA, the superintendent appointed under the FIA and its investigators examiners or other persons in accordance with the FIA may act outside of British Columbia as if acting inside it.
(e) In February 2014, FICOM identified the Filer as a domestic systemically important financial institution (D-SIFI). As a D-SIFI, the Filer is subject to additional regulatory and supervisory requirements determined by FICOM addressing matters such as capital requirements and regulatory reporting.
8. The Constitution and Rules of the Filer (the Rules) restrict membership in the Filer to incorporated organizations. The Filer's members are primarily credit unions and other sophisticated institutions. In particular, the Constitution and Rules of the Filer restrict membership in the Filer to incorporated organizations that qualify as Class A members, Class B members or Class C members in accordance with the requirements below:
(a) Class A members are (i) credit unions incorporated under the CUIA or the former Credit Unions Act (British Columbia) or the CUCPA, incorporated under the laws of any other Canadian jurisdiction and licensed or registered under those laws to carry on business as a credit union or caisse populaire in that jurisdiction, or incorporated as a federal credit union under the laws of Canada, or (ii) credit unions incorporated under the laws of another jurisdiction as a central credit union or as a corporation which, in the opinion of the board of directors of the Filer (the Board of Directors), conducts its operations in a manner similar to a central credit union incorporated under the CUIA or the former Credit Unions Act (British Columbia), and in all cases whose application for membership has been approved as provided in the Rules;
(b) Class B members are cooperative associations incorporated under the Cooperative Association Act (British Columbia) or cooperatives incorporated under other legislation in British Columbia or under the laws of another Canadian jurisdiction which, in the opinion of the Board of Directors, conducts its operations on a cooperative basis and is designated as a cooperative association by the Board of Directors for the purposes of membership in the Filer; and
(c) Class C members are incorporated organizations whose application for membership has been approved as provided in the Rules, other than a Class A member or a Class B member; in general terms, Class C members consist of organizations that do not qualify as (or do not wish to be, or are otherwise not approved as) Class A members or Class B members but wish to maintain deposits with the Filer or that wish to become members of the Filer for other reasons.
The Filer is not permitted to have members that are individuals. The classes of shares of the Filer are set out in its Rules. Amendments to the Rules must be approved by members and FICOM.
9. The authorized share capital of the Filer consists of six classes of shares (Shares), as follows:
(a) Class A shares with a par value of $1.00 per Class A share, which may only be issued to and held by Class A members;
(b) Class B shares with a par value of $1.00 per Class B share, which may only be issued to and held by Class B members;
(c) Class C shares with a par value of $1.00 per Class C share, which may only be issued to and held by Class C members;
(d) Class D shares with a par value of $1.00 per Class D share, which may be issued to and held by Class A members, Class B members and Class C members;
(e) Class E shares with a par value of $0.01 per Class E share, which may only be issued to and held by Class A members or entities that are wholly-owned by the Filer; and
(f) Class F shares with a par value of $1.00 which may be held by those Class A members that have assets on deposit in the Filer's mandatory liquidity pool.
10. A summary of certain rights attributable to the Shares is as follows:
(a) Unless the Filer's Rules otherwise provide, a Class A member shall be entitled to vote on any matter. Class B members and Class C members have limited voting rights. A Class B member shall be entitled to vote only with respect to matters specified in the Rules and with respect to those matters which the directors in their discretion determine relate to Class B members. The Class C members shall be entitled to vote only with respect to those matters which the directors in their discretion determine relate to Class C members. Except as required by applicable laws, there are no voting rights associated with Class D, E and F shares.
(b) Except as otherwise provided in the Rules, each delegate representing a Class A member shall be entitled to cast one vote for each Class A share held by that member. A delegate representing a Class B member may cast one vote for each Class B share held by that member on any matter on which a Class B member is entitled to vote. A delegate representing a Class C member may cast one vote for each Class C share held by that member on any matter on which a Class C member is entitled to vote. Notwithstanding the forgoing, if a matter to be voted on relates to the trade associational operations of the Filer, each Class A member shall be entitled to cast one vote for each 100 members of the Class A member. Subject to the Rules, dues to be assessed in accordance with the Rules shall be determined by majority vote of those Class A members entitled to vote on the resolution the basis of one vote for each 100 members of the Class A member, in respect of certain dues resolutions, and on the base of one vote for each 1,000 members of the Class A member, in respect of certain dues resolutions.
