Ontario Securities Commission Bulletin
Issue 48/43 - October 30, 2025
Ont. Sec. Bull. Issue 48/43
• Ontario Securities Commission and Jessica Tam -- ss. 127(1), 127.1
• Ontario Securities Commission and Jessica Tam
• Ontario Securities Commission and Ron Carter Hew
• Ontario Securities Commission and Jessica Tam
• Ontario Securities Commission and Mitchell Carnie
• Ontario Securities Commission and Ron Carter Hew
• Ontario Securities Commission and Jessica Tam -- s. 127(1)
• Ontario Securities Commission and Mitchell Carnie -- Rules 9(6) and 14 of the CMT Rules of Procedure
• Cheelcare Inc. (formerly Departure Bay Capital Corp.) -- s. 1(11)(b)
• Venable Park Investment Counsel Inc. and R.N. Croft Financial Group Inc.
• Franklin Templeton Investments Corp. and The Top Fund
• TD Waterhouse Private Investment Counsel Inc. and TD Waterhouse Canada Inc.
• Temporary, Permanent & Rescinding Issuer Cease Trading Orders
• Temporary, Permanent & Rescinding Management Cease Trading Orders
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Ontario Securities Commission and Jessica Tam -- ss. 127(1), 127.1
FILE NO.: 2025-17
BETWEEN:
Subsection 127(1) and section 127.1 of the Securities Act, RSO 1990, c S.5
PROCEEDING TYPE: Public Settlement Hearing
HEARING DATE AND TIME: October 24, 2025, at 10:00 a.m.
LOCATION: By videoconference
The purpose of this hearing is to consider whether it is in the public interest for the Capital Markets Tribunal to approve the Settlement Agreement dated October 16, 2025, between the Commission and Jessica Tam in respect of the application filed by the Commission dated October 21, 2025.
Any party to the proceeding may be represented by a representative at the hearing.
IF A PARTY DOES NOT ATTEND, THE HEARING MAY PROCEED IN THE PARTY'S ABSENCE AND THE PARTY WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDING.
This Notice of Hearing is also available in French on request of a party. Participation may be in either French or English. Participants must notify the Tribunal in writing as soon as possible if the participant is requesting a proceeding be conducted wholly or partly in French.
L'avis d'audience est disponible en français sur demande d'une partie, que la participation à l'audience peut se faire en français ou en anglais et que les participants doivent aviser le Tribunal par écrit dès que possible si le participant demande qu'une instance soit tenue entièrement ou partiellement en français.
Dated at Toronto this 22nd date of October, 2025
For more information
Please visit capitalmarketstribunal.ca or contact the Registrar at registrar@capitalmarketstribunal.ca.
(Subsection 127(1) and Section 127.1 of the Securities Act, RSO 1990 c S.5)
1. This case involves insider trading. In 2021, Jessica Tam (Tam or the respondent) obtained material non-public information about the acquisition (the Acquisition) of Score Media & Gaming Inc. (Score) by US-based Penn National Gaming, Inc. (Penn) from Huy Le (Alvin) Huynh. Tam knew that Huynh was a VP of Finance at Score at the time.
2. Tam participated in an insider trading scheme devised by Huynh. Huynh offered to provide funds and instructions for trades made in Tam's account, in return for 80% of the trading profits. Huynh's spouse, Thi Anh Nguyet (Nancy) Pham, also knew about the Acquisition and was aware that Huynh and Tam had a plan to trade in Score.
3. In late July and early August 2021, on Huynh's advice and instruction, Tam purchased 304 Score call options for less than US$7,000 through Tam's TFSA. Score and Penn announced the Acquisition publicly on August 5, 2021. The next day, Huynh told Tam to sell all 304 Score call options in Tam's TFSA for US$318,800, resulting in trading profits of approximately US$311,000.
4. Huynh told Tam to pay his share of the profits slowly, and in cash. Huynh, Pham and Tam arranged cash payments using codewords over instant messaging. Between August 2021 and December 2022, Tam made multiple cash payments to Huynh and Pham.
5. Insider trading is a fundamental abuse of capital markets. Using material non-public information when purchasing shares of an acquisition target is inherently unfair to other investors and erodes public confidence in the capital markets. It is essential that individuals who come into possession of material non-public information abide by Ontario securities laws and not use that information for their personal financial gain.
The Ontario Securities Commission (the Commission) makes the following allegations of fact:
6. Tam is a resident of Ontario.
7. Tam graduated from Wilfried Laurier University in 2010 with a Bachelor of Business Administration degree. Her work history includes positions with multiple telecommunications companies.
8. Tam was unemployed from July 2021 to August 2022.
9. Tam and Pham were close friends at all material times. They met in high school, and saw each other and communicated frequently, including in chats over WhatsApp. Tam also knew Pham's husband, Huynh and communicated with him, including about matters related to investing.
10. Huynh and Pham are both chartered professional accountants and Ontario residents.
11. On July 14, 2021, Pham invited Tam to come over on July 25, 2021, so Huynh could talk to Tam about "some investment thing".
12. On July 22, 2021, Tam opened a tax-free savings account (TFSA) with Interactive Brokers.
13. At some point in July 2021, Tam met Huynh at a playground where they discussed options trading in general.
14. On July 25, 2021, Tam met Huynh at his house. Huynh knew that Tam was unemployed at that time and Tam knew that Huynh worked in finance at Score. At this meeting, Huynh gave Tam material non-public information about the Acquisition.
15. Tam understood that Huynh was communicating to her about a future transaction involving Score.
16. Huynh presented Tam with an opportunity to invest with him in Tam's TFSA, which he described as an "investment arrangement." Huynh gave Tam $10,000{1} to deposit in her TFSA. Huynh would provide Tam with trading instructions, either in person or via telephone, and Tam would make the trades in her TFSA. Huynh proposed that the profits of the insider trading scheme be split with 80% for Huynh and Pham, and 20% for Tam.
17. Tam agreed with Huynh's proposal. Huynh told Tam to keep the plan confidential. Pham was aware that Huynh and Tam had a plan to trade in Score.
18. On July 28, 2021, Huynh told Tam to purchase Score call options (Options) in her TFSA and on July 29, 2021, Tam purchased 184 Options for US$5,152.
19. On August 2, 2021, Huynh told Tam to purchase more Options. Tam purchased another 120 Options for US$1,800 the same day.
20. In the morning of August 5, 2021, Score and Penn announced the Acquisition publicly. That afternoon, Huynh told Tam to sell the Options. Tam sold all the Options the next day for US$318,800.
21. Tam understood it was important to Huynh that the arrangement be kept quiet.
22. Huynh told Tam to pay his share of the trading profits slowly, and in cash. Tam communicated with Pham and Huynh via WhatsApp to arrange delivery of the cash. Tam, Pham and Huynh used codewords over instant messaging to arrange payments. The codeword that was most frequently used was "toys", with one toy referring to $10,000.
23. On December 12, 2021, Huynh and Pham met Tam in person. During this meeting, Huynh gave Tam a set of written instructions to use part of his share of the profit that remained in Tam's TFSA towards purchasing other securities. Huynh told Tam to delete his contact information from her phone and gave Tam the name and contact information of a lawyer to call if anyone asked questions about the Score trades.
24. Tam used some of the remaining proceeds in her TFSA to follow Huynh's written instructions and make the trades in her TFSA. She also used some of the proceeds of the insider trading scheme for her own benefit, including to pay personal expenses.
25. The Commission alleges the following breach of Ontario securities law:
Tam, while in a special relationship with an issuer, purchased or sold securities of the issuer with the knowledge of a material fact or material change with respect to the issuer that had not been generally disclosed, contrary to s. 76(1) of the Securities Act, RSO 1990, c S.5
26. These allegations may be amended and further allegations may be added as counsel may advise and the Tribunal may permit.
27. The Commission requests that the Tribunal make the following orders against the respondent:
(a) that she cease trading in any securities or derivatives permanently or for such period as is specified by the Tribunal under paragraph (2) of s. 127(1) of the Act;
(b) that she be prohibited from acquiring any securities permanently or for the period specified by the Tribunal under paragraph (2.1) of s. 127(1) of the Act;
(c) that any exemption contained in Ontario securities law do not apply to her permanently or for such period as is specified by the Tribunal under paragraph (3) of s. 127(1) of the Act;
(d) that she be reprimanded under paragraph (6) of s. 127(1) of the Act;
(e) that she resign any position she may hold as director or officer of any issuer under paragraph (7) of s. 127(1) of the Act;
(f) that she be prohibited from acting as a director or officer of any issuer permanently, or for such period as is specified by the Tribunal under paragraph (8) of s. 127(1) of the Act;
(g) that she resign any position she may hold as a director or officer of any registrant under paragraph (8.1) of s. 127(1) of the Act;
(h) that she be prohibited from acting as a director or officer of any registrant permanently, or for such period as is specified by the Tribunal under paragraph (8.2) of s. 127(1) of the Act;
(i) that she be prohibited from becoming or acting as a registrant or promoter permanently, or for such period as is specified by the Tribunal under paragraph (8.5) of s. 127(1) of the Act;
(j) that she pay an administrative penalty of not more than $5 million for each failure to comply with Ontario securities law under paragraph (9) of s. 127(1) of the Act;
(k) that she disgorge to the Commission any amounts obtained as a result of non-compliance with Ontario securities law, under paragraph (10) of s. 127(1) of the Act;
(l) that she pay costs of the investigation and hearing, under s. 127.1 of the Act; and
(m) such other order as the Tribunal may consider appropriate in the public interest.
DATED this 21st day of October, 2025
ONTARIO SECURITIES COMMISSION |
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20 Queen Street West, 22nd Floor |
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Toronto, ON M5H 3S8 |
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Sakina Babwani |
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Litigation Counsel |
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sbabwani@osc.gov.on.ca |
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Tel: (416) 263-3763 |
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Adam Gotfried |
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Senior Litigation Counsel |
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agotfried@osc.gov.on.ca |
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Tel: (416) 263-7680 |
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{1} All references to currencies in this Settlement Agreement are references to Canadian dollars, unless otherwise indicated.
Ontario Securities Commission and Jessica Tam
FOR IMMEDIATE RELEASE
October 22, 2025
TORONTO -- The Tribunal issued a Notice of Hearing for a hearing to consider whether it is in the public interest to approve a Settlement Agreement entered into by the Commission and Jessica Tam in the above-named matter.
The hearing will be held on October 24, 2025, at 10:00 a.m. by videoconference.
Members of the public may observe the hearing by videoconference, by selecting the "View by Zoom" link on the Tribunal's hearing schedule, at capitalmarketstribunal.ca/en/hearing-schedule.
A copy of the Notice of Hearing dated October 22, 2025, and the Application for Enforcement Proceeding dated October 21, 2025 are available at capitalmarketstribunal.ca.
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Ontario Securities Commission and Ron Carter Hew
FOR IMMEDIATE RELEASE
October 22, 2025
TORONTO -- The Tribunal issued an Order in the above-named matter.
A copy of the Order dated October 22, 2025 is available at capitalmarketstribunal.ca.
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Ontario Securities Commission and Jessica Tam
FOR IMMEDIATE RELEASE
October 24, 2025
TORONTO -- Following a hearing held today, the Tribunal issued an Order in the above-named matter approving the Settlement Agreement reached between the Commission and Jessica Tam.
A copy of the Order dated October 24, 2025, and Settlement Agreement dated October 16, 2025, are available at capitalmarketstribunal.ca.
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For General Inquiries:
Ontario Securities Commission and Mitchell Carnie
FOR IMMEDIATE RELEASE
October 27, 2025
TORONTO -- The Tribunal issued an Order in the above-named matter.
A copy of the Order dated October 27, 2025 is available at capitalmarketstribunal.ca.
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Ontario Securities Commission et al.
FOR IMMEDIATE RELEASE
October 27, 2025
TORONTO -- The Tribunal issued an Order in the above-named matter.
A copy of the Order dated October 27, 2025 is available at capitalmarketstribunal.ca.
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Notice of Correction -- Mark Edward Valentine
File No. 2022-7
(2024) 47 OSCB 7713. Please be advised that the Reasons and Decision in the above-named matter dated September 30, 2024, mistakenly refer to the Stinson (Re), 2023 ONCMT 50 decision as a fraud case. As a result, the following errors have been corrected:
• in paragraph 66(e), the word "fraud" is deleted; and
• in paragraph 78, ",on occasion involving fraud" is deleted from the first sentence.
Ontario Securities Commission and Ron Carter Hew
File No. 2025-19
Adjudicator: |
M. Cecilia Williams |
October 22, 2025
WHEREAS on October 22, 2025, the Capital Markets Tribunal held a hearing by videoconference;
ON HEARING submissions of the representative for the Ontario Securities Commission, and no one appearing for Ron Carter Hew;
IT IS ORDERED THAT:
1. pursuant to rule 3 and subrule 14.1(1) of theCapital Markets Tribunal Rules of Procedure and Forms (the Rules of Procedure), the merits hearing and the sanctions and cost hearing in this proceeding shall be heard together;
2. pursuant to subrule 9(6) of the Rules of Procedure, the proceeding shall be conducted as a written hearing;
3. the Commission shall serve and file written evidence, if any, and written submissions on the merits and sanctions and costs by 4:30 p.m. on November 28, 2025;
4. the respondent shall serve and file written evidence, if any, and written submissions on the merits and sanctions and costs by 4:30 p.m. on December 15, 2025; and
5. the Commission shall serve and file reply submissions, if any, by 4:30 p.m. on December 22, 2025.
Ontario Securities Commission and Jessica Tam -- s. 127(1)
BETWEEN:
File No. 2025-17
Adjudicators: |
James Douglas (chair of the panel) |
Cathy Singer |
|
Jane Waechter |
October 24, 2025
(Subsection 127(1) of the Securities Act, RSO 1990, c S.5)
WHEREAS on October 24, 2025, the Capital Markets Tribunal held a hearing by videoconference to consider the Joint Request for a Settlement Hearing filed by the Ontario Securities Commission and Jessica Tam (Tam) for approval of a settlement agreement dated October 16, 2025 (the Settlement Agreement);
ON READING the Application for Enforcement Proceeding dated October 21, 2025, the Joint Request for a Settlement Hearing dated October 21, 2025, including the Settlement Agreement, the written submissions of the Commission and on hearing the submissions of the representatives for the parties, and on being advised by the Commission that it has received payment of all amounts in accordance with the terms of the Settlement Agreement;
IT IS ORDERED, for reasons to follow, that:
1. the Settlement Agreement is approved;
2. pursuant to paragraph 2 of subsection 127(1) of the Securities Act (the Act), trading in any securities or derivatives by Tam cease for a period of 2 years, except that she may trade:
a. mutual funds, exchange-traded funds, government bonds and/or guaranteed investment certificates (GICs) for the account of any registered retirement savings plan (RRSP), registered retirement income fund (RRIF) and tax-free savings account (TFSA), as defined in the Income Tax Act, RSC 1985, c 1 as amended (the Income Tax Act), in which Tam has sole legal and beneficial ownership; and
b. solely through a registered dealer in Ontario, to whom Tam must have given a copy of the Order.
3. pursuant to paragraph 2.1 of subsection 127(1) of the Act, the acquisition of any securities by Tam be prohibited for a period of 2 years, except that she may acquire:
a. mutual funds, exchange-traded funds, government bonds and/or GICs for the account of any RRSP, RRIF and TFSA, as defined in the Income Tax Act, in which Tam has sole legal and beneficial ownership; and
b. solely through a registered dealer in Ontario, to whom Tam must have given a copy of the Order; and
4. pursuant to paragraph 10 of subsection 127(1) of the Act, Tam shall disgorge to the Commission the amount of $120,000.
1. This case involves insider trading. In 2021, Jessica Tam (Tam or the respondent) obtained material non-public information about the acquisition (the Acquisition) of Score Media & Gaming Inc. (Score) by US-based Penn National Gaming, Inc. (Penn) from Huy Le (Alvin) Huynh. Tam knew that Huynh was a VP of Finance at Score at the time.
2. Tam participated in an insider trading scheme devised by Huynh. Huynh offered to provide funds and instructions for trades made in Tam's account, in return for 80% of the trading profits. Huynh's spouse, Thi Anh Nguyet (Nancy) Pham, also knew about the Acquisition and was aware that Huynh and Tam had a plan to trade in Score.
3. In late July and early August 2021, on Huynh's advice and instructions, Tam purchased 304 Score call options for less than US$7,000 through her TFSA. Score and Penn announced the Acquisition publicly on August 5, 2021. The next day, Huynh told Tam to sell all 304 Score call options in Tam's TFSA for US$318,800, resulting in trading profits of approximately US$311,000.
4. Huynh told Tam to pay his share of the profits slowly, and in cash. Huynh, Pham and Tam arranged cash payments using codewords over instant messaging. Between August 2021 and December 2022, Tam made multiple cash payments to Huynh and Pham.
5. Insider trading is a fundamental abuse of capital markets. Using material non-public information when purchasing shares of an acquisition target is inherently unfair to other investors and erodes public confidence in the capital markets. It is essential that individuals who come into possession of material non-public information abide by Ontario securities laws and not use that information for their personal financial gain.
6. Tam has cooperated with the Commission's investigation, admitted to serious misconduct, and implicated others. She is entitled to significant credit for her cooperation.
7. The parties will jointly file a request that the Capital Markets Tribunal (the Tribunal) issue a Notice of Hearing to announce that it will hold a hearing (the Settlement Hearing) to consider whether, pursuant to sections 127 and 127.1 of the Securities Act, RSO 1990, c S.5 (the Act), it is in the public interest for the Tribunal to make certain orders against the respondent.
8. The parties recommend settlement of the Proceeding against the respondent in accordance with the terms and conditions set out in this agreement (the Settlement Agreement). The respondent consents to the making of an order (the Order) substantially in the form attached as Schedule "A" to this Settlement Agreement based on the facts set out herein.
9. For the purposes of the Proceeding, and any other regulatory proceeding commenced by the Commission or another securities regulatory authority, the respondent agrees with the facts set out in Part III of this Settlement Agreement and the conclusions in Part IV and V of this Settlement Agreement.
A. Insider Trading
10. Tam is an Ontario resident. She graduated from Wilfried Laurier University in 2010 with a Bachelor of Business Administration degree.
11. Tam's work history includes positions with multiple telecommunications companies. She was unemployed from July 2021 to August 2022.
12. Tam and Pham were close friends at all material times. They met in high school, and saw each other and communicated frequently, including in chats over WhatsApp. Tam also knew Pham's husband, Huynh and communicated with him, including about matters related to investing.
13. Huynh and Pham are both chartered professional accountants and Ontario residents.
14. On July 14, 2021, Pham invited Tam to come over on July 25, 2021, so Huynh could talk to Tam about "some investment thing".
15. On July 22, 2021, Tam opened a tax-free savings account (TFSA) with Interactive Brokers.
16. At some point in July 2021, Tam met Huynh at a playground where they discussed options trading in general.
17. On July 25, 2021, Tam met Huynh at his house. Huynh knew that Tam was unemployed at that time and Tam knew that Huynh worked in finance at Score. At this meeting, Huynh gave Tam material non-public information about the Acquisition.
18. Tam understood that Huynh was communicating to her about a future transaction involving Score.
19. Huynh presented Tam with an opportunity to invest with him in Tam's TFSA, which he described as an "investment arrangement." Huynh gave Tam $10,000{1} to deposit in her TFSA. Huynh would provide Tam with trading instructions, either in person or via telephone, and Tam would make the trades in her TFSA. Huynh proposed that the profits of the insider trading scheme be split with 80% for Huynh and Pham, and 20% for Tam.
20. Tam agreed with Huynh's proposal. Huynh told Tam to keep the plan confidential. Pham was aware that Huynh and Tam had a plan to trade in Score.
21. On July 28, 2021, Huynh told Tam to purchase Score call options (Options) in her TFSA, and on July 29, 2021, Tam purchased 184 Options for US$5,152.
22. On August 2, 2021, Huynh told Tam to purchase more Options. Tam purchased another 120 Options for US$1,800 the same day.
23. In the morning of August 5, 2021, Score and Penn announced the Acquisition publicly. That afternoon, Huynh told Tam to sell the Options. Tam sold all the Options the next day for US$318,800.
B. Splitting the Profits
24. Tam understood it was important to Huynh that the arrangement be kept quiet.
25. Huynh told Tam to pay his share of the trading profits slowly, and in cash. Tam communicated with Pham and Huynh via WhatsApp to arrange delivery of the cash. Tam, Pham and Huynh used codewords over instant messaging to arrange payments. The codeword that was most frequently used was "toys", with one toy referring to $10,000.
