1. Background to the Amendments

1. Earlier Proposals to Regulate Electronic Access to Marketplaces

In October 2012, IIROC published proposed provisions (“Prior Proposed Provisions”) respecting third-party electronic access to marketplaces.4 The Prior Proposed Provisions recognized that OES was a component of the “closed-system” for the entry of orders to marketplaces. The only means to access a marketplace for the purpose of trading a listed or quoted security is as an Access Person, as a subscriber to an ATS or by or through a Participant as a member of an Exchange or subscriber to an ATS.  Unless a client order is directly handled by staff at a Dealer Member, the only access that can be provided to a client falls under one of three options:

• OES,
• direct electronic access (“DEA”), or
• routing arrangement.

The Prior Proposed Provisions recognized that the use of OES may present risks similar to other methods of third-party electronic access.  IIROC was of the view that OES was originally intended to provide a non-advised platform for electronic access to a marketplace to Retail Customers and it was inappropriate for OES Dealers to carry accounts of Institutional Customers. Thus, the Prior Proposed Provisions proposed to prohibit accounts for Institutional Customers from being carried by OES Dealers. The policy rationale for this prohibition was to ensure that all third-party electronic access to a marketplace was subject to a consistent level of oversight and compliance and to eliminate any potential regulatory arbitrage between platforms.

The Prior Proposed Provisions further recognized that an OES Dealer may determine that in limited circumstances knowledgeable and experienced Retail Customers, such as ex-professional traders, may be more appropriately serviced through DEA rather than OES.     

The Prior Proposed Provisions also prohibited an OES client from:

• generating orders to the Dealer Member that exceed the threshold on the number of orders as set by IIROC from time to time, or
• using its own automated order system to transmit or generate orders for transmission to an OES Dealer for execution on a marketplace.

1. Final Provisions Respecting Third-Party Electronic Access to Marketplaces

Following a review of comments received on the Prior Proposed Provisions, and further industry consultation, IIROC did not proceed with the prohibition against OES Institutional Customer accounts. On July 4, 2013 IIROC published final provisions respecting third-party electronic access to marketplaces.5 The provisions respecting third-party electronic access to marketplaces, including certain provisions related to OES accounts, became effective on March 1, 2014.

1. Current DMR Retail Customer Supervision Requirements Respecting Market Integrity

DMR 38.1 and DMR 2500 require each Dealer Member to implement systems of supervision and control and establish minimum standards for Retail Customer account supervision. Under these rules, a Dealer Member is required to establish and maintain policies and procedures designed to supervise account activity for compliance with the DMR and all other laws, regulations and policies applicable to the Dealer Member’s securities business. The policies and procedures employed by the Dealer Member to supervise account activity must provide reasonable assurance that its obligations are being met both to its clients and to the market generally, including the prevention of market abuses.

1. Current DMR Institutional Customer Supervision Requirements Respecting Market Integrity

DMR 38.1 and DMR 2700 set out the minimum standards for the supervision of account activity for Institutional Customers.  A Dealer Member is not precluded from imposing higher standards when warranted.  As with the requirements under DMR 2500, the Dealer Member’s policies and procedures and the design of the systems of supervision and control must take into consideration all factors necessary to ensure the adequacy of the supervision. The requirements set out in DMR 2700 include supervisory elements that are applicable to both the interests of the client and the interests of the market generally.

The supervisory procedures and compliance monitoring regime should be reasonably designed to detect account activity that may violate applicable securities legislation, requirements of any self-regulatory organization applicable to the account activity and the rules and policies of any marketplace on which the account activity takes place.  The supervisory policies and procedures and the systems of supervision and control must be reasonably designed to detect account activity which may be harmful to market integrity, including manipulative and deceptive activities.

1. UMIR Supervision Requirements Respecting Order Entry with Limited Direct Order Handling by Staff of the Participant

Part 1 of UMIR Policy 7.1 provides that a Participant has an obligation to supervise orders which are entered on a marketplace:

• by a trader employed by the Participant;
• by an employee of the Participant though an order routing system;
• directly by a client and routed to a marketplace through the trading system of the Participant; or
• by any other means.

The manner through which an order is entered on a marketplace does not relieve a Participant of responsibility for the supervision of such orders.  The supervisory policies and procedures maintained by a Participant required under UMIR 7.1 must be designed to include all sources of order entry including orders that originate from retail full service brokerage and OES clients.

