such SROs should be subject to the oversight of the Regulator and should observe standards of fairness and confidentiality when exercising powers and delegated
responsibilities. Description Existing SROs
Canada’s regulatory system makes use of SROs.
IIROC and the MFDA are the two key SROs that operate across jurisdictions in Canada and are recognized as such in most jurisdictions (usually they are called the national SROs). They are responsible for regulating the business conduct and setting minimum prudential and other operational requirements for investment dealers and mutual fund dealers respectively. Both IIROC and the MFDA establish rules of eligibility, enforce binding rules of trading, business conduct and qualifications, and establish disciplinary rules and/or conduct disciplinary proceedings. Pursuant to NI 31-103 firms wanting to become an investment dealer or mutual fund dealer must mandatorily become an IIROC and MFDA member respectively and their representatives must be approved by and are subject to the jurisdiction of the applicable SRO—with the exception of MFD in Québec and their mutual fund dealers, which are under the direct supervision of the AMF (the firm) are under the CSF (the individuals).
IIROC is recognized by the securities regulators of Ontario, Québec, British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Newfoundland, Nova Scotia and Prince Edward Island, and operates in all Canadian jurisdictions. It regulates the business and trading conduct of investment dealers and the trading conduct of other participants on equity marketplaces.
The MFDA is recognized by the securities regulators of Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia and PEI, and operates in all Canadian jurisdictions, other than in Québec. It regulates the business conduct of mutual fund dealers. In Québec, mutual fund dealers are regulated directly by the AMF. Exchanges –other than the equity exchanges and NGX—are also recognized as SROs as they regulate trading by participants on their trading facilities and conduct market surveillance. The operations of the exchange SROs are mainly described in Principle 34. While the three equity exchanges and NGX also have self-regulatory responsibilities, they are not separately recognized as SROs. The three equity exchanges outsource to IIROC for market surveillance and surveillance of members compliance with trading rules. NGX conducts its own market surveillance.
In Québec, the CSF is responsible for discipline and regulating and ensuring compliance with continuous training of its members (individuals only) who work as mutual fund dealer representatives and scholarship plan dealer representatives in Québec and is limited to regulating in those areas. It is recognized directly under the Distribution Act (Québec) (Distribution Act) and not by the AMF.
Recognition
Applicable securities and derivatives legislation give the securities regulators the authority to recognize an entity as an SRO if it would be in the public interest. This is done by the issuance of a RO, which by law can include terms and conditions in addition to those contained in legislation.
An application for recognition must set out detailed information sufficient to clearly demonstrate that the entity can meet the criteria for recognition. These are whether the entity:
has an appropriate corporate governance structure: fair and meaningful representation on its governing body and committees of the governing body, in the context of the nature and structure of the SRO;
will regulate to serve the public interest;
is able to identify and manage conflicts of interest;
has fees that are equitable, fair and transparent and do not create unreasonable barriers to access;
has reasonable criteria to permit all persons who meet its membership criteria to become members;
is financially viable;
has sufficient financial, technological, human and other resources to perform its regulatory functions;
can ensure the capacity, integrity and security of its technology systems;
has rules that are comprehensive, designed to promote investor protection, provide appropriate discipline and do not impose an inappropriate burden on competition or innovation;
has a fair and transparent disciplinary process;
is able to and will share information and co-operate with securities
commissions (domestic and foreign) and other entities such as other SROs, exchanges, clearing agencies, law enforcement and investor protection or compensation funds.
In many cases the RO will establish terms and conditions to ensure compliance with the issues listed above. One example is reporting obligations for the SROs in connection
with their investigations and enforcement actions. Another example has been the RO of IIROC or the RO of the MFDA which require them to submit for approval any changes to their corporate governance structure.
Recognition Process
A recognition process starts with the applicant filing a draft application setting out its ability to meet the above identified recognition criteria and providing any necessary supporting documentation, including documents (such as corporate by-laws), organizational charts, board mandates and board committee charters and their composition, rule books and membership requirements, annual reports and financial statements, and reports of any independent reviews of its critical systems, including technology systems.
In the case of IIROC, which was formed by the merger of the Investment Dealers Association of Canada and Market Regulation Services Inc., CSA staff formed a
committee comprised of 14 persons from eight commissions to review the merger. The committee met with representatives of the IDA and RS and asked for supporting documentation and information it considered necessary to determine whether IIROC would meet the criteria for recognition.
The staff review concentrates primarily on those areas of greatest concern, which typically include corporate governance, management of conflicts of interest,
membership and access, the SRO’s ability to perform its regulatory functions and its financial viability. Staff will follow up with the applicant as necessary to seek
clarifications on the materials provided or to obtain additional information. Staff will also, as appropriate, discuss issues and seek input from senior leadership within the securities regulatory authority. In the case of IIROC, this review took approximately one year.