26. Tam recalls making the following specific cash payments to Huynh and Pham totaling $180,000:
Date
Cash Payment
August 19, 2021
$50,000
October 2, 2021
$10,000
October 30, 2021
$20,000
November 29, 2021
$30,000
May 14, 2022
$20,000
November 18, 2022
$30,000
December 27, 2022
$20,000
27. On December 12, 2021, Huynh and Pham met Tam in person. During this meeting, Huynh gave Tam a set of written instructions to use part of his share of the profit that remained in Tam's TFSA towards purchasing other securities. Huynh told Tam to delete his contact information from her phone and gave Tam the name and contact information of a lawyer to call if anyone asked questions about the Score trades.
28. Tam used some of the remaining proceeds in her TFSA to follow Huynh's written instructions and make the trades in her TFSA. She also used some of the proceeds of the insider trading scheme for her own benefit, including to pay personal expenses.
29. Of the total trading profit of approximately $390,000 made by Tam and Huynh, Tam has agreed to disgorge $120,000 to the Commission. Huynh has disgorged the remaining $270,000 to the Commission in connection with his settlement with the Commission, approved by the Tribunal on September 26, 2025.
C. Mitigating Factors
30. Tam has accepted full responsibility for her conduct and admits to her part in the insider trading scheme.
31. Tam was not the architect of the insider trading scheme, which was proposed and organized by Huynh. Huynh knew that Tam was unemployed and in a fraught emotional state when Huynh proposed the scheme.
32. Tam has been granted credit for cooperation pursuant to the OSC Staff Notice 15-702: Revised Credit for Cooperation Program for cooperating fully with the investigation, including her undertaking to testify as a witness in any future enforcement proceeding.
33. Tam has no history of prior misconduct with any securities regulatory authority.
34. The respondent acknowledges and admits that, in 2021, while in a special relationship with an issuer (Score), she purchased or sold securities of Score with the knowledge of a material fact or a material change with respect to Score that had not been generally disclosed, contrary to s. 76(1) of the Act.
35. The respondent agrees to the terms of settlement set forth below.
36. The respondent consents to the Order substantially in the form attached as Schedule "A", pursuant to which it is ordered that:
(a) the Settlement Agreement is approved;
(b) trading in any securities or derivatives by the respondent cease for a period of two years commencing on the date of the Order, pursuant to paragraph 2 of s. 127(1) of the Act, except that the respondent shall be permitted to trade:
(i) mutual funds, exchange-traded funds, government bonds and/or guaranteed investment certificates (GICs) for the account of any registered retirement savings plan (RRSP), registered retirement income fund (RRIF) and TFSA, as defined in the Income Tax Act, RSC 1985, c 1 as amended (the Income Tax Act), in which the respondent has sole legal and beneficial ownership; and
(ii) solely through a registered dealer in Ontario, to whom the respondent must have given a copy of the Order.
(c) the acquisition of any securities by the respondent be prohibited for a period of two years commencing on the date of the Order, pursuant to paragraph 2.1 of s. 127(1) of the Act, except that the respondent shall be permitted to acquire:
(i) mutual funds, exchange-traded funds, government bonds and/or GICs for the account of any RRSP, RRIF and TFSA, as defined in the Income Tax Act, in which the Respondent has sole legal and beneficial ownership; and
(ii) solely through a registered dealer in Ontario, to whom the respondent must have given a copy of the Order.
(d) the respondent disgorge to the Commission the amount of $120,000 pursuant to paragraph 10 of s. 127(1) of the Act; and
(e) the amount set out in sub-paragraph (d) above be paid in full to the Commission by wire transfer before the Tribunal conducts a public hearing to approve this Settlement Agreement.
37. The respondent acknowledges that this Settlement Agreement and the Order may form the basis for orders of parallel effect in other jurisdictions in Canada. The securities laws of some other Canadian jurisdictions allow orders made in this matter to take effect in those other jurisdictions automatically, without further notice to the respondent. The respondent should contact the securities regulator of any other jurisdiction in which the respondent intends to engage in any securities or derivatives-related activities, prior to undertaking such activities.
38. If the Tribunal approves this Settlement Agreement, no enforcement proceedings will be continued against the respondent under Ontario securities law based on the misconduct described in Part III of this Settlement Agreement, unless the respondent fails to comply with any term in this Settlement Agreement, in which case enforcement proceedings may be brought or continued under Ontario securities law against the respondent that may be based on, among other things, the facts set out in Part III of this Settlement Agreement as well as the breach of this Settlement Agreement.
39. The respondent acknowledges that, if the Tribunal approves this Settlement Agreement and the respondent fails to comply with any term in it, proceedings may be brought in order to, among other things, recover the amounts set out in subparagraph 36(d) above.
40. The respondent waives any defences to a proceeding referenced in paragraphs 38 or 39 above that are based on the limitation period in the Act, provided that no such proceeding shall be commenced later than six years from the date of the occurrence of the last failure to comply with this Settlement Agreement.
41. The parties will seek approval of this Settlement Agreement at the Settlement Hearing before the Tribunal, which shall be held on a date determined by the Tribunal's Governance and Tribunal Secretariat in accordance with this Settlement Agreement and the Tribunal's Rules of Procedure.
42. The respondent will attend the Settlement Hearing in person or by video conference.
43. The parties confirm that this Settlement Agreement sets forth all of the agreed facts that will be submitted at the Settlement Hearing, unless the parties agree that additional facts should be submitted at the Settlement Hearing.
44. If the Tribunal approves this Settlement Agreement:
(a) the respondent irrevocably waives all rights to a full hearing, judicial review or appeal of this matter under the Act;
(b) neither party will make any public statement that is inconsistent with this Settlement Agreement or with any additional agreed facts submitted at the Settlement Hearing; and
(c) the respondent agrees to testify in any enforcement proceeding relating to the matters described in this Settlement Agreement.
45. Whether or not the Tribunal approves this Settlement Agreement, the respondent will not use, in any proceeding, this Settlement Agreement or the negotiation or process of approval of this Settlement Agreement as the basis for any attack on the Commission or the Tribunal's jurisdiction, alleged bias, alleged unfairness or any other remedies or challenges that may be available.
46. If the Tribunal does not approve this Settlement Agreement or does not make an order substantially in the form of the Order attached as Schedule "A" to this Settlement Agreement:
(a) this Settlement Agreement and all discussions and negotiations between the parties before the Settlement Hearing will be without prejudice to any party; and
(b) the parties will each be entitled to all available proceedings, remedies and challenges, including proceeding to a hearing on the merits of the allegations contained in an Application for Enforcement Proceeding based on the conduct described herein. Any such proceedings, remedies and challenges will not be affected by this Settlement Agreement, or by any discussions or negotiations relating to this Settlement Agreement.
47. The parties will keep the terms of this Settlement Agreement confidential until the Settlement Hearing, except as is necessary to make submissions at the Settlement Hearing. If, for whatever reason, the Tribunal does not approve the Settlement Agreement, the terms of the Settlement Agreement shall remain confidential indefinitely, unless the parties otherwise agree in writing or if required by law.
48. This Settlement Agreement may be signed in one or more counterparts which together constitute a binding agreement.
49. A facsimile copy or other electronic copy of any signature will be as effective as an original signature.
DATED at Toronto, Ontario this 8th day of October, 2025.
"Wai Fan Lau" |
"Jessica Tam" |
______________________________________________________ |
______________________________________________________ |
Witness: Wai Fan Lau |
JESSICA TAM |
DATED at Toronto, Ontario, this 16th day of October, 2025.
File No. XX
Adjudicators: |
James Douglas (chair of the panel) |
Cathy Singer |
|
Jane Waechter |
October XX, 2025
(Subsection 127(1) and 127.1 of the Securities Act, RSO 1990, c S.5)
WHEREAS on [date], the Capital Markets Tribunal held a hearing by video conference to consider the Joint Request for a Settlement Hearing filed by the Ontario Securities Commission and Jessica Tam (Tam) for approval of a settlement agreement dated [date] (the Settlement Agreement);
ON READING the Application for Enforcement Proceeding dated [date], the Joint Request for a Settlement Hearing dated [date], including the Settlement Agreement, the written submissions of the Commission and on hearing the submissions of the representatives for the parties, and on being advised by the Commission that it has received payment of all amounts in accordance with the terms of the Settlement Agreement;
IT IS ORDERED THAT:
1. The Settlement Agreement is approved;
2. Pursuant to paragraph 2 of subsection 127(1) of the Act, trading in any securities or derivatives by Tam cease for a period of 2 years, except that she may trade:
(a) mutual funds, exchange-traded funds, government bonds and/or guaranteed investment certificates (GICs) for the account of any registered retirement savings plan (RRSP), registered retirement income fund (RRIF) and tax-free savings account (TFSA), as defined in the Income Tax Act, RSC 1985, c 1 as amended (the Income Tax Act), in which Tam has sole legal and beneficial ownership; and
(b) solely through a registered dealer in Ontario, to whom Tam must have given a copy of the Order.
3. Pursuant to paragraph 2.1 of subsection 127(1) of the Act, the acquisition of any securities by Tam be prohibited for a period of 2 years, except that she may acquire:
a. mutual funds, exchange-traded funds, government bonds and/or GICs for the account of any RRSP, RRIF and TFSA, as defined in the Income Tax Act, in which Tam has sole legal and beneficial ownership; and
b. solely through a registered dealer in Ontario, to whom Tam must have given a copy of the Order; and
50. Pursuant to paragraph 10 of subsection 127(1) of the Act, Tam shall disgorge to the Commission the amount of $120,000.
_______________________ |
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James Douglas |
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_______________________ |
_______________________ |
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Cathy Singer |
Jane Waechter |
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{1} All references to currencies in this Settlement Agreement are references to Canadian dollars, unless otherwise indicated.
Ontario Securities Commission and Mitchell Carnie -- Rules 9(6) and 14 of the CMT Rules of Procedure
BETWEEN:
File No. 2025-23
Adjudicator: |
Tim Moseley |
October 27, 2025
(Rules 9(6) and 14 of the Capital Markets Tribunal Rules of Procedure)
WHEREAS on October 27, 2025, the Capital Markets Tribunal held a hearing by videoconference;
ON READING the materials filed by the Ontario Securities Commission, and on hearing the submissions of the representatives for the Commission, no one attending for the respondent, although properly served;
IT IS ORDERED THAT:
1. pursuant to subrule 9(6) of the Rules of Procedure, the proceeding shall be conducted in writing;
2. by 4:30 PM on December 1, 2025, the Commission shall serve and file its affidavit evidence, and written submissions on the merits, sanctions and costs;
3. by 4:30 p.m. on January 12, 2026, the respondent shall serve and file any affidavit evidence and written submissions on the merits, sanctions and costs; and
4. if applicable, by 4:30 PM on January 26, 2026, the Commission shall serve and file any reply affidavit evidence and any reply submissions on merits, sanctions and costs.
Ontario Securities Commission et al.
File No. 2024-10
Adjudicators: |
James Douglas (Chair) |
Mary Condon |
|
Geoffrey D. Creighton |
October 27, 2025
WHEREAS on October 27, 2025, the Capital Markets Tribunal held a hearing by videoconference;
ON HEARING the submissions of the representatives for the Ontario Securities Commission and the respondents;
IT IS ORDERED THAT by 4:30 p.m. on November 17, 2025, the parties shall provide to the Registrar electronic versions of their book of documents containing the documents that each party intends to rely on or enter as evidence at the merits hearing.
Mark Edward Valentine -- ss. 127(1), 127.1
Citation: Valentine (Re), 2024 ONCMT 21
Date: 2024-09-30
File No. 2022-7
(Subsection 127(1) and section 127.1 of the Securities Act, RSO 1990, c S.5)
Adjudicators: |
Cathy Singer (chair of the panel) |
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Geoffrey D. Creighton |
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Dale R. Ponder |
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Hearing: |
By videoconference, July 3, 2024 |
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Appearances: |
Andrew Faith |
For the Ontario Securities Commission |
Ryan Lapensee |
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Sean Grouhi |
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Greg Temelini |
For Mark Edward Valentine |
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Janice Wright |
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[1] In a decision on the merits dated March 20, 2024 (the Merits Decision),{1} the Capital Markets Tribunal found that Mark Edward Valentine breached a 2004 order of the Ontario Securities Commission which banned him permanently from acting as a director or officer of an issuer, and from trading in securities for 15 years (the 2004 Order). By breaching the 2004 Order, he violated Ontario securities law.
[2] The Commission asks that we impose sanctions against Valentine pursuant to s. 127(1) of the Securities Act (the Act),{2} and that we order him to pay a portion of the Commission's costs of the investigation and this proceeding.
[3] Valentine accepts the permanent market participation bans and disgorgement order sought against him, but does not accept the requested administrative penalties and costs orders.
[4] For the reasons set out below, we conclude it would be in the public interest to order that Valentine:
a. be permanently banned from participation in the securities market;
b. disgorge to the Commission $3,257,639.75 and US$10,732,503;{3}
c. pay administrative penalties totaling $1,000,000; and
d. pay $300,000 in respect of the Commission's costs.
[5] On December 16, 2004, Valentine entered into a settlement agreement with the Commission based on certain breaches of Ontario securities law. The settlement agreement led to the 2004 Order against Valentine to:
a. resign all positions he held as a director or officer of an issuer;
b. be permanently prohibited from becoming or acting as a director or officer of any issuer (a. and b. collectively the D&O Ban); and
c. cease trading in securities for a period of 15 years (the Trading Ban).
[6] In 2022, the Commission alleged that Valentine breached these prohibitions by:
a. acting as a director and officer of many Ontario corporations;
b. participating in the sale of over 5 million shares in a corporation called Flyp Technologies Inc. (the Flyp Sale); and
c. participating in several "Stock Secured Financings", which were transactions involving trades of securities;
and as a result, violated Ontario securities law once again.
[7] Over the course of the merits hearing, Valentine admitted to the first two alleged breaches, and disputed the third.
[8] In the Merits Decision, we found that Valentine breached the D&O Ban by acting as a director and/or officer of 38 Ontario corporations, breached the Trading Ban by participating in the Flyp Sale, and further breached the Trading Ban by participating in the Stock Secured Financings.
[9] We dismissed an additional allegation against Valentine that he engaged in "conduct contrary to the public interest", having found no evidence of additional conduct warranting an order under s. 127 of the Act.
[10] The Tribunal may impose sanctions under s. 127(1) of the Act where it finds it to be in the public interest to do so. The Tribunal's exercise of that jurisdiction must be consistent with the purposes of the Act, which include protecting investors from unfair, improper and fraudulent practices, and fostering fair and efficient capital markets and confidence in the capital markets.
[11] Sanctions are protective and are intended to prevent future harm to investors and to the capital markets.{4}
[12] In this case, the Commission seeks the following sanctions and costs against Valentine:
a. permanent prohibitions on his ability to participate in Ontario's capital markets;
b. administrative penalties of $2,000,000, representing $1,000,000 for the breach of the D&O Ban, and $1,000,000 for the breaches of the Trading Ban;
c. disgorgement of $3,257,639.75 and US$10,732,503; and
d. costs of $343,569.30.
[13] Valentine accepts the permanent market participation bans and disgorgement order sought against him, and proposes alternative administrative penalties (totalling $500,000) and an alternative costs order of $175,000.
[14] We will address each of the requested sanctions and costs orders in turn. We begin with a discussion of well-established sanctioning factors{5} that apply in this case.
[15] The Commission submits that Valentine's misconduct involved a significant degree of seriousness for the following reasons:
a. Valentine's breaches of the 2004 Order began immediately once that order came into force;
b. Valentine breached the 2004 Order continuously for nearly two decades; and
c. Valentine breached the 2004 Order in three separate respects.
[16] The Commission asks us to infer from the above that Valentine settled with the Commission in 2004 as a means of getting rid of the settled proceeding, with no real intention of being bound by the terms of the settlement.
[17] We decline to draw the inference the Commission invites us to, concerning Valentine's intentions in respect of the 2004 Order. There is insufficient evidence in the record to support such an inference.
[18] Valentine declined to testify in this proceeding, both at the hearing on the merits, and at the sanctions hearing. That is undoubtedly his right and we draw no inference from it. The result of that choice, nevertheless, is that we have no evidence from Valentine to explain his serious and repeated breaches of the 2004 Order.
[19] Valentine submits that he recognizes and accepts that his misconduct was serious, and warrants significant sanctions in the form of permanent market participation bans and the large disgorgement order sought by the Commission. Valentine notes that there is no evidence that any investor lost any funds. Nor is there any evidence that, apart from breaching the 2004 Order, his conduct was in any other way unlawful, or ran afoul of the Act.
[20] Valentine's misconduct was very serious. He repeatedly breached the 2004 Order immediately upon its issuance, over an extended period and in multiple transactions. Respect for and compliance with Tribunal orders is a critical element in the regulation of Ontario's capital market. A breach of a Tribunal order shows a disregard for the rule of law as well as for the Tribunal and its processes and undermines public confidence in capital markets.{6}
[21] We conclude that the misconduct is serious, and calls for serious sanctions.
[22] There is no doubt that Valentine has significant experience in the capital markets. Nor is he a stranger to enforcement proceedings.
[23] The Commission asks us to review Valentine's prior history of misconduct when considering what sanctions to order against him -- including the misconduct that led to the 2004 Order and a U.S. criminal securities fraud conviction.
[24] Valentine's history is relevant to determining sanctions sufficient to deter Valentine from future breaches of Ontario securities law (including any order that arises from this proceeding), and to deter others from breaching orders of the Tribunal.
[25] As detailed in the Merits Decision, Valentine was the Chairman, a director and the largest shareholder of the now defunct Thomson Kernaghan & Co. Ltd., a registered investment dealer (TK). Valentine was himself a registrant with the Investment Dealers' Association of Canada (a predecessor of CIRO).
[26] Misconduct by Valentine in his roles at TK led to the 2004 Order. Also in 2004, he pleaded guilty to one criminal count of securities fraud in a U.S. court, was sentenced to probation and home detention, and was deported from the U.S.
[27] This history establishes that Valentine has had significant experience in capital markets and has been subject to prior enforcement proceedings. He was represented by counsel in respect of the settlement that gave rise to the 2004 Order. Put simply, he should have known better.
[28] Valentine's breaches of the D&O Ban and Trading Ban were recurrent. Valentine began breaching the 2004 Order immediately after it came into effect and continued to do so for approximately 19 years.
[29] He failed to resign from two existing director and officer positions he held at the time of the 2004 Order, and then over subsequent years became a director and/or officer of 36 additional Ontario corporations.
[30] Although Valentine's participation in the Flyp Sale could be considered a one-time event, his trading activity in relation to the Stock Secured Financings was recurrent and there was evidence that Valentine obtained compensation for his involvement in those transactions over a period of at least three years.
[31] On a scale of isolated to recurrent, Valentine's misconduct was firmly at the recurrent end.
[32] The Commission submits that there are no mitigating factors present in this case.
[33] The Commission submits that there is no evidence that Valentine recognizes the seriousness of his misconduct, and his admissions came at such a late stage in the hearing process that the Commission was still required to investigate the breaches, commence this proceeding, prove the allegations and incur significant costs. The Commission also submits that Valentine gave false or misleading answers to questions about the Stock Secured Financings during his compelled examinations which negates any mitigating impact of his later admissions
[34] Valentine submits that there are mitigating factors present, including Valentine's conduct during the merits hearing leading to multiple efficiencies. This conduct is relevant to our costs analysis, and is discussed in more detail below in that context.
[35] On the question of mitigation as it relates to sanctions (as opposed to conduct relevant to costs) we find there are no substantial mitigating factors in this case. As noted, we have no evidence of Valentine's state of mind or any explanation for the breaches. Though, in his submissions, he states that he recognizes the findings against him are serious, there is no evidence of any remorse on his part.
[36] We give no weight to the Commission's submission that Valentine gave false or misleading answers in his compelled examinations. This allegation was not made in the Statement of Allegations, nor was there any finding to that effect in the Merits Decision.
[37] The final factor to consider is the likely effect that any sanction would have on Valentine ("specific deterrence") as well as on others ("general deterrence").
[38] Valentine's conduct was serious, and the sanctions against him must be appropriately crafted to achieve specific and general deterrence. They must make clear how serious it is to breach a Tribunal order.
[39] Valentine submits that the sanctions he has agreed to (market participation bans and disgorgement order), and the alternative sanctions he proposes (including $500,000 in administrative penalties), achieve both specific and general deterrence. Whether they are enough, however, we will address below in the discussion of administrative penalties.
