PROVISIONS RESPECTING SHORT SALES AND FAILED TRADES 

Notice of Approval

This Rules Notice provides notice of the approval by the applicable securities regulatory authorities (the “Recognizing Regulators”), effective October 14, 2008, of amendments to the Universal Market Integrity Rules (“UMIR”) respecting various aspects of short sales and failed trades (the “Amendments”).  In particular, the Amendments:

• require that notice be provided to a Market Regulator if, after the execution of a trade, the trade is varied (with respect to price, volume or settlement date) or cancelled;
• provide that the Market Regulator may designate particular securities or class of securities as being ineligible for short selling;
• provide a definition of a “failed trade” and require that a report of a “failed trade” be made to a Market Regulator if the reason for the failure is not resolved within ten trading days following the original settlement date of the trade; and
• clarify certain requirements that must be met for a seller to be considered the owner of securities at the time of a sale.

Certain of the Amendments, while approved by the applicable securities regulatory authorities, will become effective on a future date.  See “Implementation Plan” on pages 17 and 18.

The Amendments have been revised from the proposals contained in Market Integrity Notice 2007-017 – Request for Comments – Provisions Respecting Short Sales and Failed Trades (September 7, 2007) (the “Short Sale and Failed Trade Proposal”).  The provisions in the Short Sale and Failed Trade Proposal to:

• repeal the restrictions on the price at which a short sale may be made; and
• eliminate the requirement to file “Short Position Reports”

have been deferred at this time and are not part of the Amendments.
 

Background to the Amendments

                Statistical Study of Failed Trades on Canadian Marketplaces

The Amendments build on a study of failed trades undertaken by Market Regulation Services Inc. (“RS”) in 2006 (the “RS Failed Trade Study”).3  The RS Failed Trade Study found that:

• failed trades accounted for 0.27% of the total number of trades executed;
• the more “junior” the marketplace in terms of the type of security traded, the higher the incidence of failed trades;4
• special settlement trades experienced a significantly higher rate of failure (6.15% of trades compared to 0.26% for regular settlement trades);
• the predominant cause of failed trades was administrative delay or error5, which accounted for almost 51% of fails;
• less than 6% of fails resulting from the sale of a security involved short sales;
• fails involving short sales accounted for only 0.07% of total short sales;
• “buy-ins” were executed in only 4% of failed trades; and
• the average “failed” trade was settled 4.2 days after the “expected settlement date” with fully 96% of failed trades settled within 10 days after the “expected” settlement date.

The RS Failed Trade Study was conducted in early August of 2006 and, during that time, approximately 24% of sales made by dealers participating in the study were short sales.  However, the RS Failed Trade Study found that only 6% of fails resulting from the sale of a security involved a short sale.  This finding is at odds with the presumption underpinning the “fails list” provisions in the United States which further restricts short sales when a security passes the threshold on “fails” and is added to the fails list.  Based on the results of the RS Failed Trade Study, the Amendments will require a Participant to file a report with IIROC if the failed trade is not resolved within 10 days following the settlement date, and that a further report be submitted once the problem has been rectified.  In this way, the specific trades which are problematic will be brought to the attention of the regulator for further review and action if appropriate.  IIROC expects that one outcome of this aspect of the Amendments will be enhancements in the policies and procedures of Participants to minimize the number of trades that will be subject to these reporting requirements (the by-product of which would be a reduction in the average number of days that a failed trade remains “outstanding”).

                Recent Trends in Trading Activity, Short Selling and Failed Trades

Concurrent with the issuance of the Rules Notice requesting comments on the Pre-Borrow Requirement, IIROC will be issuing an Administrative Notice setting out the results of a statistical report on trends on Canadian marketplaces in the period May 1, 2007 to September 30, 2008 (the “Study Period”) with respect to overall trading activity, short selling and failed trades.

Based on the information derived during the Study Period:

                                Trading Activity

• the number of trades in securities listed on the Toronto Stock Exchange (“TSX”) has been increasing throughout the Study Period across all marketplaces trading those securities with the increase concentrated in trading of:
  • securities inter-listed between the TSX and an exchange in the United States (“inter-listed securities”), and
  • Exchange-traded Funds (“ETFs”);
• while the number of trades in securities listed on the TSX Venture Exchange (“TSXV”) or Canadian Trading and Quotation System Inc. (“CNQ”) has varied significantly throughout the Study Period, the overall  trend appears to be a reduction in the total number of trades per trading day ;
• in periods of increased “market stress”:
  • trading activity as measured by number of trades, value traded and volume traded exceeds the average for the Study Period,
  • there is generally a lower than average level of short selling activity on the TSXV and CNQ,
  • there is a higher number of trades per alert generated on the TSX, and
  • the average number of statistical alerts generated per trading day decreases in relation to increases in the level of trading;
• over the Study Period, the average volume of a trade:
  • in an inter-listed security generally declined on the TSX,
  • on a new marketplace increased from levels at the time of launch,
  • in securities listed on TSXV and CNQ increased slightly;

                                Short Sales

• the more “senior” the security the higher the proportion of short sales;
• short sales tend to have a lower volume but higher value than sales from a “long position” (indicating a concentration of short sale activity in more senior and liquid securities on each of the marketplaces);
• short selling activity accounts for a disproportionate level of the trading activity on 3 of the 4 “new” marketplaces (possibly indicating a concentration of arbitrage and algorithmic trading);
• less than two-thirds of the short sales that qualify as “short exempt” are in fact marked in this manner (though the proportion of short sales that are marked as “exempt” has been increasing since the grant of the exemption from price restrictions in July of 2007);
• there has been an increase in the proportion of short sales involving inter-listed securities since the grant of the exemption from price restrictions in July of 2007;
• other than the increase in short sales of inter-listed securities, there has been no significant change over the Study Period in the pattern of short selling in comparison with the trading of securities generally;

                                Failed Trades

• over the Study Period:
  • the number of failed trades as a percentage of the overall number of trades has generally been declining,
  • on average, 4.95% of failed trades are closed out through the execution of a “buy-in” on a marketplace, and
  • the accumulated value of failed trades as a percentage of the value of trades has generally been declining; and
• “market stress” does not appear to have an impact on the rate or value of trade failures.