In meeting its supervisory obligations, a Participant is expected to act as “gatekeeper” to prevent and detect violations of applicable Requirements.6
 A Participant’s supervision policies and procedures should adequately address the additional risk exposure which the Participant may have for orders that are not directly handled by staff of the Participant, such as OES, DEA or through a routing arrangement.

1. Discussion of the Amendments

The following is a summary of the principal components of the Amendments which are set out in this notice at Appendix A with respect to DMR Amendments and Appendix B with respect to UMIR Amendments.

1. Active Client Measurement

UMIR requires that each client, investment dealer or foreign dealer equivalent accessing a marketplace through DEA or through a routing arrangement is assigned a client ID and the identity of the client associated with each client ID be provided to IIROC.  This information assists IIROC with monitoring and surveillance activities.  IIROC believes that clients that trade actively through OES may pose similar risks to market integrity as clients that trade though DEA or through a routing arrangement.  Inconsistent levels of transparency of client identity to IIROC can result in an incomplete regulatory framework by enabling an active OES client to avoid the amount of regulatory oversight that would otherwise be applied to the client if trading through DEA or a routing arrangement.

The Amendments introduce a threshold that determines whether an OES client is considered “active” for the purpose of client ID.  In the Amendments, an OES client is considered “active” if its account activity on marketplaces exceeds an average of 500 orders per trading day in any calendar month.

The Amendments require that client IDs be assigned to any OES client that meets the threshold. IIROC will adopt the use of client account numbers for the purpose of client ID’s. Client account numbers would be required to be included, in a manner acceptable to IIROC, on each order entered by or on behalf of an “active” client on a marketplace.

1. Identification of Clients that are Registered as a Dealer or Adviser Under Applicable Securities Legislation and are not Individuals and are in the Business of Trading Securities in a Foreign Jurisdiction in a Manner Analogous to a Dealer or Adviser

In addition to those clients described in section 2.1 above, the Amendments also require that client IDs be assigned to any OES client that is:

• registered as a dealer or adviser under applicable securities legislation, or
• not an individual and are in the business of trading securities in a foreign jurisdiction in a manner analogous to a dealer or adviser.

The requirement to identify clients who are registered as a dealer or adviser under applicable securities legislation as well as “foreign equivalents” is consistent with the application of the ETR/DEA Rules and places such clients on a level playing field with similar clients who access the marketplace through other forms of third-party electronic access. As with “active” clients, IIROC will adopt the use of client account numbers for the purpose of client ID’s.

1. Limiting the Requirement to Provide Client Identifiers to Activity that Occurs on Marketplaces for which IIROC is the Regulation Services Provider

The Amendments only require the use of a client IDs on orders sent to marketplaces that have retained IIROC as their regulation services provider.  This is consistent with the order information currently received by IIROC for clients accessing the marketplace through DEA or Routing Arrangements.

1. Definition of Manipulative and Deceptive Activities

The Amendments introduce a definition of Manipulative and Deceptive Activities to the Dealer Member Rules. This definition:

• clarifies a Dealer Member’s supervision requirements for Retail Customer account activity under DMR 2500;
• clarifies a Dealer Member’s supervision requirements for Institutional Customer account activity under DMR 2700; and
• conforms with UMIR 2.2 (2)7 respecting manipulative and deceptive activities.

DMR 2500 and DMR 2700 require that a Dealer Member’s supervisory policies and procedures are reasonably designed to detect account activity that is or may be a violation of requirements applicable to the Dealer Member’s business. Currently, both DMR 2500 and DMR 2700 require that a Dealer Member’s supervision of account activity include a review for activity that may be manipulative or deceptive. DMR 2500 includes “manipulative or deceptive trading” in the requirements respecting daily reviews. DMR 2700 requires as part of the requirements relating to the supervision of accounts that a Dealer Member’s policies and procedures are reasonably designed to detect account activity that is or may be a violation of applicable securities legislation, requirements of any self-regulatory organization applicable to the account activity and the rules and policies of any marketplace on which the account activity takes place. “Manipulative or deceptive methods of trading” is specifically included in these requirements. The definition in the DMR Amendments clarifies that manipulate and deceptive activities are not limited only to trades, but extend to the entry of orders to a marketplace.