[40] The Commission asks that we impose permanent restrictions on Valentine's participation in Ontario's capital markets. Specifically, the Commission asks for an order that:
a. trading in any securities or derivatives by Valentine cease permanently;
b. the acquisition of any securities by Valentine cease permanently;
c. any exemptions in Ontario securities laws do not apply to Valentine permanently;
d. Valentine resign any positions as a director and/or officer of any issuer or registrant, including an investment fund manager;
e. Valentine be prohibited permanently from becoming or acting as a director and/or officer of any issuer or registrant, including an investment fund manager; and
f. Valentine be prohibited permanently from becoming or acting as a registrant, including an investment fund manager, or as a promoter.
[41] Valentine accepts the permanent market participation bans sought by the Commission as in the public interest. We agree. Permanent market participation bans reflect the seriousness of Valentine's misconduct and are necessary as an element of specific and general deterrence.
[42] Paragraph 9 of s. 127(1) of the Act provides that if a person or company has not complied with Ontario securities law, the Tribunal may require the person or company to pay an administrative penalty of not more than $1,000,000 for each failure to comply. The Commission seeks administrative penalties of $1,000,000 for Valentine's breach of the D&O Ban and another $1,000,000 for his breaches of the Trading Ban.
[43] There is no formula for determining the quantum of an administrative penalty. In the past the Tribunal has emphasized the seriousness of the misconduct and the importance of specific and general deterrence as particularly relevant to determining the appropriate amount of an administrative penalty.{7}
[44] When ordering administrative penalties, the Tribunal must take care to avoid amounts that are so low that they may be viewed as a cost of doing business or a licence fee for unscrupulous market participants.{8}
[45] In deciding the appropriate administrative penalties, we have also taken a global view of the sanctions imposed on Valentine, taking into account the disgorgement order and market participation bans.
[46] Valentine submits that administrative penalties of $200,000 for the breach of the D&O Ban and $300,000 for the breaches of the Trading Ban are appropriate and in the public interest. A $2,000,000 administrative penalty, in addition to disgorgement and permanent market participation bans, he submits is too severe, punitive and outside the range of administrative penalties imposed in other cases.
[47] We conclude that an administrative penalty of $500,000 for the breach of the D&O Ban, and of $500,000 for the breaches of the Trading Ban, are appropriate in this case.
[48] The Commission submits that a $1,000,000 administrative penalty for Valentine's breach of the D&O Ban is reasonable, reflects its seriousness, and is in the public interest given the unprecedented nature of the misconduct, which involved 38 private companies over approximately 19 years.
[49] The Commission submits that we ought not consider ourselves bound by decisions of other Canadian securities regulatory authorities outside Ontario, which have ordered administrative penalties in the range of $10,000 to $200,000 against respondents for breaches of a director and officer ban involving primarily private companies.{9} In those cases, the Commission argues, the respondents only breached the relevant orders by acting as de facto or de jure directors and/or officers of a small number of companies, and, in many cases, there was no evidence that the companies conducted much business or resulted in much benefit flowing to the respondents.
[50] The $1,000,000 figure proposed by the Commission, it submits, represents a sum of approximately $26,315 per corporation (of the 38 corporations), and incorporates a discount from comparable cases to account for the fact that some of the corporations in this case were inactive or were mere holding companies.
[51] The Commission submits that we also ought to consider the financial benefit Valentine received from his misconduct in determining the appropriate administrative penalty. The Commission tendered evidence, by way of example, of dividends paid to Valentine in relation to one of the 38 corporations of $51,750 and $86,250 in 2019 and 2020, respectively.
[52] Valentine submits that a $1,000,000 administrative penalty for his breach of the D&O Ban is too severe, punitive and outside the range of administrative penalties imposed in other cases. Valentine submits that caselaw suggests the appropriate range of administrative penalties for breach of the D&O Ban is $110,000 to $200,000. Of particular relevance, in Valentine's submission, are the Alexander (Re){10} and Cadman (Re){11} decisions:
a. In Alexander, the respondent breached a prior order of the British Columbia Securities Commission (BCSC) by, among other things, becoming a director and officer of seven issuers while prohibited from doing so by order of the BCSC. The BCSC found that Alexander's breaches were deliberate, and he engaged in dishonest conduct. The BCSC imposed an administrative penalty of $200,000 and permanent market participation bans.
b. In Cadman, the respondents breached a settlement agreement with the Alberta Securities Commission (ASC) where they agreed to refrain from acting as directors or officers of any issuers for two years. While the respondents formally resigned as directors and officers of 20 companies, they continued to function as directors and officers of these companies and were raising new capital from investors. The respondents also misled ASC staff when asked about their roles in their companies. The ASC ordered an administrative penalty of $110,000 for each of the respondents and five- and ten-year market participation bans.
[53] Valentine submits that these decisions set the upper limit for cases involving breaches of a D&O Ban, and the conduct at issue in both cases was far more serious than Valentine's.
[54] Valentine submits that in determining the appropriate administrative penalty for the breach of the D&O Ban, the following factors are also relevant:
a. Valentine openly admitted that he was a director and/or officer of the corporations at issue in his interviews with OSC staff;
b. Valentine did not attempt to conceal his roles in the various corporations;
c. aside from the fact of the D&O Ban, the activities engaged in by Valentine were legal business activities (i.e., there was no allegation that any of the activities, in and of themselves, breached any provision of the Act);
d. the corporations were all private and were not reporting issuers; and
e. no investors or members of the public were harmed.
[55] For these reasons, Valentine submits that the appropriate administrative penalty for breach of the D&O Ban is $200,000.
[56] The factors and authorities submitted by Valentine persuade us that the Commission's proposed penalty of $1,000,000 for the breach of the D&O Ban is excessive. We are not persuaded that the Commission's "per corporation" calculation is of much assistance in reaching a reasoned conclusion. While no prior case shares the features of this proceeding, there is no case cited by either party which approaches the total sum proposed by the Commission.
[57] On the other hand, there is no case in which a breach of a director and officer ban has persisted for so long, in respect of so many companies, without any exculpatory explanation from the respondent. Valentine's decision to decline to testify (which, we emphasize, is fully within his rights) has left the panel with limited facts.
[58] Valentine breached the 2004 Order (settled with the assistance of counsel) from the moment it was issued, by failing to resign from his existing positions -- the subject of a separate and explicit paragraph in the 2004 Order. He proceeded over the following 19 years, again in clear breach of the 2004 Order, to become a director and/or officer of 36 more Ontario corporations. As found in the Merits Decision, over a dozen of these corporations had substantial banking activity. Only on the eve of the merits hearing in this proceeding did Valentine resign his then-current director and/or officerships. This occurred after all the interlocutory proceedings leading to the merits hearing, during which Valentine was represented by counsel.
[59] In these circumstances, it is fair to call the breach of the D&O Ban by Valentine a flagrant one. It was persistent and open: Valentine is correct to submit that he did not attempt to conceal it. For whatever reason, Valentine determined that he would not be constrained by the D&O Ban. Such conduct, as we have found above, is very serious and should attract a serious sanction.
[60] We note that Valentine did attempt to adduce evidence of his understanding of the D&O Ban indirectly through the Commission's investigator. However, we rejected that attempt for the reasons explained in the Merits Decision.{12}
[61] Just as we have determined that the Commission's proposed administrative penalty for breach of the D&O Ban of $1,000,000 is too high, we conclude that Valentine's proposed administrative penalty of $200,000 is too low.
[62] There is an element of disregard for the rule of law which makes breaches of a Tribunal order particularly serious. In this case the breach was recurrent, persisted over a long period, and there is no mitigating evidence. Valentine had substantial experience in capital markets and was a former registrant, which are aggravating factors. The flagrant nature of the breach calls for an administrative penalty that achieves sufficient specific deterrence of Valentine, and general deterrence of any like-minded individuals who may be weighing a breach of a Tribunal order.
[63] We conclude that an administrative penalty in the amount of $500,000 achieves these goals and shall be ordered to be paid by Valentine in respect of his breach of the D&O Ban.
[64] The Commission submits that an administrative penalty of $1,000,000 for Valentine's Trading Ban breaches is also fair and proportionate to Valentine's conduct given the gains received by Valentine, directly or indirectly, through his corporations.
[65] The Commission asserts that Valentine's lengthy history of securities regulatory violations warrants a significant administrative penalty in order to protect investors and foster fair and efficient capital markets, and that the proposed sanction represents less than 12% of the value of the benefit he received.
[66] The Commission relies on the following decisions in support of its request:
a. Borealis International Inc (Re),{13} where the Tribunal ordered the respondent to pay an administrative penalty of $300,000, which is over 700% of the approximately $42,000 in commissions he had received for his role in sales of securities in breach of a cease trade order.
b. Da Silva (Re),{14} where the Tribunal ordered Da Silva to pay an administrative penalty of $250,000, which is approximately 550% of the $45,280 in securities that Da Silva sold in breach of a cease trade order.
c. Gold-Quest International (Re),{15} where the Tribunal ordered a respondent to pay an administrative penalty of $300,000, representing approximately 85% of the benefit he received in connection to commissions from sales of securities in breach of a cease trade order.
d. MOAG (Re),{16} where the Tribunal ordered administrative penalties of $200,000 and $400,000 respectively against two respondents who breached a cease trade order by selling debentures and raising money from investors which was not repaid.
e. Stinson (Re),{17} a case in which the Tribunal ordered the respondents, jointly and severally, to pay an administrative penalty of $600,000, despite having found no evidence of any direct benefit to the respondents.
[67] Like the administrative penalty requested for the breach of the D&O Ban, Valentine submits that a $1,000,000 administrative penalty for his breaches of the Trading Ban is excessive and not in the public interest.
[68] Valentine submits that the cases relied upon by the Commission to justify the $1,000,000 figure involved multiple breaches of the Act and conduct far more egregious than that of Valentine's, and in any event, ranged from $200,000 to $600,000.
[69] Valentine submits that in determining the appropriate administrative penalty for Valentine's involvement in the Flyp Sale, the following factors are also relevant:
a. Valentine made no attempt to conceal his involvement in the Flyp Sale, and was under the impression that the Trading Ban did not apply to the circumstances of the transaction;
b. Valentine received no compensation respecting the Flyp Sale;
c. Valentine became involved in the Flyp Sale at the request of his friend, MS, who lacked the requisite corporate expertise to understand the transaction; and
d. a dispute arose over the entitlement of the proceeds of the Flyp Sale which was ultimately settled.
[70] With respect to the Stock Secured Financings, Valentine submits that they required the Tribunal to consider a novel legal issue about whether the Stock Secured Financings met the definition of trade. Valentine also submits that aside from the fact of the Trading Ban, the activities engaged in by Valentine were legal business activities (i.e., there was no allegation that any of the activities, in and of themselves, breached any provision of the Act).
[71] Valentine submits that he also aided the Commission in proving its allegations against him, as he admitted to his role in the Stock Secured Financings.
[72] For these reasons, Valentine submits that the appropriate administrative penalty for his breaches of the Trading Ban is $300,000.
[73] As with the administrative penalty for the breach of the D&O Ban, we find the Commission's proposed administrative penalty of $1,000,000 for breaches of the Trading Ban to be too high, and Valentine's proposed administrative penalty of $300,000 to be too low.
[74] We do not agree with Valentine's submission that the Stock Secured Financings presented a novel issue about the definition of a "trade". The structures of the trades involved a number of parties, but when broken out into their constituent parts, each transaction involved at least one clear "trade".{18} The trade was an integral aspect of the Stock Secured Financings as they operated in practice, and as Valentine understood them to operate.{19} Moreover, it was the profit on those trades which formed the basis for Valentine's compensation.{20}
[75] As was the case for the D&O Ban, Valentine elected not to testify and we have no evidence of his understanding of the Trading Ban in respect of the Flyp Sale or otherwise. His attempt to adduce such evidence indirectly was rejected in the Merits Decision.{21}
[76] Valentine received very large amounts of money from his involvement in the Stock Secured Financings, which form the basis of a disgorgement order, as discussed below. Those amounts, in excess of $15,000,000, represent the benefit available to Valentine by breaching the Trading Ban.
[77] We bear in mind the Ontario Court of Appeal's observation that substantial administrative penalties are necessary to remove economic incentives for non-compliance.{22} While we are not persuaded that the percentage-of-profit analysis of cases presented by the Commission is of much assistance, we agree with the directional thrust of those cases that administrative penalties must present a compelling downside to offset the potential upside of a breach.
[78] Valentine is correct that the cases relied upon by the Commission involve conduct that in some respects is more serious than Valentine's. However, we have determined that Valentine's conduct is very serious, involving as it does (in respect of the Stock Secured Financings) several transactions over a number of years giving rise to very large payments for Valentine's benefit.
[79] Weighing the sanctioning factors we have already discussed, and particularly in light of the large sums involved and the need for both specific and general deterrence, we conclude that an administrative penalty in the amount of $500,000 shall be ordered to be paid by Valentine in respect of his breaches of the Trading Ban.
[80] The Commission requests that Valentine be ordered to disgorge the $3,257,639.75 and US$10,732,503 he was found in the Merits Decision to have received in connection with his breaches of the Trading Ban. Such an order is authorized by paragraph 10 of s.127(1) of the Act, which refers to disgorgement of "any amounts obtained" as a result of non-compliance with Ontario securities law.
[81] Valentine accepts that the requested disgorgement order is appropriate.
[82] In this case, it is clear to us that the amounts requested by the Commission were obtained by Valentine as a result of his breaches of the Trading Ban. We consider it to be in the public interest for Valentine to disgorge $3,257,639.75 and US$10,732,503.
[83] Section 127.1 of the Act authorizes the Tribunal to order a respondent to pay the costs of an investigation and of the proceeding that follows it, if the respondent has been found to have contravened Ontario securities law. A costs order is designed to reduce the burden on market participants to pay for investigations and enforcement proceedings.
[84] The Commission seeks costs of $343,569.30 against Valentine.
[85] The Commission provided an affidavit outlining costs and disbursements, which shows the costs of the investigation, pre-hearing activities and the merits hearing. The affidavit lists members of the Commission (including outside counsel) who participated in each phase, the hourly rates for their positions (which have been previously approved by the Tribunal), and the time spent by them on each activity. The costs incurred, according to the Commission's affidavit, calculated in this manner added up to $640,723.75, consisting of fees of $416,836.25 and disbursements of $223,887.50.
[86] The Commission noted that this initial figure had already been reduced from its actual costs, by excluding a number of items, including:
a. the time spent by employees in the Case Assessment, E-Discovery & Analytics, and Quasi-Criminal Serious Offences Teams;
b. the time spent by employees who recorded 35 or fewer hours on the matter; and
c. the time spent by Case Leads and Assistant Investigators.
[87] The costs sought, the Commission submits, represent a further discount of over 46% compared to the costs incurred. This reduction is to account for, among other things:
a. time spent by Commission employees to bring external counsel, who were retained six weeks before the start of the merits hearing, up to speed on the file;
b. time spent by external counsel to get up to speed;
c. the Commission's unsuccessful adjournment motion in September 2023;
d. reducing the hourly rate charged by external counsel to the lower government rate; and
e. ending the time claimed for all litigators and investigators at March 20, 2024 (the date of the Merits Reasons).
[88] Although a respondent found to have contravened Ontario securities law should expect to pay costs, a large costs award can reasonably be viewed as punitive. The potential for such an award may adversely affect a respondent's willingness, and ability, to pursue a full defence.{23} Further, as is the case with an administrative penalty, determining the amount of a costs award is not a science. The Tribunal should apply a balanced approach that takes into account various factors.{24}
[89] Previous cases have noted a number of factors which are relevant in determining whether costs being sought are reasonable. Those factors include the seriousness of the misconduct, the complexity of the allegations and the length of the hearing, and the degree of success that the Commission has in establishing its allegations.{25}
[90] The Commission submits that the requested costs order reflects the seriousness and complexity of the breaches in this matter, Valentine's unnecessary complication of the merits hearing by opposing the Commission's reasonable adjournment request, and the Commission's success at proving its allegations against Valentine. Furthermore, as noted above, the Commission stresses that the costs sought are significantly discounted from the costs actually incurred.
[91] Valentine takes issue with the amount of costs requested, and submits a costs award of $175,000 is appropriate given his conduct in the hearing, including several admissions he made at the merits hearing, the Commission's conduct, and a comparison to the costs ordered in a recent Tribunal fraud decision (Feng).
[92] Valentine submits he did nothing to unnecessarily lengthen the duration of the proceeding or obstruct the Commission's investigation but, rather, aided the Commission in proving its allegations through his responses to compelled examinations which were tendered as evidence during the merits hearing. Further, Valentine submits that he only contested one novel legal issue during the merits hearing: whether the Stock Secured Financings met the definition of a "trade".
[93] With respect to the Commission's conduct during the merits hearing, Valentine highlights the following as justifications for lowering the requested costs award:
a. the Commission served on Valentine, in the period leading up to the hearing, a hearing brief containing thousands of documents, but ultimately only 337 documents were entered into the record at the merits hearing; and
b. the Commission's conduct resulted in an unnecessary adjournment motion which the Commission lost and now seeks to use to justify increased costs against Valentine.
[94] Valentine further submits that the merits hearing took place over fewer than four days in total (spread out over seven hearing days to accommodate scheduling challenges). By comparison, in Feng, which was heard by the Tribunal over six days, the Tribunal ordered the respondent to pay approximately $200,000 in costs. Valentine submits that the costs sought in this case, which are 1.5 times greater than that awarded in Feng, would be punitive and outside the range of reasonableness.
[95] We find the approach taken by the Commission in calculating its costs to be proper and the only issue is whether any reduction to the amount sought is appropriate.
[96] The Commission was faced with the unexpected departure of its lead counsel only weeks before the scheduled beginning of the merits hearing. On September 6, 2023, a differently constituted panel denied the Commission's request for an adjournment on this basis, for reasons issued on October 5, 2023.{26} The merits hearing began as scheduled on September 29, 2023, and all evidence was concluded by October 12, after six days of hearing which included some partial days to accommodate witness availability.
[97] A change in counsel is always disruptive, always causes extra effort and cost, and it is always difficult to isolate and extract the cost of the disruption. One can debate its degree, but here, occurring as it did so close to the start of the merits hearing, it was naturally substantial.
[98] The Commission has attempted to reflect the additional cost of the change of counsel. In its costs sought, it has reduced the time spent by internal counsel, and by the new external junior counsel, during what it termed "the litigation phase", by 50%, and has attempted to exclude all time related to the adjournment motion.
[99] We are not persuaded that these reductions, though substantial, adequately reflect the change in counsel. For example, the time of the new external senior counsel was not reduced for time learning the new file, but only for the adjournment motion. The Commission's decision on reductions are not unreasonable, but are also not amenable to any precise verification.
[100] Valentine bore no responsibility for the change in counsel. It is clear that the change caused disruption and increased the Commission's costs in a manner that cannot be quantified with precision. The change also increased the respondent's costs: while the Commission's time on the adjournment motion can be excluded from its claim, that leaves untouched the additional costs Valentine incurred in his response to it. In these circumstances we conclude a modest reduction in the costs sought is appropriate, to reflect the unquantifiable aspects of the late change in counsel.
[101] Another element raised by Valentine deserves comment: the Commission's delivery of a hearing brief with nearly 3,000 documents and an affidavit incorporating approximately 1,500 of them. As Valentine submits, only a fraction of these documents were ultimately entered into evidence.
[102] The Commission responds that, unaware that Valentine would admit two of the three alleged breaches in his opening at the merits hearing, it was obliged to anticipate that it might need the documents to prove all three allegations.
[103] In fact, however, that is essentially what occurred at the merits hearing. As commented upon in the Merits Decision,{27} Valentine purported to admit the allegations, but not the facts which underpinned the allegations. As a result, the Commission was required to introduce all the necessary evidence to establish all three of the breaches, which included substantial documentary evidence. Even so, that evidence engaged only a fraction of the documents in the hearing brief.
[104] We are persuaded that the Commission did not "cull" adequately the documents it would rely on, prior to delivery of the hearing brief. It may be that this was a result of the late change in counsel, and is an element of the unquantifiable disruption we note above.
[105] Advances in technology make it increasingly easy to create, collect, aggregate and deliver massive numbers of electronic documents. To achieve just, expeditious and cost-effective proceedings, the parties bear a responsibility to apply reasoned judgement in the preparation of hearing briefs and documentary evidence. They should exclude documents which they conclude will not be necessary at the hearing, on any reasonable scenario. Obviously, counsel will err on the side of inclusion, to be prepared for the unexpected twists and turns in a hearing. That is expected and prudent. However, prudence is not reflected by uncritical inclusion of every available electronic document.
[106] We do not conclude that this is what the Commission did in this case. We are persuaded, though, that too light a touch was brought to whatever filtering was done of the disclosure documents in the preparation of the hearing brief and affidavit. The gap between the number of documents in the brief and those ultimately used in the hearing, to establish all three breaches, is too wide.