This report compares the recent Canadian experience with short sales and failed trades with the situation in the United States.  In particular, the analysis undertaken by IIROC does not support the need in Canada for a number of the actions recently taken by the Securities and Exchange Commission (“SEC”) in the United States, including proposed amendments to Regulation SHO.

It is the intention of IIROC to update the results of the statistical report on a periodic basis.  The update will be provided to the Recognizing Regulators and will be made publicly available through the issuance of an IIROC Notice.

                Deferral of Aspects of the Short Sale and Failed Trade Proposal

Deferral of Proposal to Repeal of Price Restrictions on All Short Sales

Under the Short Sale and Failed Trade Proposal, one of the proposals was the repeal of all restrictions on the price at which a short sale may be made.  This aspect of the Short Sale and Failed Trade Proposal would parallel action taken by the SEC in 2007 to repeal price restrictions on short sales in the United States.6

However, in light of recent actions taken by the SEC on a temporary basis to restrict or prohibit short sales on securities of financial issuers or issuers generally and given the concern expressed in the media that the repeal of price restrictions on short sales in the United States may have contributed to the volatility experienced in US markets, IIROC determined to defer at this time consideration of the repeal of price restrictions.  Any proposal to consider the ratification or withdrawal of that portion of the Short Sale and Failed Trade Proposal dealing with the repeal of the price restrictions on short sales would be made if:

• the SEC indicates that it intends to propose the reintroduction of price restrictions or other similar restrictions or prohibitions on short sales in the United States;
• statistical data becomes available on the impact of the repeal of price restrictions on inter-listed securities that became effective in July of 2007; or
• the launch of a marketplace or a facility of a marketplace that does not system-enforce the price restrictions or the listing exchange ceases to be the “principal” market would introduce problems for Participants and Access Persons to comply with the existing UMIR provisions.

Deferral of Proposal to Repeal the Requirement for Short Position Reports

IIROC has decided to defer further consideration of that aspect of the Short Sale and Failed Trade Proposal that would have repealed the requirement for Participants and Access Persons to prepare and file a short position report on a semi-monthly basis.  To replace the aggregation of the information in the short position reports filed by Participants and Access Persons into the Consolidated Short Position Report (“CSPR”), IIROC envisaged the dissemination by third parties of periodic summary reports of short sales effected on marketplaces in particular securities.  IIROC will pursue the introduction of the trade summaries on the most cost effective and efficient basis (after consultation with the applicable securities regulatory authorities and marketplaces).  At this time, IIROC believes that the options for the preparation of a consolidated summary report would be by:

• marketplaces acting co-operatively (in a manner similar to the preparation of the CSPR today);
• IIROC using the regulatory feed provided for trades on all regulated marketplaces; or
• the information processor, if one is approved for all regulated marketplaces.

IIROC would propose to pursue the repeal of Rule 10.10 only once IIROC is satisfied that adequate information on short sales executed on a marketplace has become generally available and there has been a period of at least six months to a year following the introduction of the summary reports on short sales executed on marketplaces during which both the summaries and the CSPR would be available.  The availability of both types of reports will allow the current users of the CSPR an opportunity to evaluate the information provided by trading summaries and would provide IIROC an opportunity to track the relationship between information provided in the CSPR with the marketplace trading summaries.

Exemption from Price Restrictions on Short Sales for Inter-listed Securities

In light of the decision of the SEC to remove price restrictions on short sales, IIROC granted, effective July 6, 2007, an exemption from the price restrictions on a short sale under Rule 3.1 of UMIR in respect of securities which are inter-listed on an exchange in the United States (the “Inter-listed Exemption).7  Under the Inter-listed Exemption, if a security is listed on an Exchange and is also listed on an exchange in the United States, a short sale of the security may be entered on any marketplace using the “short exempt” marker.  Securities which trade on an ECN in the United States but are not otherwise listed on an exchange in the United States do not qualify for the exemption.  With the decision to defer final consideration of that aspect of the Short Sale and Failed Trade Proposal dealing with the repeal of price restrictions on short sales of all securities, the Inter-listed Exemption will continue in force until the approval by the Recognizing Regulators or the withdrawal by IIROC from consideration of this aspect of the Short Sale and Failed Trade Proposal.

                Other Monitoring Initiatives

To assist in the monitoring of short sales, IIROC will introduce additional alerts to its trade monitoring systems that will detect changes in the historic pattern of short selling for a particular security.  To ensure an accurate audit trail, IIROC has introduced effective August 1, 2008 new automated procedures for correcting order markers including “bundled” orders which contain sales from both a long and a short position which have been marked as “short” or “short exempt”.  Historically, “bundled” orders were to have been entered on a market with the most restrictive of the order markers applicable to any order in the bundle.  (Reference should be made to IIROC Notice 08-0033 – Rules Notice – Guidance Note – New Procedures for Order Marker Corrections and IIROC Notice 08-0050 – Rules Notice – Guidance Note – User Guide for the Regulatory Marker Correction Form.)