(c) Directors are elected or appointed, in accordance with the Rules, only by Class A members. Certain directors may be nominated by certain large Class A members pursuant to the Rules. Certain matters (including the election of certain directors) are either on the basis of one vote per applicable member or on the basis of one vote per share held by the applicable members or both.
(d) Subject to certain restrictions contained in the CUIA and the Rules, all Shares of the Filer are redeemable by the Filer, at its option and on the approval of the Board of Directors. Class A, B, C, D, E and F shares may not be redeemed by the holder except with the consent of the Board of Directors.
(e) The holders of each class of Shares are entitled to receive dividends as declared from time to time.
(f) Shares are transferable only with the consent of the directors to entities that are permitted to hold such shares under the Rules (being members and/or entities that are wholly-owned by the Filer).
11. A member that holds Shares retains membership in the Filer so long as the membership of that holder is not terminated in accordance with the Rules.
12. If a person ceases to be a member of the Filer, that person may still continue to hold its Shares, but under the Rules and the provisions of the CUIA that person becomes an auxiliary member of the Filer. The Rules provide that until the Filer redeems all of the Shares of an auxiliary member, the auxiliary member retains the rights, privileges and obligations of membership of that class of members to which the auxiliary member belonged immediately prior to becoming an auxiliary member.
13. As of December 31, 2018, the Filer had a total of 233 members, of which approximately 152 were Class A members or Class B members (credit unions and cooperative associations or similar organizations), and 81 were Class C members (other types of incorporated organizations). As of December 31, 2018, the Filer did not have any auxiliary members.
Issuance of evidences of deposits
14. One of the Filer's primary functions is to take deposits from its members for various purposes, including to assist certain of its members that are credit unions in meeting statutory liquidity obligations those members have themselves under applicable law, to provide a vehicle through which members can deposit excess capital they may have from time to time, and in connection with various services provided by the Filer to its members. The Filer accepts deposits from members on a daily basis. Members are or may be located in any Canadian jurisdiction.
15. In British Columbia, evidences of deposit issued by the Filer are excluded from the definition of "security" under the Securities Act (British Columbia) as evidence of a deposit of a savings institution within the meaning of the Securities Act (British Columbia). Although the definition of "security" under the Legislation and applicable securities legislation in the Jurisdictions specifically excludes from its scope evidences of deposits issued by certain banks, credit unions and other financial institutions, evidences of deposit issued by the Filer generally do not qualify for these exclusions because the exclusions in relation to credit unions (or similar entities) in each local jurisdiction (other than Prince Edward Island, Nunavut, the Yukon and the Northwest Territories) generally apply only to credit unions subject to federal credit union legislation or incorporated under the laws of the applicable local jurisdiction, and are not available to a credit union such as the Filer that is incorporated under the laws of British Columbia.
16. Accordingly, except in British Columbia, any evidence of a deposit issued by the Filer is a "security" and, in the absence of the Exemption Sought, each issuance must comply with the prospectus requirements and dealer registration requirements under the Legislation and applicable securities legislation in each Jurisdiction where the issuance occurs. Through inadvertence, the Filer has not previously taken steps to comply with such requirements.
Issuance of shares to members
17. Generally, the Filer may only accept deposits from its members. Each customer that wishes to deposit money with the Filer (or to become a member for any other reason) receives Shares in connection with becoming a member. As noted, members are or may be located in any Canadian jurisdiction.
18. In British Columbia, the issuance of Shares by the Filer to its members is exempt from the prospectus requirements and dealer registration requirements under the Securities Act (British Columbia) pursuant to a blanket exemption contained in BC Instrument 45-531 Exemptions for shares or deposits of a credit union which provides a prospectus exemption and a dealer registration exemption for distributions of shares of a credit union authorized to carry on business under the FIA. Although similar exemptions from the prospectus requirements and dealer registration requirements under the Legislation and applicable securities legislation in each of the Jurisdictions (other than Québec and the Yukon) are available for the issuance of securities of certain credit unions to their members, these exemptions are not available to the Filer because these exemptions are generally only available in a local jurisdiction to credit unions subject to federal credit union legislation or incorporated under the laws of the applicable local jurisdiction, and are not available to a credit union such as the Filer that is incorporated under the laws of another jurisdiction.