[107] Over-inclusion of documents also puts a respondent to the added expense of unnecessary review. It can also lengthen proceedings. In this case, the better part of the first day of the merits hearing was consumed with discussion of how to deal with the voluminous materials referenced in the investigator's affidavit.
[108] We conclude that a modest reduction should be made in the costs sought by the Commission, to reflect the unquantifiable effects of over-inclusion of documents in the hearing brief.
[109] Valentine seeks credit for having done "nothing to unnecessarily lengthen the duration of the proceeding. To the contrary his conduct shortened the merits hearing." We view it as a given that parties should do nothing to unnecessarily lengthen a proceeding.
[110] As noted, Valentine did purport to admit two of the three allegations against him. In the ordinary case, a respondent's admission of allegations should be recognized as being likely to make a hearing more efficient. In this case, however, we find that Valentine's admissions did not have that effect. They were only made at the opening of the merits hearing after all hearing preparation was complete. They were qualified in a manner which required the Commission to lead full evidence to establish all the breaches. The admissions, and Valentine's conduct, did nothing to materially reduce, or extend, the merits hearing duration, and they have no weight in our assessment of costs.
[111] Valentine cites Feng as a recent Tribunal authority, where a hearing that took six days gave rise to a costs order of approximately $207,000. In the present case, he submits, the time in evidence was the equivalent of four days. By comparison to Feng, a costs order in the amount sought by the Commission would be punitive and outside the range of reasonableness.
[112] We do not agree. While a degree of comparability of costs for Tribunal proceedings is desirable, each case depends on the circumstances it presents. It is difficult to compare proceedings based on hearing days (or any other single factor) alone.
[113] This proceeding was originally scheduled for 15 hearing days. The Commission submitted it should take no more than 10, and that proved to be correct. Regardless, the parties anticipated a lengthy hearing. Both parties' counsel deserve credit for conducting their cases in a manner that reduced the hearing time to less than their estimates.
[114] In Feng, the Commission sought costs of approximately $265,000, reduced from costs incurred of approximately $337,000. The Tribunal granted costs of approximately $207,000, which it characterized as a total 40% discount from the costs incurred.
[115] Behind those figures, though, are the elements of how complex the allegations, investigation and hearing may have been in the circumstances unique to that case.
[116] In this proceeding, the D&O Ban implicated 38 corporations over a 19-year period; the Stock Secured Financings involved numerous offshore transactions, communications with foreign regulatory authorities, and multiple parties. It is not difficult to infer that the investigation was complicated and time consuming. We have no basis on which to question the propriety of the Commission's time spent on this proceeding.
[117] We conclude that the Commission's costs are fairly calculated and reasonable but should be subject to modest reductions to reflect:
a. the unquantifiable disruption occasioned by the late change in counsel; and
b. the insufficient discipline in culling documents included in the hearing brief.
[118] As a result, we order Valentine to pay the Commission's costs in the amount of $300,000.
[119] For the above reasons, we order that:
a. pursuant to paragraph 2 of subsection 127(1) of the Act, trading in any securities or derivatives by Valentine shall cease permanently;
b. pursuant to paragraph 2.1 of subsection 127(1) of the Act, the acquisition of any securities by Valentine is prohibited permanently;
c. pursuant to paragraph 3 of subsection 127(1) of the Act, any exemptions contained in Ontario securities law do not apply to Valentine permanently;
d. pursuant to paragraphs 7, 8.1 and 8.3 of subsection 127(1) of the Act, Valentine shall immediately resign from any positions that he holds as a director or officer of any issuer or registrant, including an investment fund manager;
e. pursuant to paragraphs 8, 8.2 and 8.4 of subsection 127(1) of the Act, Valentine is permanently prohibited from becoming or acting as a director or officer of any issuer or registrant, including an investment fund manager;
f. pursuant to paragraph 8.5 of subsection 127(1) of the Act, Valentine is permanently prohibited from becoming or acting as a registrant, including as an investment fund manager, or as a promoter;
g. pursuant to paragraph 9 of subsection 127(1) of the Act, Valentine shall pay:
i. an administrative penalty of $500,000 for his breach of the D&O Ban; and
ii. an administrative penalty of $500,000 for his breaches of the Trading Ban;
h. pursuant to paragraph 10 of subsection 127(1) of the Act, Valentine shall disgorge to the Commission $3,257,639.75 and US$10,732,503; and
i. pursuant to section 127.1 of the Act, Valentine shall pay to the Commission $300,000 for the costs of the investigation and hearing.
Dated at Toronto this 30th day of September, 2024
{1} Valentine (Re), 2024 ONCMT 11
{2} RSO 1990, c S.5
{3} Unless otherwise indicated, all references to currency in these reasons are to Canadian dollars.
{4} Committee for the Equal Treatment of Asbestos Minority Shareholders v Ontario (Securities Commission), 2001 SCC 37 at para 42
{5} Belteco Holdings Inc (Re), (1998) 21 OSCB 7743 at 7746
{6} Stinson (Re), 2023 ONCMT 50 at para 18
{7} Pro-Financial Asset Management (Re), 2018 ONSEC 18 at para 84
{8} Rowan v Ontario (Securities Commission), 2012 ONCA 208 (Rowan) at para 49
{9} Jardine (Re), 2016 BCSECCOM 82 at para 38; Dunn (Re), 2023 BCSECCOM 251 at para 59, leave to appeal to BCCA refused, 2023 BCCA 451; Malone (Re), 2016 BCSECCOM 334 at para 25; Alexander (Re), 2007 BCSECCOM 773 at para 55, aff'd, 2013 BCCA 111; Spaetgens (Re), 2017 ABASC 38, var'd, 2018 ABCA 410; Cadman (Re), 2015 ABASC 836
{10} 2007 BCSECCOM 773 (Alexander)
{11} 2015 ABASC 836 (Cadman)
{12} Merits Decision at paras 36-37
{13} 2011 ONSEC 2 at para 91
{14} 2012 ONSEC 32 at paras 1 and 17
{15} 2010 ONSEC 30 at para 110
{16} 2020 ONSEC 29 at paras 21 and 24
{17} 2023 ONCMT 50 at paras 11 and 48
{18} Merits Decision at para 109
{19} Merits Decision at para 110
{20} Merits Decision at para 115
{21} Merits Decision at para 51
{22} Rowan at para 49
{23} Feng (Re), 2023 ONCMT 12 (Feng) at para 96
{24} Solar Income Fund Inc (Re), 2023 ONCMT 3 at para 166
{25} Paramount Equity Financial Corporation (Re), 2023 ONCMT 20 at para 132
{26} Valentine (Re), 2023 ONCMT 33
{27} Merits Decision at paras 29-30 and 40
Cheelcare Inc. (formerly Departure Bay Capital Corp.) -- s. 1(11)(b)
s. 1(11)(b) -- order that the issuer is a reporting issuer for the purposes of Ontario securities law -- Issuer is already a reporting issuer in British Columbia and Alberta -- Issuer's securities listed for trading on the TSX Venture Exchange -- Continuous disclosure requirements in British Columbia and Alberta are substantially the same as those in Ontario -- Issuer has a significant connection to Ontario.
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(11)(b).
(Paragraph 1(11)(b))
UPON the application of the Applicant to the Ontario Securities Commission (the Commission) for an order (the Order) pursuant to paragraph 1(11)(b) of the Act that, for the purposes of Ontario Securities law, the Applicant is a reporting issuer in Ontario;
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON the Applicant having represented to the Commission as follows:
1. The Applicant is a company governed by the Business Corporations Act (British Columbia), with its head and registered office located at Suite 228, 1122 Mainland St., Vancouver, British Columbia, V6B 5L1, Canada.
2. The Applicant was incorporated under the Business Corporations Act (British Columbia) on February 16, 2022 under the name "Departure Bay Capital Corp."
3. On July 7, 2025 the Applicant completed in "Qualifying Transaction" (as that term is defined in TSX Venture Exchange Policy 2.4 -- Capital Pool Companies) whereby the Applicant, among other things: (i) effected the amalgamation of its wholly-owned subsidiary, 16729053 Canada Inc. with 9302204 Canada Inc.; (ii) changed its name from "Departure Bay Capital Corp." to "Cheelcare Inc."; and (iii) had its common shares (Common Shares) resume trading on the TSX Venture Exchange (TSXV) as a Tier 2 Technology Issuer on under the symbol "CHER" on July 16, 2025.
4. The authorized share capital of the Applicant consists of an unlimited number of Common Shares of which 19,629,737 Common Shares were issued and outstanding as of September 30, 2025.
5. The Common Shares have traded on the TSXV since October 26, 2022. As of the date hereof, the Common Shares are not traded on any other stock exchange or trading or quotation system.
6. No other securities of the Applicant are listed, traded or quoted on any stock exchange or trading or quotation system.
7. The Applicant is a reporting issuer in Alberta and British Columbia and is not a reporting issuer in any other jurisdiction. The Applicant became a reporting issuer in Alberta and British Columbia on August 3, 2022.
8. The Applicant's principal regulator is the British Columbia Securities Commission. The Commission will be the principal regulator of the Applicant once it has obtained reporting issuer status in Ontario. Upon granting of the Order, the Applicant will amend its System for Electronic Document Analysis and Retrieval + (SEDAR+) profile to indicate that the Commission is its principal regulator.
9. The Applicant is subject to the continuous disclosure requirements of the Securities Act (Alberta) (the Alberta Act) and the Securities Act (British Columbia) (the BC Act). The continuous disclosure requirements under the Alberta Act and the BC Act are substantially the same as the continuous disclosure requirements under the Act.
10. The Applicant is not on the lists of defaulting reporting issuers maintained pursuant to the Alberta Act or the BC Act or the rules and regulations made under either statute, and is not in default of any requirement of either the Alberta Act or the BC Act or the rules and regulations made under either statute.
11. The Applicant has not been the subject of any enforcement actions by the Alberta or British Columbia securities commissions or by the TSXV, and the Applicant is not in default of any requirement of the Act, the Alberta Act, or the British Columbia Act.
12. The continuous disclosure materials filed by the Applicant are available on SEDAR+.
13. The Applicant is not in default under any of the rules, regulations or policies of the TSXV.
14. Pursuant to section 18 of Policy 3.1 -- Directors, Officers, Other Insiders & Personnel and Corporate Governance of the TSXV Manual, a listed-issuer, which is not otherwise a reporting issuer in Ontario, must assess whether it has a "Significant Connection to Ontario" (as defined in Policy 1.1 -- Interpretation of the TSXV Manual) and, upon becoming aware that it has a significant connection to Ontario, promptly make a bona fide application to the Commission to be designated a reporting issuer in Ontario.
15. The Applicant has determined that it has a "Significant Connection to Ontario" as:
a. registered holders and beneficial holders resident in Ontario beneficially own more than 10% of total number of outstanding equity securities beneficially owned by the registered holders and beneficial holders of the Applicant; and
b. the Applicant's mind and management is principally located in Ontario as its Chief Executive Officer and three of its five directors are residents of Ontario.
16. Neither the Applicant nor any of its officers, directors or any shareholders holding sufficient securities of the Applicant to affect materially the control of the Applicant has:
a. been subject to any penalties or sanctions imposed by a court relating to Canadian securities legislation or by a Canadian securities regulatory authority;
b. entered into a settlement agreement with a Canadian securities regulatory authority; or
c. been subject to any penalties or sanction imposed by a court or regulatory body that would be likely to be considered important to a reasonable investor making an investment decision.
17. Neither the Applicant nor any of its officers, directors or any shareholders holding sufficient securities of the Applicant to affect materially the control of the Applicant, is or has been subject to;
a. any known ongoing or concluded investigations by:
i. a Canadian securities regulatory authority, or
ii. a court or regulatory body, other than a Canadian securities regulatory authority, that would be likely to be considered important to a reasonable investor making an investment decision; or
b. any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or the appointment of a receiver, receiver-manager or trustee, within the preceding 10 years.
18. None of the officers or directors of the Applicant or any shareholder holding sufficient securities of the Applicant to affect materially the control of the Applicant, is or has been at the time of such event an officer or director of any other issuer which is or has been subject to:
a. any cease trade order or similar order, or order that denied access to any exemptions under Ontario securities law, for a period of more than 30 consecutive days, within the preceding 10 years; or
b. any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or appointment of a receiver, receiver-manager or trustee, within the preceding 10 years.
AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;
IT IS HEREBY ORDERED pursuant to subsection 1(11)(b) of the Act that the Applicant is deemed to be a reporting issuer for the purposes of Ontario securities law.
DATED at Toronto on this 21st day of October, 2025.
OSC File #: 2025/0478
Mount Logan Capital Intermediate LLC
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- The issuer ceased to be a reporting issuer under securities legislation.
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
October 27, 2025
The principal regulator in the Jurisdiction has received an application from the Filer for an order under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Order Sought).
Under the Process for Cease to be a Reporting Issuer Applications (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 4C.5(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
This order is based on the following facts represented by the Filer:
1. the Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets;
2. the outstanding securities of the Filer, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide;
3. no securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in National Instrument 21-101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported;
4. the Filer is applying for an order that the Filer has ceased to be a reporting issuer in all of the jurisdictions of Canada in which it is a reporting issuer; and
5. the Filer is not in default of securities legislation in any jurisdiction.
The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.
The decision of the principal regulator under the Legislation is that the Order Sought is granted.
OSC File #: 2025/0605
Venable Park Investment Counsel Inc. and R.N. Croft Financial Group Inc.
Under paragraph 4.1(1) (a) and (b) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations a registered firm must not permit an individual to act as a dealing, advising or associate advising representative of the registered firm if the individual acts as an officer, partner or director of another registered firm that is not an affiliate, or if the individual is registered as a dealing, advising or associate advising representative of another registered firm. One registered firm is acquiring client accounts of another registered firm prior to the latter's surrender of its registration as a portfolio manager, pursuant to a proposed transaction. The Filers have valid business reasons for the individual to be registered with both firms; the individual will have sufficient time to adequately serve both firms; and there are policies and procedures in place to handle any material conflicts of interest. The firms are exempted from the prohibition in paragraphs 4.1(1)(a) and (b) for a limited time period.
Multilateral Instrument 11-102 Passport System, s. 4.7.
National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, ss. 4.1 and 15.1.
October 22, 2025
The principal regulator in the Jurisdiction (the Decision Maker) has received an application from the Filers for a decision under the securities legislation of the Jurisdiction (the Legislation), pursuant to section 15.1 of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103), for an exemption from the restrictions in paragraphs 4.1(1)(a) and (b) of NI 31-103 to permit Cory Venable (the Representative) to be registered as an advising representative of VPIC while being registered as an advising representative of CFG, and to act as an officer and director of VPIC while being registered as an advising representative of CFG, for a limited period of time following the acquisition of VPIC by CFG, which includes the acquisition of all client accounts of VPIC by CFG (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
a. the Ontario Securities Commission (OSC) is the principal regulator of the Filers for this application, and
b. the Filers have 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, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Québec, Saskatchewan.
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filers:
VPIC
1. VPIC is a corporation existing under the laws of the Province of Ontario with its head office in Ontario. VPIC is registered as a portfolio manager in Alberta, British Columbia, Nova Scotia, and Ontario. Its principal regulator is the OSC.
2. VPIC uses its portfolio manager category of registration to primarily offer discretionary investment advisory services to its clients.
3. VPIC is not in default of any requirement of securities legislation in any jurisdiction of Canada.
4. The Representative is registered as an advising representative of VPIC. The Representative is also an officer and director of VPIC.
CFG
5. CFG is a corporation existing under the laws of the Province of Ontario with its head office in Ontario. CFG is registered as a portfolio manager in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Québec, and Saskatchewan, and as an investment fund manager in Ontario, Québec and Newfoundland and Labrador. Its principal regulator is the OSC.
6. CFG uses its investment fund manager category of registration to manage the day-to-day operations of proprietary funds and uses its portfolio manager category of registration to provide investment advice to clients, including managed accounts and investment funds.
7. CFG is not in default of any requirement of securities legislation in any jurisdiction of Canada.
The Transaction
8. The Filers are each independently owned and are not affiliates of one another.
9. The application for the Exemption Sought is made in relation to the transfer of all client accounts of VPIC to CFG (the Transaction). In connection with the Transaction, the Representative is seeking registration as an advising representative of CFG under the securities legislation of each of the jurisdictions where CFG is registered.
10. The OSC provided its non-objection to the Transaction on October 15, 2025, thus allowing VPIC to initiate the transfer of client accounts in relation to the Transaction to CFG (the Account Transfer Date). VPIC will transfer client accounts to CFG in a timely manner.
11. Upon the completion of the transfer or closure of all client accounts, VPIC will apply to surrender its registration as a portfolio manager.
Dual Registration
12. During the period from the Account Transfer Date to the date that the firm surrender of VPIC is accepted by the OSC, VPIC and CFG require the Representative to be:
a. an officer, director and advising representative of VPIC to facilitate the orderly wind-up of VPIC's registerable business and operations and ensure appropriate client account transfers; and
b. an advising representative of CFG, to provide advisory services in relation to former clients of VPIC who will become clients of CFG that are similar to the advisory services the Representative performed on behalf of VPIC.
13. After the Account Transfer Date, the Representative, as VPIC's officer and director, will act in such capacity only to comply with regulatory requirements, including working to transfer VPIC's client accounts to CFG or to another registered firm.
14. The Filers are aware that not all client accounts will be able to move from VPIC to CFG at the same time and as such, some client accounts would be reassigned to the Representative on a temporary basis. In respect of each client account reassigned to the Representative on a temporary basis, the Representative will comply with all obligations set out in NI 31-103, including know your client, know your product and suitability determination requirements.
15. The Representative will have sufficient time and resources to adequately meet his obligations to each of VPIC and CFG. The chief compliance officer (CCO) and ultimate designated person (UDP) of each Filer will ensure that the Representative has sufficient time and resources to adequately serve the respective Filer and its clients.
16. The Filers have in place policies and procedures to address, in the best interest of clients, any material conflicts of interest that may arise as a result of the dual registration of the Representative.
17. The Representative will be subject to supervision by, and the applicable compliance requirements of, both Filers.
18. CFG has compliance and supervisory policies and procedures in place to monitor the conduct of its representatives, including the Representative, and to ensure CFG addresses any material conflicts of interest in the best interest of clients.
19. CFG will supervise the activities that the Representative will conduct on behalf of VPIC in the same way that it does other outside activities of its registered individuals, including by holding meetings regularly with him and obtaining regular status reports from him.
20. The relationship between the Filers and the fact that the Representative is dually registered with both Filers will be fully disclosed in writing to clients and prospective clients of each Filer that deal with the Representative.
21. In the absence of the Exemption Sought, the Filers would be prohibited under paragraphs 4.1(1)(a) and 4.1(1)(b) of NI 31-103 from permitting the Representative to be registered as an advising representative of VPIC, or acting as an officer or director of VPIC, while also being registered as an advising representative of CFG.
22. The Representative will act in the best interest of all clients of each Filer and will deal fairly, honestly and in good faith with the clients of each Filer.
The Decision Maker in respect of the Exemption Sought is satisfied that the decision meets the test set out in the Legislation.
The decision of the Decision Maker under the Legislation is that the Exemption Sought is granted provided that:
a. the Representative is subject to supervision by, and the applicable compliance requirements of, both Filers;
b. the CCO and UDP of each Filer ensures that the Representative has sufficient time and resources to adequately service each Filer and its respective clients;
c. the Filers each have adequate policies and procedures in place to address material conflicts of interest that may arise as a result of the dual registration of the Representative in the best interest of clients;
d. the relationship between the Filers and the fact that the Representative is dually registered with both of them is fully disclosed in writing to clients and prospective clients of each of them that deal with the Representative; and
e. the Exemption Sought expires on the date on which the registration of VPIC is revoked.
Application File #: 2025/0418
Franklin Templeton Investments Corp. and The Top Fund
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- A mutual fund that is not a reporting issuer is granted a 92-day extension of the annual financial statement filing and delivery deadlines and a 32-day extension of the interim financial statement filing and delivery deadlines under NI 81-106 -- The mutual fund invests substantially all of its assets in an underlying fund organized under the laws of the Grand Duchy of Luxembourg -- The underlying fund is subject to laws that require its audited annual financial statements to be made available within six months of its financial year-end and unaudited semi-annual financial statements to be made available within three months of its most recent semi-annual period.
National Instrument 81-106 Investment Fund Continuous Disclosure, ss. 2.2, 2.4, 5.1(2)(a), 5.1(2)(b), 17.1.