            Impact Study

With the approval of the Amendments, IIROC will undertake an empirical study (“Impact Study”) of:

• the impact of the Amendments;
• the effects of granting the Inter-listed Exemption; and
• the possible effects of a full repeal of all price restrictions on short sales. 

It is the intention of IIROC to engage third party consultants to undertake the Impact Study.  The construction and methodology of the Impact Study will be based on the recommendations of the consultants.  The results of the Impact Study will be published by IIROC through the issuance of one or more IIROC Notices and the public will be provided with an opportunity to comment on the results of the Impact Study.

IIROC anticipates that the Impact Study would:

• analyze trading and settlement activity of listed securities (including both liquid and illiquid securities listed on TSX, TSXV and CNQ);
• cover a period of at least one year prior to and one year following the approval date of the Amendments; and
• be based on five or more categories of listed securities being:
  • securities inter-listed with an exchange in the United States,
  • securities which qualify as “highly-liquid”, and
  • at least three tiers of “illiquid” securities determined by relative liquidity.  

The Impact Study will attempt to determine whether the Amendments or the Inter-listed Exemption had an effect on:

• volume of short selling;
• rates of trade failure;
• the relationship, or the lack thereof, between levels of short selling and trade failure;
• the ability to detect manipulative or deceptive trading in circumstances when abusive short selling has occurred;
• price volatility and the operation of the price discovery mechanism; and
• levels of displayed liquidity.

The Impact Study will also attempt to determine whether there was any difference in the effects based on the presence of “market stress” for the particular security or securities generally.  In this context, “stress” would be measured by unusual volumes or price movement.

While the “Pilot Project” undertaken in the United States on behalf of the SEC in connection with the removal of price restrictions on short sales had found no evidence that the results of the Pilot Project would not be applicable to smaller or less liquid securities, the Impact Study would attempt to confirm whether this finding was applicable in the Canadian context.  If the Impact Study found that the effect of the approved amendments varied significantly due to the liquidity of the issuers or if the Impact Study found deterioration in the rate of trade settlement, IIROC would then consider whether other additional amendments should be made to UMIR to incorporate comparable provisions from Regulation SHO (such as locate requirements, fail lists and close-out requirements.)  IIROC may also consider whether price restrictions on short sales should be re-introduced for certain types of illiquid securities.

In the view of IIROC, there is no one measure from the Impact Study that would be determinative on the question of whether price restrictions should be reinstated with respect to the securities subject to the Inter-listed Exemption or repealed with respect to securities currently subject to price restrictions on a short sale.  Rather, reinstatement should be considered if one or more of the following trends emerged (either generally or in connection with trading of a particular marketplace or type of security):

• an increase in the proportion of “failed trade reports” in relation to overall trading activity combined with an increase in the proportion of “short sale” transactions covered by the “failed trade reports”;
• a significant increase in the failure rates of trade on regular settlement date (for which no explanation other than short sale failure is readily apparent);
• an increasing number of securities being designated as a “Short Sale Ineligible Security”;
• a disproportionate increase in the number of trading alerts generated by IIROC’s monitoring systems involving short sales; and
• a disproportionate increase in the number of cases subject to review or investigation by IIROC involving short sales.

The Impact Study will also provide an opportunity to track the relationship between information provided from the CSPR with that provided in the periodic trading summaries of short selling activity on marketplaces.  If the Impact Study concludes that the trading summaries are an appropriate replacement for the CSPR, IIROC would pursue an amendment to UMIR through the publication of a Rules Notice requesting comment on the repeal of Rule 10.10.  (See “Deferral of the Proposal to Repeal the Requirement for Short Position Reports” on page 6.)

Staff of IIROC considered a proposal for a “pilot project” (which would have provided an exemption from the price restrictions on a short sale for a range of securities including both highly-liquid and “illiquid” securities prior to repealing the price restrictions for all securities) as an alternative to the Impact Study.  The TSXV currently does not support the “short exempt” marker.  While the TSXV has indicated an intention to introduce the “short exempt” marker, the TSXV has not publicly announced a timetable for its introduction.  The introduction of a pilot project would either have to be delayed until the TSXV had implemented the “short exempt” marker or would have necessitated significant programming changes by TSXV and possibly Participants accessing that marketplace in order to enable the price restrictions to be suspended for a subset of TSXV securities.  As such, in the opinion of IIROC staff, a pilot project could not be implemented in a cost efficient and timely manner (as compared to the repeal of price restrictions on short sales of all securities accompanied by an impact study).

CSA/SRO Working Group on Short Selling and Failed Trade Issues

IIROC staff are participating (and prior to June 1, 2008 staff of both RS and the Investment Dealers Association of Canada (“IDA”) participated) in an informal working group comprised of staff from the Canadian Securities Administrators (“CSA”), Canadian Depository for Securities Limited (“CDS”), Toronto Stock Exchange and the Bourse de Montréal (the “Working Group”) that has been examining various issues related to failed trades and short sales, including the role that short sales play in the occurrence of failed trades.  The Working Group is monitoring developments in the US, including proposals by the SEC to amend Regulation SHO. 

The Working Group will be provided with the periodic updates published by IIROC to the Recent Trends in Trading Activity, Short Selling and Failed Trades.  The Working Group will also be provided with any interim analysis prepared as part of the Impact Study.  If settlement rates deteriorate after the implementation of the Amendments, either generally or for specific classes of securities, then IIROC would support additional initiatives by the marketplaces, CDS, CSA or the Member Regulation Policy Department of IIROC.  Similarly, if significant “problems” emerged during this period with respect to the execution or settlement of short sales, IIROC and the other members of the Working Group would be in a position to consider appropriate additional regulatory responses.  