19. In the absence of the Exemption Sought, each distribution of a Share to a member must comply with the prospectus requirements and dealer registration requirements under the Legislation and applicable securities legislation in each Jurisdiction where members reside. Through inadvertence, the Filer has not previously taken steps to comply with such requirements.
Over-the-counter derivatives activities
20. The Filer carries on certain over-the-counter (OTC) derivatives activities primarily as a service to its members to hedge their business risks (including balance sheet and mortgage exposures), and to hedge the Filer's exposure under outstanding derivatives transactions and its own business risk. The Filer's understanding is that its members enter into these OTC derivative transactions for the purposes of hedging their business risks and not for speculative purposes. The Filer also offers OTC derivative services to other entities (primarily financial institutions) who have a need for such OTC derivative services and wish to engage the Filer to provide these services.
21. All OTC derivatives activities that are conducted by the Filer in Ontario are with counterparties that qualify as "permitted clients" as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103).
22. The Filer participates in these transactions as counterparty and therefore earns profits and losses on these transactions at market levels; however, no separate compensation is received.
23. The OTC derivatives that the Filer enters into include interest rate swaps, interest rate options, FX forwards, FX spot, FX swaps, FX options, bond forwards, and repos (repurchase transactions), and index options.
24. Other than index options where the underlying interest is an equity index, the Filer does not enter into OTC derivatives transactions where the underlying interest or reference asset includes an equity security (i.e. an equity option).
25. As the derivatives entered into between the Filer and its members and other counterparties are OTC derivatives and not listed derivatives; the Legislation and applicable securities legislation in each of the other jurisdictions, including the Québec Derivatives Act and NI 31-103, are the applicable legislation.
26. The Filer has not pursued relief from the dealer registration requirement in connection with these activities for the following reasons:
(a) The Filer believes there is a reasonable argument that, under the current requirements of Ontario securities law, its trading activities in relation to OTC derivatives should not be considered to constitute being in the business of trading in securities.
(b) The Filer's trading activities in relation to OTC derivatives are generally limited to transactions where the underlying instruments are index options, interest rate swaps, interest rate options, FX forwards, FX spots, FX swaps, FX options, bond forwards and repos (repurchase transactions). The counterparties that are resident in Ontario all qualify as "permitted clients" as defined in NI 31-103.
(c) The Filer does not enter into OTC derivatives transactions with members or other counterparties where the underlying interest or reference asset includes individual equity securities.
(d) The guidance in OSC Staff Notice 91-702 Offering of Contracts for Difference and Foreign Exchange Contracts to Investors in Ontario (OSC Staff Notice 91-702) expressly states the following under the heading "1. Purpose": "This notice is not intended to address direct or intermediated trading between institutions. We note that Canadian financial institutions are exempt from registration requirements under the Securities Act (Ontario)." The Filer and the counterparties domiciled in Ontario are non-individual permitted clients and therefore could reasonably conclude that OSC Staff Notice 91-702 did not apply.
(e) The Legislation provides for an exemption from registration for (i) an association to which the CCAA applies or a central cooperative credit society for which an order has been made under subsection 473 (1) of the CCAA (which prior to the repeal of Part 16 in 2014 included provincial centrals); and (ii) a credit union that is authorized by a statute of Canada or Ontario to carry on business in Canada or Ontario. The principle that provincially-based credit unions are exempt from registration is further demonstrated in the exemption proposed by the Ontario Securities Commission in Proposed National Instrument 93-102 Derivatives: Registration for "Canadian financial institutions", the definition of which includes a "credit union authorized by an enactment of Canada or a jurisdiction of Canada".
(f) In each of British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia and Québec (collectively, the OTC Exemption Jurisdictions), persons and companies who engage in OTC derivative transactions are generally exempt from registration and certain disclosure requirements, pursuant to applicable exemptions (the OTC Derivative Exemptions), when they are negotiated, bi-lateral contracts that are entered into between sophisticated non-retail parties referred to as "qualified parties" in British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick and Nova Scotia, and as "accredited counterparties" in Québec.