October 21, 2025
The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of Franklin BSP Real Estate Debt Fund (the Top Fund), for a decision under the securities legislation of the Jurisdiction (the Legislation), exempting the Top Fund from:
(a) the requirement in section 2.2 of National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106) that the Top Fund file its audited annual financial statements and auditor's report (the Annual Financial Statements) on or before the 90th day after the Top Fund's most recently completed financial year (the Annual Filing Deadline);
(b) the requirement in paragraph 5.1(2)(a) of NI 81-106 that the Top Fund deliver to securityholders its Annual Financial Statements by the Annual Filing Deadline (the Annual Delivery Requirement);
(c) the requirement in section 2.4 of NI 81-106 that the Top Fund file its unaudited interim financial statements (the Interim Financial Statements) on or before the 60th day after the Top Fund's most recently completed interim period (the Interim Filing Deadline); and
(d) the requirement in paragraph 5.1(2)(b) of NI 81-106 that the Top Fund deliver to securityholders its Interim Financial Statements by the Interim Filing Deadline (the Interim Delivery Requirement);
(collectively, 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 (the Principal Regulator) for this application; 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 (the Other Jurisdictions and, together with the Jurisdiction, the Canadian Jurisdictions).
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
The decision is based on the following facts represented by the Filer:
The Filer
1. The Filer is a corporation amalgamated under the laws of the Province of Ontario. The Filer's head office is located in Toronto, Ontario.
2. The Filer is registered as:
(a) an investment fund manager in Alberta, British Columbia, Manitoba, Newfoundland & Labrador, Nova Scotia, Ontario and Québec;
(b) a portfolio manager, mutual fund dealer and exempt market dealer in each province of Canada and the Yukon territory; and
(c) a commodity trading manager in Ontario.
3. The Filer is the investment fund manager and portfolio manager of the Top Fund.
4. The Filer is not in default of securities legislation in any of the Canadian Jurisdictions.
The Top Fund
5. The Top Fund is a trust formed under the laws of the Province of Ontario.
6. The Top Fund is a mutual fund for purposes of the securities legislation of the Canadian Jurisdictions.
7. Securities of the Top Fund are offered for sale to qualified investors in provinces and territories of Canada pursuant to exemptions from the prospectus requirements under National Instrument 45-106 Prospectus Exemptions (NI 45-106) or equivalent exemptions.
8. The Top Fund is not a reporting issuer in any of the Canadian Jurisdictions.
9. The Top Fund has a financial year end of December 31.
10. The investment objective of the Top Fund is to invest substantially all of its investable assets in shares of Franklin BSP Real Estate Debt Fund (the Underlying Fund), which is a sub-fund of Franklin BSP Private Markets Fund SICAV SA. The Underlying Fund is organized under the laws of the Grand Duchy of Luxembourg. The Underlying Fund is part of an umbrella investment program referred to as FBSP. The investment objective of the Underlying Fund is to seek long-term capital appreciation and to generate current income, and the Underlying Fund seeks to achieve this investment objective by investing in portfolio of commercial real estate (CRE) debt investments, focused on senior secured, CRE loans across various Metropolitan Statistical Areas in the United States, and other real-estate related debt and equity investments, which may include subordinated debt. The financial year end of the Underlying Fund is December 31.
11. Waystone Management Company (Lux) S.A. (Waystone) is the alternative investment fund manager of the Underlying Fund. In the future, it is intended for Franklin Templeton International Services S.à r.l. (FTIS), a Luxembourg limited liability company (société à responsabilité limitée), to replace Waystone as alternative investment fund manager after the authorization of FTIS by the Luxembourg supervisory authority to perform this function for the Underlying Fund. FTIS is an affiliate of the Filer.
12. The Filer believes that the Top Fund investing in the Underlying Fund offers benefits not available through a direct investment in the companies, other issuers or assets held by the Underlying Fund.
13. Securities of the Top Fund will be typically redeemable at various intervals, as will securities of the Underlying Fund. As the Top Fund has a long-term investment horizon, the Top Fund will be able to manage its own liquidity requirements taking into consideration the frequency at which securities of the Underlying Fund may be redeemed.
14. The net asset value of the Top Fund will be calculated no less frequently than monthly. Securityholders of the Top Fund will be provided with the net asset value of the Top Fund on a no less frequently than monthly basis.
15. The Top Fund's holdings of securities of the Underlying Fund will be disclosed in the Top Fund's Annual Financial Statements and Interim Financial Statements.
Financial Statement Filing and Delivery Requirements
16. Section 2.2 and paragraph 5.1(2)(a) of NI 81-106 require the Top Fund to file and deliver its Annual Financial Statements by the Annual Filing Deadline. As the financial year-end for the Top Fund is December 31, the Annual Filing Deadline for the Annual Financial Statements would be March 31, (or March 30 in a leap year), as applicable.
17. Section 2.4 and paragraph 5.1(2)(b) of NI 81-106 require the Top Fund to file and deliver its Interim Financial Statements by the Interim Filing Deadline. As the Top Fund's interim period-end is June 30, the Interim Filing Deadline for the Interim Financial Statements would be August 29.
18. Section 2.11 of NI 81-106 provides an exemption from the filing requirements of the Annual Financial Statements and the Interim Financial Statements if, among other things, the Top Fund delivers such statements in accordance with Part 5 of NI 81-106 by the Annual Filing Deadline and the Interim Filing Deadline, as applicable. Subject to the Exemption Sought being granted, the Filer intends to rely on this exemption to not file its Annual Financial Statements and Interim Financial Statements.
19. The Underlying Fund is subject to financial reporting deadlines that extend beyond those applicable to the Top Fund under NI 81-106. The laws of the Grand Duchy of Luxembourg require the audited annual financial statements of the Underlying Fund to be made available within six (6) months of its financial year-end and unaudited semi-annual financial statements to be made available within three (3) months of its most recent semi-annual period.
20. In order to formulate an opinion on the financial statements of the Top Fund, the Top Fund's auditor requires audited financial statements of the Underlying Fund as at the date of the financial year-end of the Top Fund in order to audit the information contained in the Top Fund's Annual Financial Statements.
21. The Top Fund will not be able to obtain the audited annual financial statements and interim financial reports of the Underlying Fund sooner than other securityholders of the Underlying Fund receive such statements and reports. The Top Fund expects to receive the audited annual financial statements and interim financial reports of the Underlying Fund two to five business days prior to the end of the six- and three-month periods, respectively, that follow the Underlying Fund's financial year-end and most recent semi-annual period.
22. The auditor of the Top Fund has advised the Filer that they will be unable to complete the audit of the Top Fund's Annual Financial Statements until the audited financial statements of the Underlying Fund are completed and available to the Top Fund.
23. Absent the Exemption Sought, the Top Fund will be unable to meet each Annual Filing Deadline and Annual Delivery Requirement and each Interim Filing Deadline and Interim Delivery Requirement. The Filer expects this timing delay in the completion of the Top Fund's Annual Financial Statements and Interim Financial Statements to occur every year for the foreseeable future.
24. The Top Fund therefore seeks an extension of the Annual Filing Deadline and the Annual Delivery Requirement to permit delivery within 182 days of the Top Fund's most recently completed financial year-end, to enable the Top Fund's auditors to first receive the audited annual financial statements and auditor's report of the Underlying Fund so as to be able to prepare the Top Fund's Annual Financial Statements.
25. The Top Fund seeks an extension of the Interim Filing Deadline and the Interim Delivery Requirement to permit delivery within 92 days of the Top Fund's most recently completed interim period, to enable the Top Fund to first receive the interim financial reports of the Underlying Fund so as to be able to determine the net asset value of the Underlying Fund and prepare the Top Fund's Interim Financial Statements.
26. The offering memorandum of the Top Fund that will be provided to investors will disclose that: (i) the Annual Financial Statements for the Top Fund will be delivered to each investor within 182 days of the Top Fund's financial year end; and (ii) the Interim Financial Statements for the Top Fund will be delivered to each investor within 92 days following the end of each interim period of the Top Fund.
27. The Filer will notify securityholders of the Top Fund that it has received, and intends to rely on, relief from the Annual Filing Deadline and Annual Delivery Requirement and the Interim Filing Deadline and the Interim Delivery Requirement.
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 to the Top Fund provided that:
(a) The Top Fund has a financial year ending December 31.
(b) The Top Fund's investment strategy is to primarily invest the Top Fund's investable assets directly or indirectly in securities of the Underlying Fund whose investment objective is compatible with the Top Fund's investment objective.
(c) No less than 25% of the total assets of the Top Fund as at its financial year end of December 31 are invested in the Underlying Fund which has a financial year end that corresponds to the Top Fund and is subject to laws of its jurisdiction that requires or permits annual financial statements of the Underlying Fund to be made available within 182 days of its financial year end and interim financial statements of the Underlying Fund to be made available within 92 days of its most recent interim period.
(d) The offering memorandum provided to prospective investors regarding the Top Fund discloses that, subject to regulatory approval:
(i) the Annual Financial Statements for the Top Fund will be delivered on or before the 182nd day after the Top Fund's most recently completed financial year; and
(ii) the Interim Financial Statements of the Top Fund will be delivered on or before the 92nd day after the Top Fund's most recently completed interim period.
(e) The Top Fund notifies its securityholders that the Top Fund has received and intends to rely on relief from the filing and delivery requirements under section 2.2, section 2.4, paragraph 5.1(2)(a) and paragraph 5.1(2)(b) of NI 81-106.
(f) The Top Fund is not a reporting issuer in any Canadian Jurisdiction, and the Filer has the necessary registrations to carry out its operations in each Canadian Jurisdiction in which it operates.
(g) The conditions in section 2.11 of NI 81-106 will be met, except for subsection 2.11(b), and:
(i) the Annual Financial Statements will be delivered to securityholders of the Top Fund in accordance with Part 5 of NI 81-106 on or before the 182nd day after the Top Fund's most recently completed financial year; and
(ii) the Interim Financial Statements will be delivered to securityholders of the Top Fund in accordance with Part 5 of NI 81-106 on or before the 92nd day after the Top Fund's most recently completed interim period.
(h) This decision terminates within one year of the coming into force of any amendment to NI 81-106 or other rule that modifies how the Annual Filing Deadline, the Annual Delivery Requirement, the Interim Filing Deadline or the Interim Delivery Requirement applies in connection with investment funds that are not reporting issuers.
Application File #: 2025/0556
SEDAR+ File #: 6339164
TD Waterhouse Private Investment Counsel Inc. and TD Waterhouse Canada Inc.
Under paragraph 4.1(1)(b) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations a registered firm must not permit an individual to act as a dealing, advising or associate advising representative of the registered firm if the individual is registered as a dealing, advising or associate advising representative of another registered firm. The Filers are affiliated entities and have valid business reasons for the individuals to be registered with both firms, namely for the purpose of facilitating a business consolidation. The Filers will not permit the individuals to engage in registerable activities on behalf of both Filers at the same time. The Filers have adequate policies and procedures in place to address any conflicts of interest that may arise from the dual registration of the Representatives and will deal appropriately with any such conflicts. The Filers are exempted from the prohibition on a time-limited basis.
Multilateral Instrument 11-102 Passport System, s. 4.7.
National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, ss. 4.1 and 15.1.
October 17, 2025
The principal regulator in the Jurisdiction (the Decision Maker) has received an application from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation), pursuant to section 15.1 of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103), for an exemption from the restrictions in paragraph 4.1(1)(b) of NI 31-103 to permit advising representatives, associate advising representatives and dealing representatives of TD Waterhouse Private Investment Counsel Inc. (PIC) as of the date of the decision (collectively, the Representatives) to be registered as dealing representatives of TD Waterhouse Canada Inc. (TDW) for a limited period of time to facilitate a proposed transaction (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
a. the Ontario Securities Commission (OSC) is the principal regulator of the Filers for this application; and
b. the Filers have 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, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Québec, Saskatchewan and Yukon (collectively with Ontario, the Jurisdictions).
Terms defined in National Instrument 14-101 Definitions and MI 11-102 Passport System have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filers:
PIC
1. PIC is a corporation incorporated under the Canada Business Corporations Act. It is registered as a portfolio manager and exempt market dealer in the Jurisdictions. The head office of PIC is located in Toronto, Ontario.
2. PIC provides high net worth clients with customized investment strategies through the exercise of discretionary investment authority that is granted to PIC by such clients.
3. PIC is not in default of any requirement of securities legislation in the Jurisdictions.
TDW
4. TDW is a corporation incorporated under the Business Corporations Act (Ontario). It is registered as an investment dealer in the Jurisdictions and is a Canadian Investment Regulatory Organization (CIRO) Dealer Member. The head office of TDW is located in Toronto, Ontario.
5. TDW conducts its business as an investment dealer through three distinct divisions, one of which is TD Wealth Private Investment Advice (PIA). PIA is a full-service brokerage and managed account division that provides brokerage services, advice, and access to discretionary advice, regarding a full range of investment products to high-net-worth individuals.
6. TDW is not in default of any requirement of securities legislation in the Jurisdictions.
The Transaction
7. TDW, PIC and TD Asset Management Inc. (TDAM) are affiliates, and they are all directly or indirectly owned by The Toronto-Dominion Bank.
8. Under the terms of a proposed transaction, TDW will acquire all of the issued and outstanding shares of PIC from TDAM for newly created preferred shares of TDW (the Business Consolidation). Upon completion of the Business Consolidation, the registrations of PIC in the Jurisdictions will be surrendered. PIC will also undergo a voluntary wind-up and dissolution, pursuant to which its assets and liabilities will be transferred to TDW.
9. The Business Consolidation is anticipated to occur on or about February 7, 2026, subject to regulatory approvals.
10. Pursuant to the Business Consolidation, the discretionary portfolio management business and operations of PIC will be consolidated with that of PIA. Accordingly, all PIC clients will be transitioned to the PIA platform. The clients, however, will be served by the same Representatives that served them at PIC, as the Representatives will seek to be registered with TDW as dealing representatives, pursuant to National Instrument 33-109 Registration Information. The Representatives will also be registered in the CIRO approval categories of Portfolio Manager and Associate Portfolio Manager, as applicable.
Dual Registration
11. As of the date of the decision, there are 147 Representatives. Due to technological constraints arising from the change of the registration categories of the Representatives to the applicable CIRO approval categories of Portfolio Manager and Associate Portfolio Manager, the Representatives will not have their registrations transferred from PIC to TDW using a bulk transfer through the National Registration Database at the time of the Business Consolidation. Instead, the registration of each Representative will be transferred from PIC to TDW over an approximately four-month period prior to the Business Consolidation (the Interim Period) during which the Representatives will be registered at both PIC and TDW.
12. Registration of the Representatives at both PIC and TDW will only occur as a result of efforts to accommodate the transfer of the client accounts and the Representatives from PIC to TDW. In particular, during the Interim Period, TDW will not permit any of the Representatives to engage in registerable activities on behalf of TDW. Furthermore, PIC clients will not be transferred to the PIA platform until the Business Consolidation has occurred. Upon completion of the Business Consolidation, the registrations of the Representatives with PIC in the Jurisdictions will be surrendered.
13. If, at the time of the Business Consolidation, a PIC client account has not been transferred to TDW or closed, a PIC advising representative, associate advising representative or dealing representative that is not also registered with TDW (a PIC-Only Representative) will be temporarily reassigned that PIC client account. In respect of each reassigned PIC client account, the PIC-Only Representative will comply with all obligations set out in NI 31-103, including know your client, know your product and suitability determination requirements. During the Interim Period, and for the period from the date of the Business Consolidation to the surrender of the registrations of all the Representatives with PIC in the Jurisdictions, the Filers require the Representatives to be:
a. advising representatives, associate advising representatives and dealing representatives of PIC; and
b. dealing representatives of TDW.
14. The Filers submit that no conflicts of interest will arise as a result of the dual registration of the Representatives at both PIC and TDW since the Filers will not permit the Representatives to engage in registerable activities on behalf of TDW until the Business Consolidation is complete, and the registrations of the Representatives with PIC in the Jurisdictions will be surrendered upon completion of the Business Consolidation. The Filers also submit that they will not permit a Representative to engage in registerable activities on behalf of both PIC and TDW at the same time.
15. The Filers have in place policies and procedures to address, in the best interest of clients, any material conflicts of interest that may arise as a result of the dual registration of the Representatives.
16. The Representatives will be subject to supervision by, and the applicable compliance requirements of, both Filers.
17. The Filers have compliance and supervisory policies and procedures in place to monitor the conduct of their representatives, including the Representatives, and to ensure the Filers address any material conflicts of interest in the best interest of clients.
18. Paragraph 4.1(1)(b) of NI 31-103 provides that a firm registered in any jurisdiction of Canada must not permit an individual to act as an advising, associate advising or dealing representative of the registered firm if the individual is registered as an advising, associate advising or dealing representative of another firm registered in any jurisdiction of Canada. In the absence of the Exemption Sought, the Filers would be prohibited from permitting the Representatives to register as advising representatives, associate advising representatives and dealing representatives, as the case may be, of PIC, and dealing representatives of TDW, even though the Filers are affiliates and have controls and compliance procedures in place to deal with the Representative's activities and the Business Consolidation could not take place without disruption to the services provided by the Representatives to the clients of the Filers.
19. The Representatives will act in the best interest of the clients of each Filer and will deal fairly, honestly and in good faith with the clients of each Filer.
The Decision Maker in respect of the Exemption Sought is satisfied that the decision meets the test set out in the Legislation.
The decision of the Decision Maker under the Legislation is that the Exemption Sought is granted provided that:
a. the Filers will not permit the Representatives to engage in registerable activities on behalf of TDW until the Business Consolidation is complete;
b. the registrations of the Representatives with PIC in the Jurisdictions will be surrendered upon completion of the Business Consolidation;
c. the Filers will not permit a Representative to engage in registerable activities on behalf of both PIC and TDW at the same time;
d. the Representatives are subject to supervision by, and the applicable compliance requirements of, both Filers;
e. each Filer has adequate policies and procedures in place to address, in the best interest of clients, material conflicts of interest that may arise as a result of the dual registration of the Representatives;
f. the Exemption Sought expires on the earlier of the date on which all the Representatives have surrendered their registrations with PIC, or one year from the date of the decision.
OSC File #: 2025/0459
Nymbus Capital Inc. and Nymbus Multistrategy Fund
Policy Statement 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief granted from subsection 5.1(4) of Regulation 81-101 to permit simplified prospectus disclosure of alternative mutual funds to be consolidated with simplified prospectus disclosure of mutual funds that are not alternative mutual funds.
Regulation 81-101 respecting Mutual Fund Prospectus Disclosure, ss. 5.1 (4) and 6.1.
[Original text in French]
SEDAR+ filing No.: 06310522
August 26, 2025
The securities regulatory authority or regulator in each of the Jurisdictions (the "Decision Maker") has received an application (the "Application") from the Filer on behalf of the Existing Alternative Fund and any alternative mutual fund established or restructured in the future and managed by the Filer or an affiliate of the Filer (collectively with the Existing Alternative Fund, the "Alternative Funds") for a decision under the securities legislation of the Jurisdiction of the principal regulator (the "Legislation") that grants relief to the Alternative Funds from the requirement in subsection 5.1(4) of Regulation 81-101 respecting Mutual Fund Prospectus Disclosure, CQLR, c. V-1.1, r. 38 ("Regulation 81-101") which states that a simplified prospectus for an alternative mutual fund must not be consolidated with a simplified prospectus of another mutual fund if the other mutual fund is not an alternative mutual fund to permit the Filer to combine the simplified prospectus of the Alternative Funds with the simplified prospectus of the mutual funds existing today or created in the future (i) that are reporting issuers to which Regulation 81-101 and Regulation 81-102 respecting Investment Funds, CQLR, c. V-1.1, r. 39 ("Regulation 81-102") apply, (ii) that are not alternative mutual funds, and (iii) for which the Filer, or an affiliate of the Filer, acts or will act as the investment fund manager (the "Conventional Funds" and, collectively with the Alternative Funds, the "Funds") (the "Exemption Sought").
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 Filer has provided notice that section 4.7(1) of Regulation 11-102respecting Passport System, CQLR, c. V-1.1, r. 1 (Regulation 11-102) is intended to be relied upon by the Filer in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Saskatchewan and Yukon (collectively with the Jurisdictions, the Jurisdictions of Canada); and
(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in Regulation 14-101respecting Definitions, CQLR, c. V-1.1, r. 3, Regulation 11-102, Regulation 81-101 and Regulation 81-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
The Filer
1. The Filer is a corporation incorporated under the Canada Business Corporations Act, RSC, 1985, c. C-44. The Filer's head office is in Quebec.
2. The Filer is registered as investment fund manager in Québec, Ontario and Newfoundland and Labrador, and as portfolio manager in the Jurisdictions.
3. The Filer, or an affiliate of the File, is, or will be, the investment fund manager and portfolio manager of the Funds.