The DMR Amendments include wording changes in DMR 2500 and 2700 to align the rules to the new definition in the DMR of “Manipulative and Deceptive Activities”.

1. Supervision Requirements Specific to OES

IIROC believes that the entry to a marketplace of orders that are not directly handled by staff of the Dealer Member may introduce additional risk to the integrity of the market.   Order entry through OES eliminates an opportunity for staff of a Dealer Member to identify and detect unusual orders or trading patterns prior to an order being entered on a marketplace.  A Dealer Member must consider this heightened risk when developing its policies and procedures respecting the supervision of account activity and, in particular, activity that is or may be considered Manipulative or Deceptive Activity.

Currently, an OES Dealer that is also a Participant is required to consider the heightened risk exposure for orders that are not directly handled by staff of the Participant. UMIR Policy 7.1 Part 1 states:

“In performing the trading supervision obligations, the Participant will act as a “gatekeeper” to help prevent and detect violation of applicable Requirements. When an order is entered on a marketplace by direct electronic access, under a routing arrangement or through an order execution service, the Participant retains responsibility for that order and the supervision policies and procedures should adequately address the additional risk exposure which the Participant may have for orders that are not directly handled by staff of the Participant…”

The DMR Amendments introduce a requirement for an OES Dealer to consider the heightened risks associated with the entry of orders that are not directly handled by staff of the Dealer Member.  Identifying and addressing these risks in its policies and procedures and its systems of supervision and control is consistent with the supervision requirements applicable to other forms of third-party electronic access.

1. Changes from the Proposed Amendments and the Proposed Guidance

The Amendments as approved only vary slightly from the re-publication of the Proposed Amendments.  Wording changes were made to subsections A.5(b), A.5(c), B.6(b) and B.6(c) of DMR 3200 for the purpose of drafting consistency. These changes were not material and do not affect the application or effect of the rule.

No changes were made to the re-publication of  the Proposed Guidance.

1. Summary of the Impact of the Amendments

The technological implications of the Amendments on OES Dealers are primarily limited to any development required to include client IDs on all orders for certain clients that trade on marketplaces through OES platforms.  Participants that execute for OES Dealers would also be required to make any necessary changes to their systems to accommodate the use of client IDs on orders originating from an OES Dealer.

IIROC does not expect the supervision requirements in the DMR Amendments to have significant new implications as Dealer Members are currently required to have reasonable policies, procedures and systems of supervision and control in place that are reasonably designed to achieve compliance with the requirements applicable to the Dealer Member’s business. The Amendments build on current supervision requirements and specifically require an OES Dealer, when developing its policies, procedures and systems of supervision and control, to consider the increased risk that arises when the methods used to enter orders limit the amount of “gatekeeping” that can be done directly by staff of the Dealer Member.

1. Implementation

The Amendments have been approved by the applicable securities regulatory authorities as of the date of this Rules Notice. The Amendments become effective on June 1, 2015.

Appendix A – Text of DMR Amendments

Appendix B – Text of UMIR Amendments

Appendix C – Comments Received in Response

Appendix D – Text of the Dealer Member Rules

Appendix E – Text of UMIR

• 4See IIROC Notice 12-0315– Rules Notice – Request for Comments – UMIR and Dealer Member Rules – Proposed Provisions Respecting Third-Party Electronic Access to Marketplaces (October 25, 2012). 
• 5See IIROC Notice 13-0184- Rules Notice – Notice of Approval – UMIR and Dealer Member  Rules – Provisions Respecting Third-Party Electronic Access to Marketplaces (July 4, 2013).
• 6“Requirements” means, collectively: • UMIR; • the Policies; • the Trading Rules; • the Marketplace Rules; • any direction, order or decision of the Market Regulator or a Market Integrity Official; and • securities legislation, as amended, supplemented and in effect from time to time.
• 7UMIR 2.2 (2) provides:
  A Participant or Access Person shall not, directly or indirectly, enter an order or execute a trade on a marketplace if the Participant or Access Person knows or ought reasonably to know that the entry of the order or the execution of the trade will create or could reasonably be expected to create:
  a) a false or misleading appearance of trading activity in or interest in the purchase or sale of the security; or
  b) an artificial ask price, bid price, or sale price for the security or a related security.