(g) The corresponding OTC Derivative Exemptions are as follows:
British Columbia
Blanket Order 91-501 Over-the-Counter Derivatives
Alberta
ASC Blanket Order 91-507 Over-the-Counter Trades in Derivatives
Saskatchewan
General Order 91-908 Over-the-Counter Derivatives
Manitoba
Blanket Order 91-501 Over-the-Counter Trades in Derivatives
Québec
Section 7 of the Québec Derivatives Act
New Brunswick
Local Rule 91-501 Derivatives
Nova Scotia
Blanket Order 91-501 Over-the-Counter Trades in Derivatives
27. The Filer acknowledges that it may be required to comply with or seek relief from the dealer registration requirement in the Legislation in relation to trading in OTC derivatives upon the coming into force of certain amendments to the Legislation and similar requirements in the legislation of the other Jurisdictions. The Filer acknowledges that the exemption from the dealer registration requirement and adviser registration requirement set out in this decision do not apply to the Filer in connection with the Filer's activities in relation to trading or advising others in relation to OTC derivatives.
28. The Filer is not in default of its obligation to report derivatives data in respect of its transactions in OTC derivatives with a local counterparty under the following:
(a) in Alberta, British Columbia, New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Saskatchewan and Yukon, Multilateral Instrument 96-101 Trade Repositories and Derivatives Data Reporting;
(b) in Manitoba, MSC Rule 91-507 Trade Repositories and Derivatives Data Reporting;
(c) in Ontario, OSC Rule 91-507 Trade Repositories and Derivatives Data Reporting; and
(d) in Québec, Regulation 91-507 respecting Trade Repositories and Derivatives Data Reporting.
Application of dealer and adviser registration requirements
29. Although the Filer's principal business is that of a central credit union and the issuance of evidences of deposit and Shares is regarded as incidental to that business, the activities of the Filer in relation to the issuance of evidences of deposit and Shares together with certain of its other activities carried out in conjunction with its business as a credit union, may be sufficient to trigger the application of the dealer and the adviser registration requirements in relation to such activities.
30. In Ontario, the general exemption from the registration requirements that is available under the Legislation to certain credit unions is not available to the Filer because the Filer is not a credit union of the type contemplated by that exemption. Although exemptions from the dealer registration requirements under the Legislation and applicable securities legislation in each of the Jurisdictions (other than Québec and the Yukon) are available for the issuance of evidences of deposits and other securities of certain credit unions to their members, these exemptions are not available to the Filer because these exemptions are generally only available in a local jurisdiction to credit unions subject to federal credit union legislation or incorporated under the laws of the applicable local jurisdiction, and are not available to a credit union such as the Filer that is incorporated under the laws of another jurisdiction.
31. In the absence of the Exemption Sought, the Filer may be subject to the dealer and adviser registration requirements under the Legislation and applicable securities legislation in each Jurisdiction in relation to the issuance of evidences of deposit and Shares and be required to obtain registration as a dealer or to sell its evidences of deposits and Shares through registered dealers.
32. The Filer carries on a similar business to other central credit unions (or equivalent organizations) in the Jurisdictions, is subject to the same or more onerous controls (including capital, liquidity and investor protection measures) as central credit unions or equivalent organizations and other credit unions in the Jurisdictions, and as such, should be afforded the same treatment as other central credit unions (or equivalent organizations) and credit unions in the Jurisdictions in relation to its issuance of evidences of deposits and Shares.
33. British Columbia laws applicable to the Filer do not prohibit it to carry on its business outside of British Columbia.
34. Other than as described in this decision or in compliance with securities laws, the Filer will not trade in any securities or derivatives other than issuances of evidences of deposits and Shares to its members and auxiliary members and the derivatives transactions described above.
Books and Records
35. As a reporting issuer, the Filer is, and, should the Exemption Sought be granted, as a person or company exempted from the requirement to be registered under the Legislation, the Filer will be a "market participant". For the purposes of the Legislation, and as a market participant, the Filer is required 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 the Legislation.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that:
(a) at the relevant time activities are engaged in:
(i) the Filer continues to be a central credit union incorporated under the CUIA;
(ii) the Filer continues to be subject to regulation and supervision by FICOM;
(iii) the Filer limits its activities to only those activities not prohibited by its governing legislation;
(iv) the Filer's membership remains restricted to incorporated organizations and the Filer only issues evidences of deposits and shares in reliance on this decision to members and auxiliary members;
(v) other than trades described in this decision or that are otherwise in compliance with securities laws, the Filer does not trade in any securities other than issuances of evidences of deposits and shares to its members and auxiliary members; and
(b) this decision shall terminate on the date that is five years after the date of this decision.