4. The Filer is not in default of the Legislation in any of the Jurisdictions of Canada.
The Funds
5. Each Alternative Fund is, or will be, established under the laws applicable in any Canadian Jurisdictions, as a mutual fund that is a trust or a class of shares of a mutual fund corporation and is or will be a reporting issuer in one or more of the Canadian Jurisdictions.
6. Each Conventional Fund is not, or will not be, an alternative mutual fund.
7. The Existing Alternative Fund is not in default of the securities legislation in any of the Canadian Jurisdictions.
8. The securities of each Fund are, or will be, qualified for distribution in one or more of the Jurisdictions using a simplified prospectus and fund facts document prepared and filed in accordance with the securities legislation of such Jurisdictions. Each Alternative Fund is, or will be, subject to the requirements of NI 81-101 and NI 81-102.
Reasons for the Exemption Sought
9. The Filer wishes to combine the simplified prospectus of one or more Alternative Funds with the simplified prospectus of one or more Conventional Funds to reduce renewal, printing and other related costs. Offering the Alternative Funds using the same simplified prospectus as the Conventional Funds would facilitate the distribution of the Alternative Funds in the Canadian Jurisdictions under the same prospectus disclosure and enable the Filer to streamline disclosure across the Filer's fund platform.
10. Even though the Alternative Funds are, or will be, alternative mutual funds, they share, or will share, many common operational and administrative features with the Conventional Funds and combining them in the same simplified prospectus will allow investors to compare the features of the Alternative Funds and the Conventional Funds more easily.
11. The Filer may make changes to the features of the Funds as part of the renewal process of the simplified prospectus for the Conventional Funds. The ability to file the simplified prospectus of the Alternative Funds with the simplified prospectus of the Conventional Funds will allow the Filer to standardize the operational and administrative features of the Alternative Funds with those of the Conventional Funds, as appropriate.
12. Investors will continue to receive the fund facts when purchasing securities of the Alternative Funds or Conventional Funds as required by applicable securities legislation. The form and content of the fund facts of the Alternative Funds and Conventional Funds will not change as a result of the Exemption Sought. Investors will continue to receive, upon request, the simplified prospectus of the Alternative Funds and the Conventional Funds, as required by applicable securities legislation.
13. The Filer believes that the Exemption Sought would not be detrimental to the protection of investors and is in the best interests of the Alternative Funds and their unitholders.
14. Regulation 41-101 respecting General Prospectus Requirements, CQLR, c. V-1.1, r. 14 ("Regulation 41-101") does not contain a provision equivalent to subsection 5.1(4) of Regulation 81-101. Accordingly, an investment fund manager that manages exchange-traded funds (ETFs) is permitted to consolidate a prospectus under Regulation 41-101 for its ETFs that are alternative mutual funds with a prospectus for its ETFs that are conventional mutual funds. The Filer submits that there is no reason why mutual funds filing a prospectus under Regulation 81-101 should be treated differently from ETFs filing a prospectus under Regulation 41-101.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted.
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- relief from section 2.5 of NI 81-102 to permit funds to invest in underlying ETPs that are listed in the United States and are not reporting issuers in Canadia subject to NI 81-102 -- Underlying ETP will be subject to the Investment Company Act of 1940 or the Securities Act of 1933 in the US but are considered "investment funds" under applicable securities legislation in Canda -- underlying ETPs will invest primarily in crypto assets and commodities and will only have investment objectives and strategies that would be permitted under NI 81-102 -- investment in underlying ETFs by a fund will be limited in the aggregate to 10% of the fund's net asset value at the time of purchase.
National Instrument 81-102 Investment Funds, ss. 2.5(2)(a), (a.1) and (c), and 19.1.
October 9, 2025
The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of the existing funds and such other mutual funds or alternative mutual funds that are or will be managed from time to time by the Filer or by an affiliate or successor of the Filer (collectively, the Funds and each, a Fund) that are subject to National Instrument 81-102 Investment Funds (NI 81-102), for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) exempting the Funds:
(a) from paragraphs 2.5(2)(a) and (a.1) to permit each Fund to purchase and/or hold securities of IBIT, ETHA, BCI (each defined below) and/or other existing and future exchange-traded funds or other exchange-traded products, including, but not limited to:
i. US cryptocurrency exchange-traded products that have exposure to one or more cryptocurrencies; and
ii. US commodity exchange-traded funds (US Commodity ETFs) and non-redeemable investment funds (US Commodity NRIFs, and together with US Commodity ETFs, US Commodity Funds) that have exposure to one or more physical commodities;
in each case that are not index participation units (IPUs) and whose securities are, or will be, listed for trading on a stock exchange in the United States (collectively, the Underlying ETPs, and each, an Underlying ETP) even though the Underlying ETP is not subject to NI 81-102; and
(b) from paragraph 2.5(2)(c) to permit each Fund to purchase and/or hold securities of one or more Underlying ETPs even though the Underlying ETP is not a reporting issuer in any province or territory of Canada.
(collectively, 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 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 (together with Ontario, the Jurisdictions).
Terms defined in National Instrument 14-101 Definitions, MI 11-102 and NI 81-102 have the same meaning if used in this decision, unless otherwise defined herein.
This decision is based on the following facts represented by the Filer:
The Filer
1. The Filer is a corporation incorporated under the laws of Canada, with its head office located in Toronto, Ontario.
2. The Filer is registered: (a) under the securities legislation of Ontario, Québec, and Newfoundland and Labrador as an investment fund manager; (b) under the securities legislation of Ontario as an exempt market dealer; (c) under the securities legislation of Ontario as a portfolio manager; and (d) under the Commodity Futures Act (Ontario) as a commodity trading manager.
3. The Filer is, or will be, the registered investment fund manager of each of the Funds.
4. The Filer is not in default of the securities legislation in any of the Jurisdictions.
The Funds
5. Each Fund is, or will be, an investment fund organized and governed by the laws of a Jurisdiction.
6. Each Fund is, or will be, governed by the applicable provisions of NI 81-102, subject to any exemptions therefrom that have been, or may in the future be, granted by the securities regulatory authorities.
7. Each Fund is, or will be, a reporting issuer in the Jurisdictions.
8. Each Fund is, or will be, subject to NI 81-107 Independent Review Committee for Investment Funds.
9. None of the existing Funds is in default of applicable securities legislation in any Jurisdiction.
10. Each Fund may, from time to time, wish to invest in Underlying ETPs in accordance with their investment strategy. Certain existing Funds currently intend to invest in securities of iShares® Bitcoin Trust (IBIT), iShares® Ethereum Trust ETF (ETHA) and abrdn Bloomberg All Commodity Strategy K-1 Free ETF (BCI), each of which are Underlying ETPs. BCI is also a US Commodity Fund.
IBIT and ETHA
11. Each of IBIT and ETHA is a Delaware statutory trust that issues shares representing fractional undivided beneficial interests in its net assets.
12. IBIT is governed by the provisions of a Second Amended and Restated Trust Agreement (the IBIT Trust Agreement) executed as of December 28, 2023, as amended from time to time, by the Sponsor and the Trustee and the Delaware Trustee (each as defined below).
13. ETHA is governed by the provisions of a Second Amended and Restated Trust Agreement (the ETHA Trust Agreement) executed as of July 3, 2024, as amended from time to time, by the Sponsor and the Trustee and the Delaware Trustee.
14. IBIT seeks to reflect generally the performance of the price of bitcoin, before payment of IBIT's expenses and liabilities, by investing directly in bitcoin. The assets of IBIT consist solely of bitcoin and cash.
15. ETHA seeks to reflect generally the performance of the price of ether, before payment of ETHA's expenses and liabilities, by investing directly in ether. The assets of ETHA consist solely of ether and cash.
16. IBIT shares (IBIT Shares) are exchange-traded securities that are distributed in the United States pursuant to a prospectus dated August 8, 2024 and ETHA shares (ETHA Shares) are exchange-traded securities that are distributed in the United States pursuant to a prospectus dated July 22, 2024, each as amended and supplemented from time to time, that are part of a registration statement on Form S-1 under the United States Securities Act of 1933 (the 1933 Act) that was filed in respect of IBIT and ETHA with the United States Securities and Exchange Commission (SEC).
17. IBIT Shares are listed and traded on The Nasdaq Stock Market LLC (Nasdaq) under the ticker symbol "IBIT". IBIT has net assets in excess of US$51 billion as at December 31, 2024.
18. ETHA Shares are listed and traded on Nasdaq under the ticker symbol "ETHA". ETHA has net assets in excess of US$3.5 billion as at December 31, 2024.
19. IBIT and ETHA issue shares on a continuous basis. IBIT and ETHA issue and redeem shares only in blocks of a specific number of shares (a Basket), or integral multiples thereof, based on the quantity of bitcoin attributable to each IBIT Share or ether attributable to each ETHA Share (net of accrued but unpaid renumeration due to the Sponsor and any accrued but unpaid expenses or liabilities). IBIT and ETHA may change the number of IBIT Shares or ETHA Shares in a Basket. These transactions take place in exchange for cash.
20. Baskets are offered continuously by IBIT and ETHA at the net asset value (NAV) per share multiplied by the shares in a Basket. Only registered broker-dealers that become authorized participants by entering into a contract with the Sponsor and the Trustee (Authorized Participants) may purchase or redeem Baskets. Authorized Participants deliver only cash to create IBIT Shares or ETHA Shares and receive only cash when redeeming IBIT Shares or ETHA Shares.
21. Each of IBIT and ETHA is not registered, and is not required to be registered, as an "investment company" under the United States Investment Company Act of 1940, as amended (the 1940 Act).
22. The sponsor (the Sponsor) of IBIT and ETHA is iShares Delaware Trust Sponsor LLC, a Delaware limited liability company and an indirect subsidiary of BlackRock, Inc. (Blackrock).
23. The Sponsor arranged for the creation of IBIT and ETHA, the registration of the IBIT Shares and ETHA Shares for their public offering in the United States and the listing of the IBIT Shares and ETHA Shares on the Nasdaq. The Sponsor has certain marketing and administrative duties in respect of IBIT and ETHA and is responsible for the oversight and overall management of IBIT and ETHA but has delegated day-to-day administration of IBIT and ETHA to the Trustee (as defined below) under the IBIT Trust Agreement and the ETHA Trust Agreement.
24. The trustee (the Trustee) of IBIT and ETHA is BlackRock Fund Advisors, an indirect, wholly-owned subsidiary of BlackRock.
25. The Trustee is responsible for the day-to-day administration of IBIT and ETHA. The Trustee has delegated certain day-to-day responsibilities to the Trust Administrator (as defined below).
26. Wilmington Trust, National Association, a national association (the Delaware Trustee), is the Delaware trustee of IBIT and ETHA.
27. The Bank of New York Mellon serves as the trust administrator (Trust Administrator) of IBIT and ETHA. The Trust Administrator has been engaged to provide certain administrative services, including, but not limited to, arranging for the computation of the NAV of IBIT and ETHA; preparing IBIT's and ETHA's financial statements and annual and quarterly reports; and recording payment of fees and expenses on behalf of IBIT and ETHA. The Bank of New York Mellon is also the custodian for IBIT's and ETHA's cash holdings.
28. Coinbase Custody Trust Company, LLC (the Crypto Custodian) is the custodian for IBIT's bitcoin holdings and ETHA's ether holdings. The Crypto Custodian has represented that it is a fiduciary under Section 100 of the New York Banking Law and a qualified custodian for purposes of Rule 206(4)-2(d)(6) under the 1940 Act.
29. The Crypto Custodian satisfies the criteria for a sub-custodian for assets held outside Canada in Section 6.3 of NI 81-102.
BCI
30. BCI is a series of abrdn ETFs (the BCI Trust). The BCI Trust is a Delaware statutory trust that consists of multiple series, each of which is a separate fund. The BCI Trust, including BCI as a series of the trust, is an investment company registered under the 1940 Act. The board of directors (the BCI Board) of the BCI Trust is responsible for the management and direction of the BCI Trust.
31. abrdn Inc. (the BCI Advisor) has been appointed by the BCI Board as investment advisor of BCI. The BCI Advisor is responsible for the management and administration of the BCI Trust, BCI, and the Subsidiary (defined below).
32. BCI seeks to provide investment results that closely correspond, before fees and expenses, to the performance of the Bloomberg Commodity Index Total ReturnSM (the Index).
33. Under normal market conditions, BCI will invest in exchange-traded commodity futures contracts through a wholly-owned subsidiary of BCI organized under the laws of the Cayman Islands (the Subsidiary). BCI's investment in the Subsidiary is intended to enable BCI to gain exposure to relevant commodity markets within the limits of current US federal income tax laws applicable to a regulated investment company, such as BCI. The Subsidiary is not an "investment fund" for the purposes of Canadian securities law. BCI may invest up to 25% of its total assets in the Subsidiary. The remainder of BCI's assets will principally be invested in: (i) short-term investment grade fixed income securities that include US government securities and money market instruments; and (ii) cash and other cash equivalents. BCI seeks to use such instruments to generate a total return on the cash balances arising from the use of futures contracts that, when combined with BCI's other investments, tracks the total return of the Index.
34. The Index is a broad-based commodity index representing the total returns of a fully collateralized investment in the Bloomberg Commodity IndexSM (BCOM), which is composed of futures contracts on physical commodities and is designed to be a highly liquid and broad-based benchmark for commodities futures investments. Futures contracts on commodities generally are agreements between two parties where one party agrees to buy, and the counterparty to sell, a set amount of a physical commodity (or, in some contracts, a cash equivalent) at a pre-determined future date and price. The value of commodity futures contracts is based upon the price movements of the underlying commodities. The Index combines the returns of BCOM with the returns on cash collateral invested in 3-month US Treasury Bills.
35. BCI is an exchange-traded fund. Individual shares (BCI Shares) may only be purchased and sold in the secondary market through a broker-dealer.
36. BCI Shares are listed and traded on NYSE Arca under the ticker symbol "BCI". BCI has net assets in excess of USD$1.26 billion as at December 31, 2024.
37. BCI is a US Commodity Fund. The assets of each US Commodity Fund in which a Fund may invest, consist, or will consist primarily of one or more physical commodities, or investments in vehicles or derivatives that have an underlying interest in such physical commodity or commodities. These physical commodities may include, without limitation, precious metals commodities (such as gold, silver, platinum, platinum certificates, palladium and palladium certificates), energy commodities (such as crude oil, gasoline, heating oil and natural gas), industrials and/or metals commodities (such as aluminum, copper, nickel, uranium and zinc) and agricultural commodities (such as coffee, corn, cotton, lean hogs, live cattle, soybeans, soybean oil, sugar and wheat). The objective of a US Commodity Fund is to reflect the price of the applicable commodity or commodities (less such US Commodity Fund's expenses and liabilities) on an unlevered basis, or to track the performance of an index which is intended to reflect the changes in the market value of the applicable physical commodity or commodities sector.
The Underlying ETPs (including IBIT, ETHA and BCI)
38. The securities of an Underlying ETP will not meet the definition of an IPU in NI 81-102 because the purpose of the Underlying ETP will not be to:
(a) hold the securities that are included in a specified widely quoted market index in substantially the same proportion as those securities are reflected in that index; or
(b) invest in a manner that causes the Underlying ETP to replicate the performance of that index.
39. An Underlying ETP's investment objectives and strategies will be consistent with the investment restrictions in NI 81-102 and, as such, a Fund's investment in securities of an Underlying ETP will not cause the Fund to indirectly invest in assets or have access to investment strategies that it would not be permitted to have directly.
40. Each Underlying ETP is or will be:
(a) an "investment company" subject to the 1940 Act and in good standing with the SEC; or
(b) regulated by the SEC as a reporting issuer under the 1933 Act, and in good standing with the SEC.
41. Each Underlying ETP will offer its shares in the primary market pursuant to a prospectus filed with the SEC which discloses a description of the Underlying ETP's properties and business, a description of the securities being offered for sale, information about the management of the Underlying ETP and financial statements certified by independent accountants, in a manner that is similar to the disclosure requirements under NI 41-101 and Form 41-101F2;
42. Each Underlying ETP will prepare key investor information documents which provide disclosure that is substantially similar to the disclosure required to be included in the ETF facts document required by Form 41-101F4 -- Information Required in an ETF Facts Document.
43. Each Underlying ETP will be subject to continuous disclosure obligations which are substantially similar to the disclosure obligations under National Instrument 81-106 -- Investment Fund Continuous Disclosure. An Underlying ETP will be required to update information of material significance in its prospectus, to prepare management reports and an unaudited set of financial statements at least quarterly, and to prepare management reports and an audited set of financial statements annually.
44. Each Underlying ETP is, or will be, an "investment fund" within the meaning of applicable Canadian securities legislation.
45. The securities of an Underlying ETP are, or will be, listed on a national securities exchange in the United States and the market for them is, or will be, liquid because it is, or will be, supported by registered broker-dealers that have a role similar to "designated brokers" for Canadian exchange-traded funds. As a result, the Filer expects a Fund to be able to dispose of such securities through market facilities in order to raise cash, including to fund the redemption requests of its securityholders.
46. An Underlying ETP may be managed by the Filer or an affiliate or associate of the Filer, or by a third-party investment fund manager.
47. An investment in an Underlying ETP by a Fund will otherwise comply with section 2.5 of NI 81-102, including that:
(a) no Underlying ETP will hold more than 10% of its net asset value in securities of another investment fund unless the Underlying ETP (i) is a clone fund, as defined in NI 81-102, or (ii) in accordance with NI 81-102, purchases or hold securities (A) of a money market fund, as defined in NI 81-102, or (B) that are IPUs issued by an investment fund; and
(b) no Fund will pay management or incentive fees which to a reasonable person would duplicate a fee payable by an Underlying ETP for the same service.
48. In the absence of the Exemption Sought, an investment by a Fund in an Underlying ETP would be prohibited:
(a) by paragraph 2.5(2)(a) or (a.1) of NI 81-102 because such Underlying ETP is not subject to NI 81-102; and
(b) by paragraph 2.5(2)(c) of NI 81-102 because such Underlying ETP is not a reporting issuer in any Jurisdiction.
49. An investment in an Underlying ETP does not qualify for the exception in paragraph 2.3(3)(a) of NI 81-102 because the securities of the Underlying ETP are not IPUs.
50. The key benefits of a Fund investing in the Underlying ETPs are greater choices, lower fees and expenses and potentially enhanced returns. For example:
(a) an investment in an Underlying ETP may lead to efficiencies that result from lower operating expenses and overall management fees than investing directly or through other funds available in the existing Canadian market;
(b) investing through Underlying ETPs may provide a better risk profile, better diversification and/or improved liquidity / tradability than direct holdings of asset classes to which the Underlying ETP provides exposure;
(c) investing through Underlying ETPs may provide better liquidity / tradability than funds with similar strategies available in the existing Canadian market; and
(d) the investment strategies of the Underlying ETPs offer significantly broader exposure to asset classes, sectors and markets than those available in the existing Canadian market.
51. Having the option to allocate a limited portion of a Fund's assets to one or more Underlying ETPs will increase diversification opportunities and may improve a Fund's overall risk/reward profile.
52. An investment in an Underlying ETP by a Fund may be an efficient and cost-effective alternative to obtaining the same exposure directly or through a Canadian fund.
53. An investment in an Underlying ETP by a Fund should pose limited investment risk to a Fund because each Underlying ETP will be a reporting issuer in the United States and as such subject to applicable securities laws.
54. The investment by a Fund in securities of an Underlying ETP is or will be in accordance with the investment objective of the Fund.
55. A Fund will not purchase securities of an Underlying ETP if, immediately after the purchase, more than 10% of the net asset value of the Fund, in aggregate, taken at market value at the time of the purchase, would consist of securities of Underlying ETPs;
56. Securities of each Underlying ETP are or will be listed on a national securities exchange in the United States registered with the SEC.
57. The prospectus of each Fund discloses, or will disclose in the next renewal of its prospectus following the date of this decision, in the investment strategy section, the fact that the Fund has obtained the Exemption Sought to permit investments in Underlying ETPs on the terms described in this decision.
58. An investment by a Fund in an Underlying ETP will represent the business judgment of responsible persons uninfluenced by considerations other than the best interests of the Fund.
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) the investment by a Fund in securities of an Underlying ETP is in accordance with the investment objective of the Fund;
(b) a Fund does not purchase securities of an Underlying ETP if, immediately after the purchase, more than 10% of the net asset value of the Fund, in aggregate, taken at market value at the time of the purchase, would consist of securities of Underlying ETPs;
(c) securities of each Underlying ETP are listed on a recognized exchange in the United States;
(d) each Underlying ETP is:
(i) an "investment company" subject to the 1940 Act and in good standing with the SEC; or
(ii) regulated by the SEC as a reporting issuer under the 1933 Act and in good standing with the SEC; and
(e) the prospectus of each Fund discloses, or will disclose in the next renewal of its prospectus following the date of this decision, in the investment strategy section, the fact that the Fund has obtained the Exemption Sought to permit investments in Underlying ETPs on the terms described in this decision.