After all issues are resolved to the securities regulators’ satisfaction, the applicant is asked to file its application in final form. Once approved for publication, the comment period typically lasts 30 days. If significant comments are received or material issues are raised during the comment period, it may result in further revisions to the draft order and a second round of public consultations. When all comments and issues have been resolved to the satisfaction of the securities regulators, a final order recognizing the entity as an SRO will be issued.
Recognition of a SRO in Multiple Jurisdictions
Where an entity seeks to be recognized as an SRO in multiple jurisdictions, it will file applications with all the relevant securities regulators. Staff from different securities regulators would work closely to coordinate their reviews, by sharing issues, discussing resolution of those issues, harmonizing terms and conditions of recognition, and
developing and following a common timeline for processing of the application. For example, IIROC filed its recognition application with eight jurisdictions initially, and staff from these jurisdictions formed a committee to coordinate their reviews. Throughout the review process, the staff committee provided regular updates to the CSA Chairs to keep them informed of issues and their resolution.
In the case of the MX, the AMF held hearings over two days in November 2011 on the proposed acquisition of the TMX Group Inc. (the MX’s holding company) by Maple Group Acquisition Corporation. Apart from the public hearing, the process followed in recognizing the MX as an SRO is similar to that set out above. The AMF issued a RO on May 2, 2012.
Corporate Governance
The terms and conditions of recognition require IIROC and the MFDA to have a fair representation of members on its board of directors and board committees to ensure a diversity of representation and a proper balance between the interests of its different members. In addition, they are required to have a certain number of independent, “public” directors who are not associated or affiliated with the SRO or any of its members (a minimum of 50 percent in the board and then there are also rules for representation of independent directors in different relevant committees). IIROC and the MFDA are also required to ensure that their directors and officers are fit and proper persons, that is, they act honestly and in good faith and are competent to perform their functions.
The exchange SROs have similar obligations to promote a fair representation of members in selection of its board of directors and administration of its affairs. For example, the MX board must be comprised of at least 50 percent independent directors and the Chair of the board must be independent.
In the case of the CSF, two members of the CSF board are appointed by the Québec Minister of Finance for a term of three years. The other members of the board are elected by its members.
Conflicts of interest
In general SROs are required to identify and manage their conflict of interest. In addition, their recognition criteria require that the written policies in connection with conflict of interest be filed with the regulators. In addition, SROs are required to periodically assess the effectiveness of their governance arrangements. Changes to the governance
structure are subject to prior approval by the recognizing regulators.
structure that minimizes the potential for conflicts by requiring a minimum number of independent or “public” members of their boards of directors as defined in the entity’s by-laws or by requiring that the board have a proper balance between, and effective representation of, the public interest and the interests of members and the interests of different types of members. In the context of IIROC, the recognition criteria established additional requirements aimed at addressing the concern that TSX, which was a
shareholder of RS (one of the predecessor organizations) and which is one of the markets for which IIROC performs market regulation, have a disproportionate role in the governance of IIROC. This was achieved by requiring that the board contain at least one director from a marketplace other than one owned by the TSX.
The recognition criteria do not impose conditions in regard to the governance of the enforcement function. The current governance structure of IIROC allows for participation of industry representatives in the hearing panels (which are the adjudicative body for purposes of enforcement), as they are currently composed by two industry
representatives designated by the district councils and one independent member. It also allows limited participation of the district councils in the licensing process (as they are required to provide an opinion in connection with the admission to membership). In the case of MFDA, the regional councils also have a role in connection with the enforcement function, as well as policy matters.
As will be explained below, in particular in connection with governance arrangements, the AMF has requested improvements to CSF in connection with its relationship with the sections. In addition, some stakeholders expressed concerns about the need for rules to be approved by members of the MFDA.
Separation of regulatory functions (for exchanges SROs)
The RO of TSX does not require full separation of listing regulation operations from business operations. As part of the ongoing oversight by the securities regulators, the management of conflicts of interest from the listing function was analyzed and recommendations made.
MX Regulatory Division’s functions and operations are independent and structurally separated from the for-profit operations of the MX. The Division performs its functions and operations based on the principle of self-financing and shall not be for-profit. Pursuant to the MX’s RO and rules governing the Division, the MX must ensure that the Division is provided with sufficient resources and funds. Furthermore, no regulatory fees, fines or penalties collected by or on behalf of the Division may be distributed or transferred to the MX for commercial purposes or for payment of dividends. The Division funds its programs and activities, including surveillance, investigations and examinations, through distinct regulatory fees assessed directly on approved participants of the Exchange. Regulatory fees collected are for the exclusive use of regulatory operations. Also, under RO, fines and other sums received by the Division
pursuant to out-of-court settlements with the Division or disciplinary proceedings are treated under specific provisions.
Oversight approach
As IIROC and the MFDA are recognized by multiple regulators, the CSA has established oversight committees for each entity to coordinate their oversight and to ensure that issues are identified and resolved in a consistent manner. The IIROC oversight committee is chaired by the OSC and the MFDA’s is chaired by the BCSC.
