National Bank Financial Ltd. - MRRS Decision
Headnote
MRRS - Relief granted, subject to certain conditions,from the requirement of section 36 of the Act that a registrantdeliver trade confirmations to clients of its wrap account program.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.,s. 36.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,SASKATCHEWAN,
MANITOBA, ONTARIO, NOVA SCOTIA,
NEWFOUNDLAND AND LABRADOR,PRINCE EDWARD ISLAND,
YUKON TERRITORY, NORTHWESTTERRITORIES AND
NUNAVUT TERRITORIES
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
NATIONAL BANK FINANCIAL INC.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in BritishColumbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia,Newfoundland and Labrador, Prince Edward Island, Yukon Territory,Northwest Territories and Nunavut Territories (the "Jurisdictions")has received an application from National Bank Financial Ltd.("National Bank") for a decision under the securitieslegislation of the Jurisdictions (the "Legislation"),that:
(a) except in Ontario, the requirement containedin the Legislation to be registered as an adviser (the "RegistrationRequirement) does not apply to certain portfolio managers(the "Advisers") who provide portfolio managementservices for the benefit of National Bank's clients (the "clients")participating in wrap account programs created by NationalBank, including its Ambassador Portfolio Service (collectively,the "Programs"); and
(b) the requirement contained in the Legislationthat a registered dealer send a written confirmation of thetrade setting out certain information specified in the Legislation(the "Confirmation Requirement"), not apply to NationalBank for confirmation to clients with respect to transactionsconducted under the Programs;
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the British Columbia Securities Commission is the principalregulator for this application;
AND WHEREAS, unless otherwise defined,the terms herein have the meaning set out in National Instrument14-101 or in Quebec Securities Commission Notice 14-101;
AND WHEREAS National Bank has representedto the Decision Makers that:
1. it is an investment dealer registered underthe Legislation, and is a member of the Investment DealersAssociation;
2. it offers its clients a discretionary assetmanagement service through which clients (such participatingclients of National Bank, "clients") may investin a portfolio of securities based on the investment adviceof and management by Advisers through arrangements NationalBank has made with those Advisers;
3. a client must:
(a) open an account (an "Account")that is separate from any other accounts with National Bank;
(b) enter into a written portfolio servicemanagement agreement or a similar agreement with NationalBank (a "PSMA"); and
(c) provide National Bank with informationregarding the client's investment objectives, preferencesand restrictions so that National Bank can develop, alongwith the client, a written investment policy statement andinvestor profile;
4. it will assist the client in selectingone or more Advisers to manage all or a portion of the assetsin the Account according to:
(a) the client's investor profile; and
(b) the investment style, expertise andtrack record of the Adviser;
5. under the PSMA:
(a) the client will grant full discretionaryauthority to National Bank over the assets in the Account,including the right to delegate management over all or aportion of the assets in the Account to an Adviser;
(b) the client will acknowledge and agreethat securities transactions in the Account by NationalBank or the Advisers will generally be executed throughNational Bank or one of its affiliates;
(c) an affiliate of National Bank or anotherrecognized securities custodian will act as custodian ofthe securities and other assets in the Account;
(d) the client will agree to pay a fee toNational Bank based on the market value of the Account atthe end of each quarterly period, which fees will includeall custodial, transaction and brokerage fees and commissionsand professional or other fees of the Advisers; and
(e) unless otherwise requested, the clientwill waive receipt of trade confirmations as required underapplicable Legislation;
6. it will provide the client with a statementof account with information required under the applicableLegislation, including a list of all transactions during theperiod and a statement of portfolio at the end of such period;
7. it will provide trade confirmations asrequired under the applicable Legislation to the Adviser,unless waived by the client;
8. with respect to any Adviser which is notappropriately registered as a portfolio manager in the ApplicableJurisdiction to provide the services contemplated under thePrograms to a client, National Bank will agree under the PSMAto be responsible for any loss that arises out of the failureof an Adviser:
(a) to exercise the powers and dischargethe duties of its office honestly, in good faith and inthe best interests of National Bank and the client of NationalBank for whose benefit the investment advice is or portfoliomanagement services are to be provided, or
(b) to exercise the degree of care, diligenceand skill that a reasonably prudent person would exercisein the circumstances,
and acknowledges that it cannot be relievedby its clients from this responsibility (collectively, the"Assumed Obligations");
9. it will enter into a written master portfoliomanagement services agreement or similar agreement (the "MPMSA")with each Adviser, setting out the terms and conditions governingthe relationship between National Bank, the Adviser and theclient and the rights, obligations and duties of the parties;
10. under the MPMSA,:
(a) the Adviser will assist National Bankby managing the client's assets that are designated to thatAdviser, based on the client's investor profile and investmentpolicy statement;
(b) the Adviser will communicate appropriatetrading instructions to National Bank (including explainingthe rationale for the transactions in the Account), maintainrecords in respect of each Account and otherwise participateor assist National Bank in providing periodic performancereports or other related information to the clients;
11. a client must obtain all advice and informationand give all instructions and directions through NationalBank;
12. if there is any direct contact betweenthe client and the Adviser, the registered representativeof National Bank responsible for the client's account willat all times be present, either in person or by telephone;
13. each Adviser will be licensed, qualifiedor registered as a portfolio manager or investment counselin either the United States, the United Kingdom, one of theJurisdictions or elsewhere to provide discretionary investmentcounselling and portfolio management services for clientsor accounts such as those contemplated under the Programs;and
14. Advisers who are not otherwise registeredin Ontario will not be required to register as advisers underthe Securities Act (Ontario) as they can rely on theexemption from registration in section 7.3 of Ontario Rule35-502 Non-Resident Advisers.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that:
(a) except in Ontario, the Registration Requirementdoes not apply to the Advisers who provide investment counsellingand portfolio management services for the benefit of clientsin connection with the Programs, provided that:
(i) the obligations and duties of each ofthe Advisers is set out in a written agreement with NationalBank;
(ii) National Bank contractually agreeswith each client that it will be responsible for the AssumedObligations;
(iii) National Bank is not relieved of theAssumed Obligations by clients;
(iv) National Bank is registered under theLegislation as an investment dealer in the Jurisdictionsin which clients are resident; and
(v) in Manitoba, the relief is availableonly to Advisers who are not registered in any Canadianjurisdiction; and
(b) the Confirmation Requirement shall notapply to National Bank in respect of a client's Account inwhich National Bank acts as principal or agent in connectionwith the associated trade.
June 11, 2003.
"Brenda Leong"