Application File #: 2025/0490
SEDAR+ File #: 6319595
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- relief from section 2.5 of NI 81-102 to permit funds to invest in underlying ETFs that are listed in the United States and are not reporting issuers in Canadia subject to NI 81-102 -- Underlying ETFs will be subject to Investment Company Act of 1940 in the US and will only have investment objectives and strategies that would be permitted under NI 81-102 -- investment in underlying ETFs by a fund will be limited in the aggregate to 10% of the fund's net asset value at the time of purchase.
National Instrument 81-102 Investment Funds, ss. 2.5(2)(a) (a.1) and (c), and 19.1.
October 6, 2025
The principal regulator in the Jurisdiction has received an application from the Filer in respect of existing and future investment funds that are or will be managed by the Filer or an affiliate of the Filer (the Funds), for a decision under the securities legislation of the principal regulator (the Legislation) exempting each Fund from the following provisions of National Instrument 81-102 Investment Funds (NI 81-102) in order to permit the Funds to invest in securities of existing and future exchange-traded funds (ETFs) that are not index participation units (IPUs) and whose securities are, or will be, listed for trading on a stock exchange in the United States (the Underlying ETFs):
(a) paragraphs 2.5(2)(a) and (a.1) to permit each Fund to purchase and/or hold securities of an Underlying ETF even though the Underlying ETF is not subject to NI 81-102; and
(b) paragraph 2.5(2)(c) to permit each Fund to purchase and/or hold securities of an Underlying ETF even though the Underlying ETF is not a reporting issuer in any province or territory of Canada
(collectively, 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 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 (together with Ontario, the Canadian Jurisdictions).
Terms defined in National Instrument 14-101 Definitions, MI 11-102 and NI 81-102 have the same meanings if used in this decision, unless otherwise defined.
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 the Province of Ontario with its head office in Toronto, Ontario.
2. The Filer is registered as (a) an exempt market dealer in each of the provinces of Canada, (b) a portfolio manager in Alberta, British Columbia, Newfoundland and Labrador, Ontario and Québec, (c) an investment fund manager in each of the provinces of Canada, and (d) a commodity trading manager in Ontario.
3. The Filer or an affiliate of the Filer acts, or will act, as investment fund manager of each Fund.
4. The Filer is not in default of securities legislation in any of the Canadian Jurisdictions.
The Funds
5. Each Fund is, or will be, an open-ended mutual fund established either as a trust or a class of shares of a mutual fund corporation under the laws of a Jurisdiction.
6. The securities of each of the Funds are, or will be, qualified for distribution pursuant to one or more prospectuses or simplified prospectuses, as the same may be amended from time to time.
7. Each Fund is, or will be, governed by the applicable provisions of NI 81-102, subject to any exemptions therefrom that have been, or may in the future be, granted by the securities regulatory authorities.
8. Each Fund is, or will be, a reporting issuer in one or more Canadian Jurisdictions.
9. Each Fund is, or will be, subject to National Instrument 81-107 Independent Review Committee for Investment Funds.
10. Each existing Fund is not in default of applicable securities legislation in any Canadian Jurisdiction.
11. The Funds may, from time to time, wish to invest in Underlying ETFs.
The Underlying ETFs
12. Each Underlying ETF is, or will be a publicly distributed "investment company" subject to the Investment Company Act of 1940 (the Investment Company Act) in the United States.
13. Each Underlying ETF is or will also be considered a "mutual fund" under the Legislation.
14. Securities of each Underlying ETF will be distributed pursuant to a prospectus and related documents filed with the United States Securities Exchange Commission pursuant to the Securities Act of 1933 and the requirements of other applicable laws of the United States.
15. The securities of an Underlying ETF are, or will be, listed on an exchange that is a "national stock exchange" as defined in the Securities Exchange Act of 1934 (a Recognized Exchange) in the United States and the market for them is, or will be, liquid because it is, or will be, supported by designated brokers. As a result, the Filer expects a Fund to be able to dispose of such securities through market facilities in order to raise cash, including to fund the redemption requests of its securityholders.
16. The securities of an Underlying ETF will not meet the definition of an IPU in NI 81-102 because the purpose of the Underlying ETF will not be to:
(a) hold the securities that are included in a specified widely quoted market index in substantially the same proportion as those securities are reflected in that index; or
(b) invest in a manner that causes the Underlying ETF to replicate the performance of that index.
Necessity for the Exemption Sought
17. None of the Underlying ETFs are, or will be, reporting issuers in a Jurisdiction, and are not or will not be subject to NI 81-102, or seek to comply with NI 81-102.
18. Absent the Exemption Sought, an investment by a Fund in an Underlying ETF would:
(a) be prohibited by paragraphs 2.5(2)(a) or (a.1) of NI 81-102, as applicable, because such Underlying ETF will not be subject to NI 81-102;
(b) be prohibited by paragraph 2.5(2)(c) of NI 81-102 because such Underlying ETF will not be a reporting issuer in any Canadian Jurisdiction; and
(c) not qualify for the exception in paragraph 2.5(3)(a) of NI 81-102 because the securities of the Underlying ETF are not IPUs.
Reasons for Investment in the Underlying ETFs
19. The key benefits of a Fund investing in the Underlying ETFs are greater choices, improved portfolio diversification and potentially enhanced returns. For example:
(a) an investment in the Underlying ETFs will provide the Funds with access to specialized knowledge, expertise and/or analytical resources of the investment adviser and/or portfolio manager to the Underlying ETFs;
(b) the Underlying ETFs provide a potentially better risk profile, diversification and improved liquidity/tradability than direct holdings of asset classes to which the Underlying ETFs provide exposure; and
(c) the investment strategies of the Underlying ETFs offer significantly broader exposure to asset classes, sectors and markets than those available in the existing Canadian exchange-traded fund market.
20. The Filer submits that having the option to allocate a limited portion of each Fund's assets to Underlying ETFs will increase diversification opportunities and may improve a Fund's overall risk/reward profile.
21. An investment in an Underlying ETF by a Fund is an efficient and cost-effective alternative to obtaining exposure to securities held by the Underlying ETF rather than purchasing those securities directly by the Fund.
22. An investment in an Underlying ETF by a Fund should pose limited investment risk to the Fund because each Underlying ETF will be subject to the Investment Company Act, subject to any exemption therefrom that is or may in the future be granted by the applicable securities regulatory authorities.
Generally
23. An investment in an Underlying ETF by a Fund will otherwise comply with section 2.5 of NI 81-102, including that:
(a) no Underlying ETF will hold more than 10% of its net asset value (NAV) in securities of another investment fund unless the Underlying ETF (a) is a clone fund, as defined in NI 81-102, or (b) in accordance with NI 81-102, purchases or holds securities (i) of a money market fund, as defined in NI 81-102, or (ii) that are IPUs issued by an investment fund; and
(b) no Fund will pay management or incentive fees which to a reasonable person would duplicate a fee payable by an Underlying ETF for the same service.
24. An investment by a Fund in an Underlying ETF will represent the business judgment of responsible persons uninfluenced by considerations other than the best interest of the Fund.
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) the investment by a Fund in securities of an Underlying ETF is in accordance with the investment objective of the Fund;
(b) a Fund does not purchase securities of an Underlying ETF if, immediately after the purchase, more than 10% of the NAV of the Fund, in aggregate, taken at market value at the time of the purchase, would consist of securities of Underlying ETFs;
(c) securities of each Underlying ETF are listed on a Recognized Exchange in the United States;
(d) each Underlying ETF is, immediately before the purchase by a Fund of securities of that Underlying ETF, an investment company subject to the Investment Company Act in good standing with the United States Securities and Exchange Commission; and
(e) the prospectus of each Fund discloses, or will disclose in the next renewal of its prospectus following the date of this decision, in the investment strategy section, the fact that the Fund has obtained the Exemption Sought to permit investments in Underlying ETFs on the terms described in this decision.
Application File #: 2025/0491
SEDAR+ File #: 6319616
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Policy Statement 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions.
The Performance Data Relief
Relief granted from sections 15.3(2), 15.6(1)(a)(i), 15.6(1)(d)(i), 15.8(2)(a.1) and 15.8(3)(a.1) and 15.1.1 of Regulation 81-102 and items 2 and 4 of Appendix F to permit the 3 mutual funds that has not distributed securities under a simplified prospectus in a jurisdiction for 12 consecutive months to include in their sales communications past performance data relating to a period when the funds' securities were previously distributed to investors on a prospectus-exempt basis and to use their past performance data to calculate their investment risk level in accordance with Appendix F -- with the 3 mutual funds having the same investment objectives and fee structure as for a period when its securities were offered on a prospectus-exempt basis except for one the three fund which will only share past performance data from 2022 as such fund went through major changes in 2022 and which was reporting issuer between 2011 and 2020; Relief granted from section 2.1 of Regulation 81-101 for the purposes of the relief requested from Form 81-101F1 Contents of Simplified Prospectus and Form 81-101F3 Contents of Fund Facts Document, Item 10(a) of Part B of Form 81-101F1 to permit the 3 funds to use their past performance data for a period when their securities were offered on a prospectus-exempt basis to calculate their investment risk rating in their simplified prospectus, Items 5(1.1), 5(2), 5(3) and 5(4) and Instruction (1) of Part I of Form 81-101F3 Contents of Fund Facts Document to permit the 3 mutual funds to include in their fund facts document past performance data for a period when the funds were offered on a prospectus-exempt basis;
Relief granted from section 4.4 of National Instrument 81-106 for the purposes of the relief requested from Items 4.1(1), 4.1(2), 4.2(1) and 4.3(1) of Part B of Form 81-106F1, and Items 3(1) and 4 of Part C of Form 81-106F1, to permit the 3 mutual funds to include in their annual and interim management reports of fund performance the past performance and financial data relating to a period when the funds were previously offered on a prospectus-exempt basis.
The Alternative Fund Short Sale Relief
Relief granted from requirement in Regulation 81-102 to permit alternative mutual funds to practice physical short sell up to 100% of net assets in connection with "market neutral" or other short selling strategies -- Regulation 81-102 would allow funds to achieve similar short exposure through derivatives.
The Deposit Concentration Relief
Relief from sections 6.8(1) and 6.8(2)(c) of Regulation 81-102 exempting an investment fund from margin deposit limits to invest in specified derivatives -- subject to conditions.
The Performance Data Relief
Regulation 81-102 Investment Funds, ss. 15.3(2), 15.6(1)(a)(i), 15.6(1)(d), 15.8(2)(a.1), 15.8(3)(a.1), 15.1.1 and 19.1.
Regulation 81-102 Investment Risk Classification Methodology, Items 2 and 4 of Appendix F.
Regulation 81-101 Mutual Fund Prospectus Disclosure, ss. 2.1 and 6.1.
Form 81-101F1 Contents of Simplified Prospectus, Item 10(a) of Part B.
Form 81-101F3 Contents of Fund Facts Document, Items 5(1.1), 5(2), 5(3) and 5(4) and Instruction (1) of Part I of Part I.
Regulation 81-106 Investment Fund Continuous Disclosure, ss. 4.4 and 17.1.
Form 81-106F1 Contents of Annual and Interim Management Report of Fund Performance, Items 4.1(1), 4.1(2), 4.2(1) and 4.3(1) of Part B and Items 3(1) and 4 of Part C.
The Alternative Fund Short Sale Relief
Regulation 81-102 Investment Funds, ss 2.6.1(1)(c)(v), 2.6.2 and 19.1.
The Deposit Concentration Relief
Regulation 81-102 Investment Funds, ss. 6.8(1), 6.8(2)(c) and 19.1.
[Original text in French]
SEDAR+ filing No: 06333868
September 23, 2025
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application (the Application) from the Filer on behalf of the Funds for a decision under the securities legislation of the Jurisdictions (the Legislation):
(a) that exempts the Funds from Subsections 15.3(2), 15.6(1)(a)(i), 15.6(1)(d)(i), 15.8(2)(a.1) and 15.8(3)(a.1) of Regulation 81-102respecting Investment Funds, CQLR, c. V-1.1, r. 39 (Regulation 81-102) to permit the Funds to include performance data in sales communications notwithstanding that:
a. the performance data will relate to a period prior to the Funds offering their securities under a simplified prospectus; and
b. the Funds have not distributed their securities under a simplified prospectus for 12 consecutive months;
(b) that exempts the Funds from subsection 15.1.1(a) of Regulation 81-102 and Items 2 and 4 of Appendix F -- Investment Risk Classification Methodology to Regulation 81-102 (the Risk Classification Methodology) to permit the Funds to include their past performance data in determining their investment risk level in accordance with the Risk Classification Methodology;
(c) that exempts the Funds from subsection 15.1.1(b) of Regulation 81-102 and Item 4(2)(a) and Instruction (1) of Item 4 of Form 81-101F3 Contents of Fund Facts Document (Form 81-101F3), to permit the Funds to disclose their investment risk level as determined by including their past performance data in accordance with the Risk Classification Methodology;
(d) that exempts the Funds from item 10(a) of Part B of Form 81-101F1 Contents of Simplified Prospectus (Form 81-101F1) to permit the Funds to use their past performance data to calculate their investment risk rating in their simplified prospectus;
(e) that exempts the Funds from Section 2.1 of Regulation 81-101 respecting Mutual Fund Prospectus Disclosure, CQLR, c. V-1.1, r.38 (Regulation 81-101) for the purposes of the relief requested herein from Form 81-101F1 and Form 81-101F3;
(f) that exempts the Funds from Items 5(1.1), 5(2), 5(3) and 5(4) and Instruction (1) of Part I of Form 81-101F3 in respect of the requirement to comply with sections 15.3(2), 15.6(1)(a)(i), 15.6(1)(d)(i), 15.8(2)(a.1) and 15.8(3)(a.1) of Regulation 81-102 to permit the Funds to include in their fund facts the past performance data of the Funds notwithstanding that:
a. such performance data relates to a period prior to the Funds offering their securities under a simplified prospectus; and
b. the Funds have not distributed their securities under a simplified prospectus for 12 consecutive months;
(g) that exempts the Funds from Section 4.4 of Regulation 81-106 respecting Investment Fund Continuous Disclosure, CQLR, c. V-1.1, r. 42 (Regulation 81-106) with respect to the following items in Form 81-106F1 Contents of Annual and Interim Management Report of Fund Performance (Form 81-106F1);
(h) that exempts the Funds from Items 4.1(1) (in respect of the requirement to comply with section 15.3(2) of Regulation 81-102), 4.1(2), 4.2(1) and 4.3(1) of Part B of Form 81-106F1, and Items 3(1) and 4 of Part C of Form 81-106F1 to permit the Funds to include, in their annual and interim management reports of fund performance (MRFPs), past performance data and financial highlights of the Funds notwithstanding that such performance data relates to a period prior to the Funds offering their securities under a simplified prospectus.
(paragraphs (a) through (h) collectively, the Performance Data Relief);
(i) that exempts the Nymbus Multistrategy Fund from:
a. Subsection 2.6.1(1)(c)(v) of Regulation 81-102, which restricts an alternative mutual fund from selling a security short if, at the time, the aggregate market value of the securities sold short by the alternative mutual fund exceeds 50% of the alternative mutual fund's Net Asset Value (NAV);
b. Subsection 2.6.2 of Regulation 81-102, which restricts an alternative mutual fund from borrowing cash or selling securities short if, immediately after entering into a cash borrowing or short selling transaction, the aggregate value of cash borrowed combined with the aggregate market value of all securities sold short by the alternative mutual fund (the Combined Aggregate Value) would exceed 50% of the Fund's NAV and which requires a Fund, if the Combined Aggregate Value exceeds 50% of the Fund's NAV, as quickly as commercially reasonable, to take all necessary steps to reduce the Combined Aggregate Value to 50% or less of the Fund's NAV.
(paragraphs (a) and (b) collectively, the Alternative Fund Short Sale Relief);
(j) that exempts the Nymbus Multistrategy Fund from:
a. Subsection 6.8(1) of Regulation 81-102, which restricts and investment fund from depositing portfolio assets as margin with a member of a regulated clearing agency or a dealer that is a member of a self-regulatory organization that is a participating member of the Canadian Investor Protection Fund for a transaction in Canada involving certain specified derivatives in excess of 10% of the NAV of the investment fund at the time of deposit; and
b. Subsection 6.8(2)(c) of Regulation 81-102, which restricts an investment fund from depositing portfolio assets as margin with a member of a regulated clearing agency or dealer for a transaction outside of Canada involving certain specified derivatives in excess of 10% of the NAV of the investment fund as at the time of deposit;
to permit the Nymbus Multistrategy Fund to deposit as margin portfolio assets of up to 35% of its NAV as at the time of deposit with any one futures commission merchant in Canada or the United States (Dealers and each a Dealer) and up to 70% of its NAV at the time of deposit with all Dealers in the aggregate, for transactions involving standardized futures, clearing corporation options, options on futures or cleared specified derivatives (the Exchange Traded Specified Derivatives) (the Deposit Concentration Relief);
(collectively, the Performance Data Relief, the Alternative Fund Short Sale Relief and the Deposit Concentration Relief, the Exemptions Sought).
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 Filer has provided notice that section 4.7(1) of Regulation 11-102respecting Passport System, CQLR, c. V-1.1, r. 1 (Regulation 11-102) is intended to be relied upon by the Filer in the following jurisdictions: Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Saskatchewan and Yukon (collectively with the Jurisdictions, the Jurisdictions of Canada); and
(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in Regulation 14-101respecting Definitions, CQLR, c. V-1.1, r. 3 and Regulation 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. Each Fund is a mutual fund trust established under the laws of Ontario.
2. The Nymbus Sustainable Enhanced Short-term Bonds Fund was established on September 19, 2006.
3. The Nymbus Sustainable Enhanced Bonds Fund was established on April 21, 2023.
4. The Nymbus Sustainable Enhanced Short-term Bonds Fund and the Nymbus Sustainable Enhanced Bonds Fund are not alternative mutual funds.
5. The Nymbus Multistrategy Fund was established on April 28, 2023.
6. The Nymbus Multistrategy Fund is an alternative mutual fund.
7. The Funds are currently not reporting issuers. Since the inception of the Nymbus Sustainable Enhanced Bonds Fund and the Nymbus Multistrategy Fund, units of these two Fund have only been distributed in the Jurisdictions to investors on a prospectus-exempt basis in accordance with Regulation 45-106respecting Prospectus Exemptions, CQLR, V-1.1, r. 21 (Regulation 45-106).
8. The Nymbus Sustainable Enhanced Short-term Bonds Fund was a reporting issuer between 2011 and 2020. Otherwise, the units of the Nymbus Sustainable Enhanced Short-term Bonds Fund have been distributed in the Jurisdictions to investors on a prospectus-exempt basis in accordance with Regulation 45-106.
9. In 2022, the Nymbus Sustainable Enhanced Short-Term Bond Fund underwent major changes, including a new management team, a revised fundamental investment objectives and strategies, and a modified governance structure.
10. The strategies of the Nymbus Sustainable Enhanced Short-term Bonds Fund have been modified several times since its inception, with the most recent modification on October 1, 2022.
11. The Filer's head office is in Quebec.
12. The Filer is registered as investment fund manager in Québec, Ontario and Newfoundland and Labrador, and as portfolio manager in the Jurisdictions. The Filer is the investment fund manager and portfolio manager of the Funds.
13. The Filer and the Funds are not in default of the Legislation in any of the Jurisdictions of Canada.
14. The Filer, in its role as the Funds' investment fund manager, is in the process of creating new classes for each Fund which will be distributed by prospectus and fund facts governed by Regulation 81-101. These new classes will be created approximately on the same date as the final simplified prospectus.
15. The Filer intends to qualify for distribution under a prospectus the new classes as well as some of its existing classes of the Funds (together, the "New Classes").
16. Upon the issuance of a receipt for the final simplified prospectus, each Fund will become a reporting issuer in each of the Jurisdictions and will become subject to the requirements of Regulation 81-102. Each Fund will also become subject to the requirements of Regulation 81-106 that apply only to investment funds that are reporting issuers.
17. Since each Fund commenced its operations, each Fund has complied with the investment restrictions and practices contained in Regulation 81-102, including with respect to the use of leverage in the management of its portfolio.
18. Since each Fund commenced its operations, each Fund has complied with the obligations to prepare and send audited annual and unaudited interim financial statements to all holders of its securities and to calculate its management expense ratio (MER) in accordance with Regulation 81-106.