Summary of the Amendments

The following is a summary of the principal components of the Amendments:                        

Additional Restrictions on Short Sales

                Definition of “Short Sale Ineligible Security”

The Amendments allow the Market Regulator to designate a particular security or a class of securities as being ineligible to be sold “short”.  The purpose of this provision is to provide additional flexibility to the Market Regulator to respond to developments in trading of a particular security or class of securities if rates of failed trades become, in the opinion of the Market Regulator, excessive.8  The Amendments also provide an exemption to permit a short sale of a “Short Sale Ineligible Security” if the sale is undertaken in furtherance of Market Maker Obligations or by a derivatives market maker.

The criteria which IIROC would use in pursuing a designation of a security have been specifically set out in Part 4 of Policy 1.1.  If, based on reports of failed trades submitted to IIROC in accordance with the requirements of Rule 7.10 or other sources of information, IIROC became aware of systemic failures to settle trades in a particular security or class of securities that were related to short selling activity, the Amendments would permit IIROC to designate the particular security or class of securities as being ineligible for a short sale in the interest of a fair and orderly market.  Since the RS Failed
Trade Study indicated that short selling was not the primary reason for the existence of failed trades, IIROC is of the view that a statistical threshold would not by itself be appropriate and IIROC must determine that short selling is exacerbating the situation before determining to seek to designate the security as being ineligible for further short selling.  IIROC is of the view that there are greater risks to market integrity if a series of dealers experience prolonged trade failures for relatively minor number of shares of security that is illiquid than from the failure of a single block trade (due possibly to administrative problems or delays at a custodian) in a highly-liquid security.

In the view of IIROC, the need to make a designation will be a relatively rare occurrence.  Since the introduction of UMIR, there has been no instance when either RS or IIROC would have sought approval for such a designation.  However, IIROC acknowledges that the repeal of price restrictions on short sales will likely result in increased volatility for less liquid securities.  In addition, IIROC acknowledges that junior issuers are concerned with the possibility of “bear raids”.  IIROC is of the view that the activity which is part of a “bear raid” will be detected in accordance with existing monitoring standards employed by IIROC and that such activity may be contrary to existing prohibitions on manipulative and deceptive behaviour.9  The concept of a “Short Sale Ineligible Security” is a “backstop” in the event that the repeal of price restrictions on short sales had an “unintended” impact on short selling activity or if short sales were found to be a principal reason for inordinate “failures” in the settlement of trades in a particular security.

IIROC does not believe that a designation will have to be made in “real time”.  The circumstances which will lead to the need to designate a security will build over a period time (e.g. for a particular security, IIROC may see an increasing number of Failed Trade Reports, issuance of “buy-in” notices by CDS, an increasing proportion of short sales, unusual price or volume movements etc.)  No one factor would necessarily lead to IIROC determining to seek a designation.  Also, it is not possible to provide quantitative “thresholds” for each of the factors that would be taken into account by IIROC.  IIROC would consider the circumstances of the particular issuer (e.g. whether the issuer has outstanding securities in respect of which conversion or other rights are tied to the market price of the security or whether the issuer has announced an intention to undertake a significant public offering, private placement or rights offering).

IIROC will only designate a security as a “Short Sale Ineligible Security” with the concurrence of the applicable securities regulatory authorities.  IIROC will seek that concurrence in a designation from:

• each securities regulatory authority governing the conduct of trading of a marketplace on which the security is listed or quoted;
• each securities regulatory authority of a jurisdiction in which the issuer of the listed or quoted security is a reporting issuer; and
• each securities regulatory authority that has given notice to IIROC that it wishes to be consulted on a designation.

While IIROC does not believe that a designation will have to be made in “real time”, IIROC nonetheless believes that any designation will have to be “timely” in order to address situations arising in the marketplace.  If IIROC detects “unusual circumstances” and that a “problem” was developing, IIROC would generally intend to issue an IIROC Notice providing market participants with notice that, with respect to the particular security, they should ensure their ability to borrow or obtain securities for settlement in advance of any sale.  This notice by IIROC would provide an “early warning” to those securities regulatory authorities that would be asked to concur in the designation of any security as being a “Short Sale Ineligible Security”.  IIROC would continue to monitor trading in the particular security to determine if further action was warranted.

Under the Amendments, a short sale of a security that is designated as a “Short Sale Ineligible Security” may not be made.  The Amendments contain a number of exemptions from this prohibition including if the order is entered on a marketplace:

• in furtherance of the applicable Market Maker Obligations in accordance with the Marketplace Rules of that marketplace;
• for the account of a derivatives market maker and is entered:
  • in accordance with the market making obligations of the seller in connection with the security or a related security, and
  • to hedge a pre-existing position in the security or a related security;
• as part of a Program Trade in accordance with Marketplace Rules;
• to satisfy an obligation to fill an order imposed on a Participant or Access Person by any provision of UMIR or a Policy; or
• that is of a class of security or type of transaction that has been designated by a Market Regulator.

                Exercise of Options, Rights and Warrants

Under the definition of “short sale” in Rule 1.1 of UMIR, a seller shall be considered to own a security under various circumstances including if the seller, directly or through an agent or trustee:

• has purchased or has entered into an unconditional contract to purchase the security, but has not yet received delivery of the security;
• owns another security that is convertible or exchangeable into that security and has tendered such other security for conversion or exchange or has issued irrevocable instructions to convert or exchange such other security;
• has an option to purchase the security and has exercised the option; or
• has a right or warrant to subscribe for the security and has exercised the right or warrant.