The oversight committees meet quarterly in two sessions, one with just the committee members and one with SRO staff; they also hold ad hoc meetings as appropriate. The purpose of these meetings is to discuss matters relating to the oversight of the SRO, regulation of the SRO’s members and other matters of interests. The oversight committees report annually to the CSA Chairs on their activities.
As described in Principle 1 coordination arrangements follow a principal regulator approach whereby one regulator acts as the coordinator to channel all queries to the SRO. These arrangements have been formalized in a MoU (the one for MFDA is awaiting Ministerial approval in Ontario).
Oversight Program
The oversight program of an SRO includes: (i) approval of rules, (ii) periodic reporting, (iii) periodic meetings (at least quarterly), and (iv) on site reviews.
For IIROC and MX, it also includes an automation review program (including
Independent System Review (ISR)): An SRO with key technology systems and processes, i.e. IIROC and MX, is also subject to an automation review program (ARP) in order to assess the system’s capability and reliability of an SRO. The key components of an ARP are: (i) Annual independent system review, which requires an SRO to annually engage an independent qualified party to conduct a review of its systems and relevant controls and to report on such review; (ii) notification of material system failure, malfunction or delay; and (iii) Regular reporting on recent and anticipated systems changes.
In addition, where there are events that could have a significant impact on investor protection or the capital markets in general, and where SROs have a role to play, CSA staff will liaise with the SROs and monitor how the SROs are dealing with the situation. Examples of these types of events include the MF Global bankruptcy and Penson Canada’s closure of business. In these cases, CSA staff received periodic updates from IIROC to assess the potential impact to the market (e.g. number of clients or number of introducing dealers), any risk with respect to end clients or the market in general, and IIROC’s response.
Review of governing instruments and rules
Under their ROs, SROs are required to obtain approval of the recognizing regulator(s) for, among other things: (i) changes in the corporate governance or organizational structure; (ii) fees; and (iii) rules, policies and by-laws and amendments to rules, policies and by-laws. As will be further explained in Principle 34 in the case of MX its rules are subject to a self-certification process –which in practice incorporates steps designed to ensure that the AMF reviews the rules and is satisfied with the way the MX has
addressed comments by stakeholders during the consultation period.
In Ontario and Québec, IIROC rules and by-laws and any amendments are published for public comment. MFDA rules, by-laws and amendments are similarly published for comment in British Columbia and Ontario. Comments received are shared with the other recognizing regulators.
For purposes of ensuring efficiency in the review process, the regulators have developed a classification of rules in substantial changes and housekeeping rules. Substantial changes are subject to pre-approval, and consultation; while housekeeping only need to be notified. The regulators can “contest” the classification made of a rule, and the information provided shows that there have been cases where they have done so, thus subjecting a rule initially classified as housekeeping to the full process of a substantial change.
Reporting requirements
Each SRO is subject to certain periodic reporting requirements. For example, it needs to submit to the recognizing securities regulators, its financial statements, strategic plans, information and statistics about its compliance and enforcement programs. Both IIROC and MFDA are required to undertake a self-assessment of their regulatory functions on an annual basis (IIROC must submit within 90 days, and MFDA within 120 days of the end of the fiscal year). In addition, the ROs establish the authority of the regulators to request ad hoc reporting. An example of this is the MF Global bankruptcy matter. Details of specific reporting obligations are as follows:
IIROC
IIROC’s ROs contain extensive reporting obligations that include:
prompt notification of material violations of securities laws of which it is aware;
prompt notification of misconduct by members and approved persons where investors, clients, creditors, other members, Canadian Investor Protection Fund (CIPF) or IIROC may be expected to suffer serious damage, including fraud and
serious deficiencies in internal controls;
prompt notification if a member’s financial viability is uncertain;
providing the schedule for its financial, business conduct and trading conduct on site reviews
providing quarterly reports of terms and conditions imposed on the registration of approved persons;
providing quarterly reports of exemptions granted from IIROC’s UMIR; and
providing detailed ad hoc, monthly, quarterly and annual reports of enforcement activities.
MFDA
The ROs set out extensive reporting requirements, including a requirement for the MFDA to report:
any material changes to the MFDA’s organizational structure;
any disciplinary or settlement hearing including the resolution of the hearing of members in financial difficulty;
actual or apparent misconduct by member firms or member employees;
if any member has failed to file on a timely basis any required financial, operational or other report;
any conditions that exist with respect to a member firm which, in the opinion of the MFDA, could give rise to payments being made out of an investor
protection fund; and
members whose rights and privileges will be suspended or terminated or whose membership will be terminated.
annually a report of its regulatory staff complement to each of its recognizing regulators.
CSF
The supervision plan contains disclosure and reporting requirements for the CSF. For example, the supervision plan provides that:
committed by one of its employees in the supervision, internal controls or compliance with its rules or applicable laws;
Submit a notice to the AMF of any material change to its administrative structure or in the way it conducts its functions and powers of SRO, except requirements specifically provided for in the Distribution Act;
Notify the AMF upon receipt of a written complaint, deemed relevant and involving the CSF;
Notify any modification to the amount of the annual contribution of its