19. The Funds will be managed substantially similarly after they become reporting issuers as they were prior to becoming reporting issuers. As a result of the Funds becoming reporting issuers:
a. the Funds' investment objectives will not change, other than to provide additional detail as required by Regulation 81-101;
b. the day-to-day administration of the Funds will not change, other than to comply with the additional regulatory requirements associated with being a reporting issuer; and
c. the management expense ratio and the trading expense ratio of the Funds are not expected to increase significantly or the management expense ratio and the trading expense ratio of the Funds are expected to remain the same.
20. The administrative expenses of the Funds will be higher due to the Funds being subject to the additional regulatory requirements applicable to a reporting issuer, but the Filer does not expect the amount to be material.
21. The Filer proposes to present the past performance data and other financial data of the Nymbus Sustainable Enhanced Bonds Fund and the Nymbus Multistrategy Fund for the period since they each commenced their operations in sales communications, fund facts and MRFPs.
22. The Nymbus Sustainable Enhanced Short-term Bonds Fund's current fundamental investment objectives and strategies were implemented on October 1, 2022. Accordingly, the Filer proposes to present the past performance data and other financial data of the Nymbus Sustainable Enhanced Short-term Bonds Fund since October 1, 2022, in sales communications, fund facts and MRFPs.
23. The Filer proposes to use the Funds' past performance data to determine the investment risk level of the New Classes, and to disclose that investment risk level in the fund facts and simplified prospectus. When applicable, past performance data has been adjusted to reflect differences in fees between the relevant share classes. Without the Performance Data Relief, the Filer, in determining and disclosing the Funds' investment risk level, cannot use the past performance data of the Funds that relates to a period prior to each Fund becoming a reporting issuer.
24. Without the Performance Data Relief, the sales communications and fund facts pertaining to the Funds cannot include performance data that relates to a period prior to each Fund becoming a reporting issuer.
25. Without the Performance Data Relief:
a. the sales communications pertaining to the Funds would not be permitted to include performance data until the Funds have distributed their securities under a simplified prospectus for 12 consecutive months; and
b. the MRFPs of the Funds cannot include financial highlights and performance data that relates to a period prior to each Fund becoming a reporting issuer.
26. The past performance data and other financial data of the Funds for the time period before the Funds became reporting issuers, including the use of this data to calculate the risk rating of each Fund in its simplified prospectus and fund facts document, is significant and meaningful information that can assist existing and prospective investors in making an informed decision whether to purchase units of the Funds.
27. The Filer submits that the Performance Data Relief is not detrimental to the protection of investors.
28. The investment strategies of the Nymbus Multistrategy Fund will permit the Nymbus Multistrategy Fund to sell securities short, provided that immediately after entering into a short selling transaction, the aggregate value of cash borrowed combined with the aggregate market value of securities sold short by the Nymbus Multistrategy Fund and aggregate notional amount of the Nymbus Multistrategy Fund's specified derivatives positions (other than positions held for hedging purposes, as defined in Regulation 81-102) would not exceed 300% of the NAV of the Nymbus Multistrategy Fund (the Leverage Limit). If the Leverage Limit is exceeded, the Nymbus Multistrategy Fund shall, as quickly as is commercially reasonable, take all necessary steps to reduce the aggregate value of cash borrowed combined with the aggregate market value of securities sold short and the aggregate notional amount of the Nymbus Multistrategy Fund's specified derivatives positions to be within the Leverage Limit, in compliance with section 2.9.1 of Regulation 81-102.
29. A key investment technique to be utilized by the Nymbus Multistrategy Fund includes the tactical use of market-neutral, offsetting, inverse or shorting strategies (the Absolute Return Strategies) requiring the use of short selling in excess of 50% of the NAV of the Nymbus Multistrategy Fund.
30. Absolute Return Strategies are well-recognized for limiting market risk by balancing long and short positions within an investment portfolio with the objective of providing positive returns regardless of whether the broader market rises, falls or is flat. Absolute Return Strategies are designed to have less volatility than the broader market when measured over medium to long term periods. Absolute Return Strategies also provide diversification to investors as returns are intended to be uncorrelated to the performance of the broader market; such strategies are designed to materially diminish any "beta" component from their returns and investment exposures.
31. Absolute Return Strategies include strategies which offset exposure to certain markets or provide inverse exposure to particular sets of securities. It would also fall within the investment strategies of the Nymbus Multistrategy Fund and serve to reduce market risk or keep market risk at a specified level or deliver a specific investment risk-return profile that can be utilized for the purposes of portfolio diversification.
32. In an Absolute Return Strategy, short positions can serve as both a hedge against exposure to a long position, or group of long positions, and also as a source of returns with an offsetting long position or positions. The objective of Absolute Return Strategies is to generate an attractive risk/return profile independent of the direction of broad equity markets.
33. The Nymbus Multistrategy Fund require the flexibility to enter into physical and synthetic short positions in order to implement Absolute Return Strategies, when doing so is, in the opinion of the Filer, in the best interests of the Nymbus Multistrategy Fund.
34. The Filer is an experienced investment fund manager and portfolio manager that has the ability to effectively utilize Absolute Return Strategies on behalf of the Funds.
35. The investment strategies of the Nymbus Multistrategy Fund permit, or will permit, it to sell securities short provided that, at the time the Nymbus Multistrategy Fund sells a security short (i) the aggregate market value of securities of any one issuer (other than "government securities" as defined in Regulation 81-102) sold short by the Nymbus Multistrategy Fund does not exceed 10% of the NAV of the Nymbus Multistrategy Fund, (ii) the aggregate market value of all securities sold short by the Nymbus Multistrategy Fund does not exceed 100% of its NAV, and (iii) the aggregate value of cash borrowed combined with the aggregate market value of the securities sold short by the Nymbus Multistrategy Fund does not exceed 100% of the Fund's NAV (the Total Short Selling Limit). If the Total Short Selling Limit is exceeded, the Nymbus Multistrategy Fund shall, as quickly as is commercially reasonable, take all necessary steps to reduce the aggregate value of cash borrowed combined with the aggregate market value of securities sold short to be within the Total Short Selling Limit.
36. The simplified prospectus and fund facts of the Nymbus Multistrategy Fund will comply with the requirements of Regulation 81-101 applicable to alternative mutual funds, including cover page text box disclosure in the fund facts to highlight how the Nymbus Multistrategy Fund differs from other mutual funds and emphasize that short selling strategies permitted by the Nymbus Multistrategy Fund are outside the scope of Regulation 81-102 applicable to both mutual funds and alternative mutual funds.
37. The investment strategies of the Nymbus Multistrategy Fund will clearly disclose that short selling strategies of the Nymbus Multistrategy Fund which are outside the scope of Regulation 81-102, including that the aggregate market value of all securities sold short by the Nymbus Multistrategy Fund may exceed 50% of the NAV of the Nymbus Multistrategy Fund. The prospectus will also contain appropriate risk disclosure, alerting investors of any material risks associated with such investment strategies.
38. Subject to the Performance Data Relief, the Filer will determine the risk rating for the Nymbus Multistrategy Fund using the Investment Risk Classification Methodology as set out in Appendix F of Regulation 81-102.
39. The Filer will establish comprehensive risk management policies and/or procedures that address the risks associated with short selling in connection with the implementation of the investment strategy of the Nymbus Multistrategy Fund.
40. The Nymbus Multistrategy Fund will implement the following controls when conducting a short sale:
a. The Nymbus Multistrategy Fund will assume the obligation to return to the borrowing agent the securities borrowed to effect the short sale;
b. The Nymbus Multistrategy Fund will receive cash for the securities sold short within normal trading settlement periods for the market in which the short sale is effected;
c. The Filer will monitor the short positions within the constraints of the Alternative Fund Short Sale Relief at least as frequently as daily;
d. The security interest provided by the Nymbus Multistrategy Fund over any of its assets that is required to enable the Nymbus Multistrategy Fund to effect a short sale transaction is made in accordance with industry practice for that type of transaction and relates only to obligations arising under such short sale transactions;
e. The Filer and the Nymbus Multistrategy Fund will maintain appropriate internal controls regarding short sales, including written policies and procedures for the conduct of short sales, risk management controls and proper books and records; and
f. The Filer and the Nymbus Multistrategy Fund will keep proper books and records of short sales and all assets of the Nymbus Multistrategy Fund deposited with borrowing agents as security.
41. The Nymbus Multistrategy Fund primarily invests in a diverse range of assets, including equities and derivatives instruments such as currency, commodity, index, and bond futures and options; fixed income securities, such as government and corporate bonds, asset-backed securities, commercial paper, and bond funds as well as tactically allocating capital to highly liquid listed futures and options contracts to manage risk exposures. The Nymbus Multistrategy Fund employs a multi-strategy approach, incorporating various uncorrelated long/short strategies, such as event-driven, relative value, directional, and macro strategies. The primary focus is on the Canadian and U.S. markets. By utilizing both systematic and discretionary methodologies, the Nymbus Multistrategy Fund aims to enhance diversification within its investment approach.
42. In order to achieve its investment objective, the Nymbus Multistrategy Fund will invest Exchange Traded Specified Derivatives.
43. Except to the extent that the Alternative Fund Short Sale Relief and the Deposit Concentration Relief are granted, the investment objective and strategy of the Nymbus Multistrategy Fund will be limited to the investment practices permitted under Regulation 81-102 for derivatives.
44. The Filer is or will be authorized to establish, maintain, change and close brokerage accounts on behalf of the Nymbus Multistrategy Fund. In order to facilitate transactions on behalf of the Nymbus Multistrategy Fund, the Filer will establish one or more accounts (each an Account) with one or more Dealers.
45. Each Canadian Dealer is a member of the exchanges, clearing agencies or swap execution facility through which the Exchange Traded Specified Derivatives are primarily traded. Each such exchange, clearing agency and swap execution facility is obliged to apply its surplus funds and the security deposits of its members to reimburse clients of failed members.
46. Where the U.S. Dealers are not members of an exchange over which they wish to effect a trade on behalf of the Nymbus Multistrategy Fund, they must engage a carrying broker who is a member of such exchange to effect the trade. Consequently, whether the trades are done directly by the U.S. Dealer or through a carrying broker, the U.S. Dealer is required to segregate the assets of the Nymbus Multistrategy Fund deposited as Initial Margin from the assets of the U.S. Dealer. The Nymbus Multistrategy Fund shall deposit portfolio assets as Initial Margin with a U.S. Dealer only if that dealer is required to segregate those portfolio assets from its own assets.
47. Each Dealer in Canada is a member of the Canadian Investment Regulatory Organization and is registered in the applicable Jurisdictions as a futures commission merchant or equivalent.
48. Each Dealer in the United States (each a U.S. Dealer) is regulated by the Commodity Futures Trading Commission (the CFTC) and the National Futures Association (the NFA) in the United States and is required to segregate all assets held on behalf of clients, including the Nymbus Multistrategy Fund. Each U.S. Dealer is subject to regulatory audit and must have insurance to guard against employee fraud. Each U.S. Dealer has a net worth, determined from its most recent audited financial statements, in excess of the equivalent of C$50 million. Each U.S. Dealer has an exchange assigned to it as its designated self-regulatory organization (the DSRO). As a member of a DSRO, each U.S. Dealer must meet capital requirements, comply with the conduct rules of the CFTC, NFA and its DSRO, and participate in an arbitration process with a complainant.
49. A Dealer will require, for each Account, that portfolio assets of the Nymbus Multistrategy Fund be deposited with the Dealer as collateral for transactions in Exchange Traded Specified Derivatives (the Initial Margin). Initial Margin represents the minimum initial amount of portfolio assets that must be deposited with a Dealer to initiate trading in specified derivatives transactions or to maintain the Dealer's open position in standardized futures.
50. Levels of Initial Margin are established at a Dealer's discretion. At no time will more than 70% of the NAV of the Nymbus Multistrategy Fund be deposited as Initial Margin with one or more Dealers in the aggregate.
51. The records of each Dealer will show that the Nymbus Multistrategy Fund is the beneficial owner of the Initial Margin, and evidence that, subject to the satisfaction of the Dealer's applicable margin requirements, the Nymbus Multistrategy Fund will have the right to the return of the portfolio assets deposited as Initial Margin with the Dealer, such assets being of the same issue as the deposited margin, including the same class and series, if applicable, and having the same current aggregate market value of the deposited margin at the time of such return.
52. The use of Initial Margin is an essential element of investing in Exchange Traded Specified Derivatives for the Nymbus Multistrategy Fund.
53. The Deposit Concentration Relief would allow the Nymbus Multistrategy Fund to invest in Exchange Traded Specified Derivatives more extensively with any one Dealer, which would allow the Nymbus Multistrategy Fund to pursue its investment strategy more efficiently and flexibly.
54. Opening Accounts and transacting with multiple Dealers adds complexity and cost to the management of the Nymbus Multistrategy Fund. Using fewer Dealers will considerably simplify the Nymbus Multistrategy Fund's investments and operations and will reduce the cost of implementing the Nymbus Multistrategy Fund's strategy. Using fewer Dealers also simplifies compliance and risk management, as monitoring the data, controls and policies of a smaller number of Dealers is less complex.
55. The principal regulator is satisfied that it would not be detrimental to the protection of the investors for the Deposit Concentration Relief to be granted.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that:
1. The Performance Data Relief is granted provided that:
a. any sales communication, any fund fact and MRFP that contain performance data of a Fund relating to a period prior to when that Fund was a reporting issuer discloses:
i. that the Fund was not a reporting issuer during such period;
ii. that the expenses of the Fund would have been higher during such period had the Fund been subject to the additional regulatory requirements applicable to a reporting issuer;
iii. to the extent applicable, performance data of the Fund for 1, 3, 5 and 10-year periods. The Nymbus Sustainable Enhanced Short-Term Bonds Fund will disclose its performance data starting in 2022;
iv. that the Filer obtained exemptive relief on behalf of the Fund to permit the disclosure of past performance data of the units of the Fund relating to a period prior to when the Fund was a reporting issuer; and
v. with respect to any MRFP, the financial statements of the Fund for such period are posted of the Fund's website and are available to investors upon request;
b. the information contained under the heading "Fees and Expenses" in Part A of the simplified prospectus of the Funds based on the MER of each Fund for the financial year ended December 31, 2024, be accompanied by disclosure that:
i. the information is based on the MER of each Fund for its last completed financial year when its units were offered privately; and
ii. the MER of each Fund may increase as a result of the Fund offering its units under the simplified prospectus;
c. the Prospectus under which the securities of the Funds are offered discloses that the Filer obtained exemptive relief on behalf of the Funds to permit the disclosure of past performance data of the units of the Funds relating to a period prior to when the Funds were reporting issuers;
d. the Filer posts the annual financial statements of the Nymbus Sustainable Enhanced Short-term Bonds Fund since 2022, and the audited annual financial statements of the Nymbus Sustainable Enhanced Bonds Fund and the Nymbus Multistrategy Fund since they have commenced their operations, on the Funds' website and makes those financial statements available to investors upon request;
2. the Alternative Fund Short Sale Relief is granted provided that:
a. the aggregate market value of all securities sold short by the Nymbus Multistrategy Fund does not exceed 100% of the Nymbus Multistrategy Fund's NAV;
b. the aggregate market value of securities sold short by the Nymbus Multistrategy Fund combined with the aggregate value of cash borrowing by the Nymbus Multistrategy Fund does not exceed 100% of the Fund's NAV;
c. the Nymbus Multistrategy Fund's aggregate exposure to short selling, cash borrowing and specified derivatives does not exceed the Leverage Limit;
d. the short selling activity otherwise complies with all of the short sale requirements applicable to alternative mutual funds under section 2.6.1 and 2.6.2 of Regulation 81-102;
e. the short selling activity is consistent with the Nymbus Multistrategy Fund's investment objectives and strategies; and
f. the Prospectus under which securities of the Nymbus Multistrategy Fund are offered (i) discloses that the Nymbus Multistrategy Fund can sell securities short up to, and subject to, the limits described in subparagraphs (a) to (e) above; and (ii) describes the material terms of this decision; and
3. the Deposit Concentration Relief is granted provided that:
a. the Nymbus Multistrategy Fund does not invest in derivatives that are not Exchange Traded Specified Derivatives;
b. the Nymbus Multistrategy Fund only uses Initial Margin such that the amount of Initial Margin held by any one Dealer on behalf of the Nymbus Multistrategy Fund does not exceed 35% of the NAV of the Nymbus Multistrategy Fund, taken at market value as at the time of the deposit; and
c. the Nymbus Multistrategy Fund only uses Initial Margin such that the amount of Initial Margin held by Dealers in aggregate on behalf of the Nymbus Multistrategy Fund does not exceed 70% of the NAV of the Nymbus Multistrategy Fund as at the time of the deposit.
Temporary, Permanent & Rescinding Issuer Cease Trading Orders
Company Name |
Date of Temporary Order |
Date of Hearing |
Date of Permanent Order |
Date of Lapse/Revoke |
|
||||
THERE IS NOTHING TO REPORT THIS WEEK. |
||||
Company Name |
Date of Order |
Date of Revocation |
|
||
PharmaCielo Ltd. |
August 5, 2025 |
October 27, 2025 |
Temporary, Permanent & Rescinding Management Cease Trading Orders
Company Name |
Date of Order |
Date of Lapse |
|
||
THERE IS NOTHING TO REPORT THIS WEEK. |
||
Outstanding Management & Insider Cease Trading Orders
Company Name |
Date of Order or Temporary Order |
Date of Hearing |
Date of Permanent Order |
Date of Lapse/Expire |
Date of Issuer Temporary Order |
|
|||||
Performance Sports Group Ltd. |
19 October 2016 |
31 October 2016 |
31 October 2016 |
__________ |
__________ |
Company Name |
Date of Order |
Date of Lapse |
|
||
Agrios Global Holdings Ltd. |
September 17, 2020 |
__________ |
|
||
Sproutly Canada, Inc. |
June 30, 2022 |
__________ |
|
||
iMining Technologies Inc. |
September 30, 2022 |
__________ |
|
||
Alkaline Fuel Cell Power Corp. |
April 4, 2023 |
__________ |
|
||
mCloud Technologies Corp. |
April 5, 2023 |
__________ |
|
||
FenixOro Gold Corp. |
July 5, 2023 |
__________ |
|
||
HAVN Life Sciences Inc. |
August 30, 2023 |
__________ |
|
||
Perk Labs Inc. |
April 4, 2024 |
__________ |
|
||
Dye & Durham Limited |
September 30, 2025 |
__________ |
Issuer Name:
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Filing #06240361
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Filing #06340747
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Issuer Name:
Principal Regulator -- Ontario
Type and Date:
Offering Price and Description:
Filing # 06349571
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Principal Regulator -- British Columbia
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Filing # 06349410
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Issuer Name:
Principal Regulator -- Ontario
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Filing # 06348752
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Issuer Name:
Principal Regulator -- Ontario
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Filing # 06348752
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Principal Regulator -- British Columbia
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Filing # 06336849
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Issuer Name:
Principal Regulator -- Alberta
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Offering Price and Description:
Filing # 06345626
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Principal Regulator -- Ontario
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Filing # 06344219
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Issuer Name:
Principal Regulator -- Ontario
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Offering Price and Description:
Filing # 06350307
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Principal Regulator -- British Columbia
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Filing # 06343673
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Principal Regulator -- British Columbia
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Filing # 06348964
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Principal Regulator -- Ontario
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Offering Price and Description:
Filing # 06344898
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Issuer Name:
Principal Regulator -- Saskatchewan
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Offering Price and Description:
Filing # 06346371
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Principal Regulator -- Ontario
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Offering Price and Description:
Filing # 06349598
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Issuer Name:
Principal Regulator -- Ontario
Type and Date:
Offering Price and Description:
Filing # 06336824
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THERE IS NOTHING TO REPORT THIS WEEK. |
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Canadian Derivatives Clearing Corporation (CDCC) -- Proposed Amendments to the Rules of CDCC Regarding the Offering of Clearing Services to Certain U.S. Clearing Members for Certain Exchange-Traded Derivatives -- Notice of Material Rule Submission
CDCC has submitted to the Commission proposed amendments to the CDCC Rules to allow direct access to its clearing services to non-Canadian entities from other jurisdictions, namely US Futures Commission Merchants (FCMs), to facilitate the offering of clearing services for eligible exchange-traded contracts.
The proposed amendments aim at expanding the membership eligibility criteria of the Rules to allow US FCMs to apply and be admitted as CDCC direct clearing members and clear eligible products traded on the Bourse de Montréal Inc.
The proposed amendments have been posted for public comment on CDCC's website. The comment period ends on December 1, 2025.