The Amendments clarify the circumstances when a seller will be considered to have “converted”, “exchanged” or “exercised” securities for the purposes of the definition.  Under the Amendments, the seller must have taken all steps necessary to become legally entitled to the security, including having:

• made any payment required;
• submitted to the appropriate person any required forms or notices; and
• submitted, if applicable, to the appropriate person any certificates for securities to be converted, exchanged or exercised.

If the seller has not taken all necessary steps to become legally entitled to the security, the seller will be considered to be making a short sale.

Variation and Cancellation of Trades After Execution

The Amendments introduce a requirement that a trade cannot be cancelled or varied (with respect to: the price of the trade; the volume of the trade; or the date for settlement of the trade) except if the cancellation or variation was made by:

• IIROC in accordance with UMIR; or
• with notice to IIROC immediately following the variation or cancellation of the trade in such form and manner as may be required by IIROC.

Prior to the settlement of the trade, each Participant or Access Person who is a party to a trade may not agree to a cancellation or variation of the trade (with respect to: the price of the trade; the volume of the trade; or the date for settlement of the trade) except through the procedures and facilities offered by the marketplace on which the trade was executed or the clearing agency through which the trade is or was to be cleared and settled.  The use of the procedures and facilities provided by the marketplace or the clearing agency will ensure that information regarding the cancellation or variation can be disseminated to the appropriate information vendors.

The addition of the notice requirement should not impose, in the ordinary course, a greater administrative burden upon a Participant or Access Person.  The current practice for a Participant or Access Person is to contact CDS to add, vary or cancel trades prior to settlement.  CDS reports these variations or cancellations to the marketplace for review and, in turn, the marketplace forwards the report to IIROC.  If IIROC concludes that there are no market integrity concerns and agrees with the change, the marketplace amends the official record of the trade.  However, if the trade cancellation or variation is made after the settlement of the trade by the clearing agency, notice of the trade cancellation or variation shall be provided to IIROC by each Participant and Access Person that is a party to the trade.

The purpose of the amendment is to ensure that a trade variation or cancellation is not effected outside the normal processes of the marketplaces and CDS unless IIROC is notified of the variation or cancellation and has the opportunity to review the change for possible market integrity concerns.  Notice of a trade cancellation or variation will allow IIROC or another regulation services provider to ensure that the cancellation or variation of the trade is for a bona fide reason and not as part of a manipulative or deceptive manner of trading (including the establishment of a price that would permit other trading activity to then be conducted in nominal compliance with UMIR or other securities regulatory requirements). 

Handling of Failed Trades

                Report of an Extended “Failed Trade”

Securities regulators generally have a concern regarding the relationship between failed trades and preserving market integrity.  In order to ensure that the audit trail for any trade is accurate and that IIROC has sufficient information to evaluate whether trading activity has been conducted in compliance with UMIR and other regulatory requirements, the Amendments introduce a requirement that each Participant or Access Person is required to report to IIROC if a trade that has failed to settle on the settlement date remains unresolved 10 trading days following the settlement date.  These reports will allow IIROC to determine if the trade has failed to settle for an “improper” reason (for example, if a sale had been executed as an undeclared short sale).

Once an initial report of a “failed trade” had been filed with IIROC, the Participant or Access Person will be required to file a second report once the account has cured the default.  In this way, IIROC will be in a position to monitor trends in “failed trades” including the steps which a Participant or Access Person may be taking to rectify the default.  Information from the reports will be used by IIROC in making a determination whether a particular security should be designated as a “Short Sale Ineligible Security”.  (See “Definition of “Short Sale Ineligible Security” on pages 10 to 12.)

IIROC expects that both the initial report of a failed trade and the report of the closing out of the position will be filed electronically with IIROC in a standard form that permits IIROC to assemble the information in a database for analysis purposes.  The Amendments provide that such reports are to be filed at such time as may be required by IIROC.  At this time, IIROC expects that the initial report will be provided to IIROC on the eleventh trading day following the “failure” and that the “close-out” report will be provided to IIROC by the end of trading day following the cure of the default.  (See “Implementation Plan” on pages 17 and 18.) 

The initial failed trade will indicate the steps that have been taken to resolve the “failure” in the preceding 10 business days and which are proposed to be taken to resolve the failure.  A “close-out” report is also required to be filed which will indicate the steps which were ultimately taken to resolve the failure.  During the period between the initial report and the close-out report, IIROC would be in a position to inquire of a Participant or Access Person as to whether additional steps had been taken since the filing of the initial report.  In making such requests, IIROC would rely on its general investigative power under Rule 10.2 of UMIR in the same manner as IIROC does in a review or investigation of other trading activity.

Definition of a “Failed Trade”

The Amendments define a “failed trade” as a trade resulting from the execution of an order entered by a Participant or Access Person on a marketplace on behalf of an account and,

• in the case of a sale other than a short sale, the account failed to make available securities in such number and form;
• in the case of a short sale, the account failed to make:
  • available securities in such number and form, or
  • arrangements with the Participant or Access Person to borrow securities in such number and form; and
• in the case of a purchase, the account failed to make available monies in such amount,

as to permit the settlement of the trade at the time on the date contemplated on the execution of the trade.  The definition also confirms that a trade shall be considered a “failed trade” irrespective of whether the trade has been settled in accordance with the rules or requirements of the clearing agency.  The definition measures the existence of a “failed trade” at the account level and the default of the account holder in meeting settlement obligations.  For example, if a Participant “fails” to settle both the purchase and sale of a given amount of a particular security, the position of the Participant at the clearing agency may be “accurate” as a result of continuous net settlement but there remain two accounts which have defaulted on their settlement obligations.  If this default persisted for a period of ten trading days beyond the normal settlement date, each of the accounts would be considered to have a “failed trade”.

Each Participant is already “monitoring” each trade failure.  Presently, the “failure” is a credit issue as the account which made a sale has failed to deliver the securities or has delivered securities which are not in a “good delivery” form (e.g. the securities are subject to a legend which has not been removed) or failed to deliver cash in the case of a purchase.   The Participant is obligated to settle any trade which it has executed and may be subject to “buy-in” procedures.  If the Participant has settled the trade, the Participant must recover either the securities or the money from the account which made the trade.  IIROC acknowledges that the current policies and procedures of most Participants do not necessarily provide for this information to come to the attention of the compliance department.  The change which is introduced by the Amendments will only require this information to be made available to compliance for the purposes of making a report to IIROC in the event that the failure has persisted for a period of more than 10 days.

                Anti-Avoidance Provisions

The trigger for the reporting obligation with respect to a failed trade is for the account to have been in default for a period of 10 trading days after the original settlement date of the trade.  The Amendments make a consequential amendment to Policy 2.1 to confirm that entering into a transaction or series of transactions in an attempt to “re-age” the default such that a report of the original failed trade would not have to be filed would be considered a violation of the requirement to conduct trading openly and fairly.

Summary of the Impact of the Amendments

The following is a summary of the most significant impacts of the adoption of the Amendments:

• limits the ability to vary (with respect to price, volume or settlement date) or cancel a trade after execution unless notice has been provided to a Market Regulator;
• requires a report of a “failed trade” be made if the reason for the failure is not resolved within ten trading days following the original settlement date of the trade; and
• provides that the Market Regulator may designate particular securities or class of securities as being ineligible for short selling.

Certain of the Amendments, while approved by the applicable securities regulatory authorities, will become effective on a future date.  See “Implementation Plan” on pages 17 and 18.

The provisions of the Short Sale and Failed Trade Proposal to:

• remove the restrictions on the price at which a short sale may be executed; and
• eliminate the requirement to file “Short Position Reports”

have been deferred and are not part of the Amendments. 

Summary of Changes from the Short Sale and Failed Trade Proposal

The Amendments specifically vary aspects of the Short Sale and Failed Trade Proposals, including:

1. the deferral of the proposal to repeal the price restrictions on short sales;
2. setting out the factors to be taken into account by the Market Regulator in determining whether to designate a particular security as being a “Short Sale Ineligible Security”;
3. introducing an exemption from the requirement for the marking of short sales if the order has been automatically generated by the trading system of an Exchange or QTRS in accordance with the Marketplace Rules in respect of the applicable Market Maker Obligations;
4. introducing an exemption to permit a short sale of a “Short Sale Ineligible Security” if the sale is undertaken in furtherance of Market Maker Obligations or by a derivatives market maker;
5. deleting the proposed power of a Market Integrity Official to cancel certain failed trades if there was no reasonable prospect that the “failure” would be rectified;
6. making editorial changes to the definition of “short sale” to further clarify when a seller will be considered to hold a security;
7. making an editorial change to refer to “UMIR” rather than “the Rules” to reflect drafting changes made to UMIR consequential on the merger of RS and IDA; and
8. the deferral of the proposal to repeal the requirement for Participants and Access Persons to prepare and file a “short position report”.

Implementation Plan

Reports of Extended “Failed Trades”

With the approval of Amendments related to a Participant or Access Person providing notice to IIROC of an extended “failed trade”, IIROC will implement a secure electronic method for a Participant or Access Person to provide such notice or report to IIROC.  In order to provide Participants and Access Persons with an opportunity to make changes to their policies and procedures to accommodate the introduction of these notice and reporting obligations, implementation of the various provisions related to the provision of notice to IIROC of such extended failed trades is deferred until March 1, 2009. 

On or before February 1, 2009, IIROC will issue an IIROC Notice setting out the content of the required reports and the procedures for filing such report electronically with IIROC.  As presently contemplated, the report would include the identification of:

• the trade, including the security, volume and price;
• the marketplace including the time of execution and any identification number assigned by the marketplace to the trade;
• the dealers that were parties to the trade;
• the holder of the account that “failed” including the account name and number;
• the trader or investment adviser entering the order on behalf of the account;
• the type of order entered and any terms, conditions or consents attached to the handling of the order;
• the markers attached to the order, including whether the order was a short sale, jitney order, insider order or significant shareholder order;
• reason for the failure;
• the steps taken in the preceding 10 business days to resolve the failure; and
• the additional steps proposed to be taken to resolve the failure.

Reports of Trade Variations and Cancellation

With the approval of Amendments related to a Participant or Access Person providing notice to IIROC of a variation or cancellation of a trade subsequent to its execution, IIROC will implement a secure electronic method for a Participant or Access Person to provide such notice or report to IIROC.  (Prior to the settlement of the trade, any notice of variation or cancellation would be provided to IIROC by the marketplace or clearing agency).  In order to provide Participants and Access Persons with an opportunity to make changes to their policies and procedures to accommodate the introduction of these notice and reporting obligations, implementation of the various provisions related to the provision of notice to IIROC of such trade variations and cancellation is deferred until March 1, 2009.  On or before February 1, 2009, IIROC will issue an IIROC Notice setting out the content of the required reports and the procedures for filing such report electronically with IIROC. 

Appendices

• Appendix “A” sets out the text of the Amendments to the Rules and Policies respecting short sales and failed trades; and 
• Appendix “B” sets out a summary of the comment letters received in response to the Request for Comments on the Short Sale and Failed Trade Proposal set out in Market Integrity Notice 2007-017 - Request for Comments – Provisions Respecting Short Sales and Failed Trades (September 7, 2007).  Appendix “B” also sets out the response of IIROC to the comments received and provides additional commentary on the revisions the Amendments made to the Short Sale and Failed Trade Proposal.      

Appendix “A”

Provisions Respecting Short Sales and Failed Trades

The Universal Market Integrity Rules are hereby amended as follows:

1. Rule 1.1 is amended by:
   1. adding the following definition of “failed trade”:

“failed trade” means a trade resulting from the execution of an order entered by a Participant or Access Person on a marketplace on behalf of an account and

1. in the case of a sale, other than a short sale, the account failed to make available securities in such number and form;
2. in the case of a short sale, the account failed to make:
   1. available securities in such number and form, or
   2. arrangements with the Participant or Access Person to borrow securities in such number and form; and
3. in the case of a purchase, the account failed to make available monies in such amount,

as to permit the settlement of the trade at the time on the date contemplated on the execution of the trade provided a trade shall be considered a “failed trade” irrespective of whether the trade has been settled in accordance with the rules or requirements of the clearing agency.

1. varying the definition of “short sale” by:
   1. inserting at the end of the opening the phrase “, directly or through an agent or trustee”,
   2. inserting at the beginning of clause (b) “owns another security that is convertible or exchangeable into that security and”,
   3. deleting clause (e) and substituting the following:
      1. has entered into a contract to purchase a security that trades on a when issued basis and such contract is binding on both parties and subject only to the condition of issuance or distribution of the security,        
2. adding the following definition of “Short Sale Ineligible Security”:

                                  “Short Sale Ineligible Security” means a security or a class of securities that has been designated by a Market Regulator to be a security in respect of which an order that on execution would be a short sale may not be entered on a marketplace for a particular trading day or trading days.
 

1. Part 3 of UMIR is amended by adding the following as Rule 3.2:

                                3.2          Prohibition on Entry of Orders

1. A Participant or Access Person shall not enter an order to sell a security on a marketplace that on execution would be a short sale:
   1. unless the order is marked as a short sale in accordance with subclause 6.2(1)(b)(viii) or subclause 6.2(1)(b)(ix); or
   2. if the security is a Short Sale Ineligible Security at the time of the entry of the order.
2. Clause (a) of subsection (1) does not apply to an order automatically generated by the trading system of an Exchange or QTRS in accordance with the Marketplace Rules in respect of the applicable Market Maker Obligations.
3. Clause (b) of subsection (1) does not apply to an order entered on a marketplace:
   1. in furtherance of the applicable Market Maker Obligations in accordance with the Marketplace Rules of that marketplace;
   2. for the account of a derivatives market maker and is entered:
      1. in accordance with the market making obligations of the seller in connection with the security or a related security, and
      2. to hedge a pre-existing position in the security or a related security;
   3. as part of a Program Trade in accordance with Marketplace Rules;
   4. to satisfy an obligation to fill an order imposed on a Participant or Access Person by any provision of UMIR or a Policy; or
   5. that is of a class of security or type of transaction that has been designated by a Market Regulator.

Adding the following as Rule 7.10

                                7.10        Extended Failed Trades

1. If within ten trading days following the date for settlement contemplated on the execution of a failed trade, the account:
   1. in the case of a sale, other than a short sale, that failed to make available securities in such number and form;
   2. in the case of a short sale, that failed to make:
      1. available securities in such number and form, or
      2. arrangements with the Participant or Access Person to borrow securities in such number and form; and
   3. in the case of a purchase, that failed to make available monies in such amount,

as to permit the settlement of the trade at the time on the date contemplated on the execution of the trade has not made available such securities or monies or has not made arrangements for the borrowing of the securities, as the case may be, the Participant or Access Person that entered the order on a marketplace shall give notice to the Market Regulator at such time and in such form and manner and containing such information as may be required by the Market Regulator.

1. If a Participant or Access Person is required to provide notice of a failed trade to the Market Regulator in accordance with subsection (1), the Participant or Access Person shall, upon the account making available the applicable securities or monies or making arrangement for the borrowing of the applicable securities, give notice to the Market Regulator at such time and in such form and manner and containing such information as may be required by the Market Regulator.

Adding the following as Rule 7.11

                                7.11        Variation and Cancellation of Trades

                No trade executed on a marketplace shall, subsequent to the execution of the trade, be:

1. cancelled; or
2. varied with respect to:
   1. the price of the trade,
   2. the volume of the trade, or
   3. the date for settlement of the trade,

except:

1. by the Market Regulator in accordance with UMIR; or
2. with notice to the Market Regulator immediately following the variation or cancellation of the trade in such form and manner as may be required by the Market Regulator and such notice shall be given, if the variation or cancellation is made:
   1. prior to the settlement of the trade, by:
      1. the marketplace on which the trade was executed, or
      2. the clearing agency through which the trade is or was to be cleared and settled, and
   2. after the settlement of the trade, by each Participant and Access Person that is a party to the trade.

The Policies to the Universal Market Integrity Rules are hereby amended as follows:

1. Policy 1.1 is amended by adding the following Parts:

Part 3 – Definition of “Short Sale”

Under the definition of “short sale”, a seller shall be considered to own a security under various circumstances including if the seller, directly or through an agent or trustee:

• owns another security that is convertible or exchangeable into that security and has tendered such other security for conversion or exchange or has issued irrevocable instructions to convert or exchange such other security;
• has an option to purchase the security and has exercised the option; or
• has a right or warrant to subscribe for the security and has exercised the right or warrant.

In each of these circumstances, the seller must have taken all steps necessary to become legally entitled to the security, including having:

• made any payment required;
• submitted to the appropriate person any required forms or notices; and
• submitted, if applicable, to the appropriate person any certificates for securities to be converted, exchanged or exercised.

Part 4 – Definition of “Short Sale Ineligible Security”

Under the definition of a “short sale ineligible security”, the Market Regulator may designate a security or class of securities in respect of which an order that on execution would be a short sale may not be entered on a marketplace for a particular trading day or trading days.  In determining whether to make such a designation, the Market Regulator shall consider whether:

• based on reports of failed trades submitted to the Market Regulator in accordance with Rule 7.10 or other information known to the Market Regulator, there is in a particular security or class of securities an unusual number or pattern of failed trades by more than one Participant or Access Person;
• the number or pattern of failed trades is related to short selling; and
• the designation would be in the interest of maintaining a fair and orderly market.

1. Part 1 of Policy 2.1 is amended by deleting the second paragraph and substituting the following:

Participants and Access Persons who intentionally organize their business and affairs with the intent or for the purpose of avoiding the application of a Requirement may be considered to have engaged in behaviour that is a failure to conduct business openly and fairly or in accordance with just and equitable principles of trade.  For example, the Market Regulator considers that a person who is under an obligation to enter orders on a marketplace who “uses” another person to make a trade off of a marketplace (in circumstances where an “off-market exemption” is not available) to be violating the requirement to conduct business openly and fairly or in accordance with just and equitable principles of trade.  Similarly, the Market Regulator considers that a person who enters into a transaction for the purpose of rectifying a failure in connection with a failed trade prior to the time that a report must be filed in accordance with Rule 7.10 and such person knows or ought reasonably to know that such transaction will result in a failed trade to be engaging in “re-aging” for the purpose of avoiding reporting obligations contrary to the requirement to conduct business openly and fairly or in accordance with just and equitable principles of trade.

Appendix "B"

Comments Received in Response to Market Integrity Notice 2007-017 – Request for Comments - Provisions Respecting Short Sales and Failed Trades

• 3For a more detailed discussion of the RS Failed Trade Study and its results, see Market Policy Notice 2007-003 – General – Results of the Statistical Study of Failed Trades on Canadian Marketplaces (April 13, 2007).
• 4Rates of trade failure for Study Participants ranged from 0.22% of total trades by Study Participants on the TSX (a total of 838 fails out of 379,211 trades), to 0.90% of trades on TSXV (resulting from 239 fails out of 26,509 trades) and 2.22% of trades on CNQ (resulting from 1 failed trade out of the 45 trades executed on CNQ by Study Participants during the Study Period). The rate of trade failure on CNQ is comparable to the 2.21% rate reported by the SEC Office of Economic Analysis for US Exchange and OTC Bulletin Board securities based on data for May of 2006.
• 5Administrative delays/errors generally include: inadvertent delays related to obtaining physical certificates for securities, custodian lacking instructions and discrepancies related to security price/amount.
• 6On June 13, 2007, the SEC approved amendments to remove the price restrictions on short sales as set out in Rule 10a-1 as well as any short sale price test of any self-regulatory organization. In addition, the amendments prohibit any self-regulatory organization from having a price test. These amendments were effective July 3, 2007 with a compliance date indicated of July 6, 2007.
• 7For a more detailed description of the exemption, reference should be made to Market Integrity Notice 2007-014 - Guidance – Exemption of Certain Inter-listed Securities from Price Restrictions on Short Sales (July 6, 2007).
• 8At the time of the drafting of UMIR, CDNX had Rule C.2.12 which provided: “The Exchange may, whenever it shall determine that market conditions so warrant, prescribe a prohibition on short selling”. A comparable provision was not incorporated into UMIR on the grounds that the general provisions curtailing abusive short selling made the provision unnecessary.
• 9Policy 2.2 of UMIR regarding False or Misleading Appearance of Trading Activity or Artificial Price provides that “entering an order for the sale of a security without, at the time of entering the order, having the reasonable expectation of settling any trade that would result from the execution of the order” would constitute a manipulative and deceptive activity. The provision does not require that the dealer make a “positive affirmation” that it has the ability to settle the trade but merely have a “reasonable expectation” at the time of the entry of the order. Essentially, a Participant may enter a short sale of a security until such time as the Participant knows, or should reasonably have known, that it can no longer borrow the securities to effect settlement. Among the activities precluded by Policy 2.2 is the so-called “death spiral” situations. Historically, a “death spiral” had occurred when an issuer was undergoing certain types of arrangements or capital reorganizations (including voluntary or involuntary conversion of debt to a class of listed equity) that tied the conversion or reorganization ratios to the market price of the security to be issued. As the market price of the listed security fell the number of securities to be issued rose. In anticipation of receiving additional listed securities on the completion of the transaction, investors would sell the additional listed security short into the market resulting in further downward pressure on the market price of the listed security. Since the securities that would be issuable on the arrangement or reorganization would not be available to settle the sales in the ordinary course, the sales would be considered “short sales” for the purposes of UMIR.