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MFDA SETTLEMENT AGREEMENT

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HomeCurrent Hearings201798- Kenneth Gerard Power › SA201798

File No. 201798

IN THE MATTER OF A SETTLEMENT HEARING PURSUANT TO SECTION 24.4 OF BY-LAW NO. 1 OF THE MUTUAL FUND DEALERS ASSOCIATION OF CANADA

Re: Kenneth Gerard Power

SETTLEMENT AGREEMENT

I. INTRODUCTION

  1. Staff of the Mutual Fund Dealers Association of Canada (“Staff”) and the Respondent, Kenneth Gerard Power (“Respondent”), consent and agree to settlement of this matter by way of this agreement (“Settlement Agreement”).
  1. Staff conducted an investigation of the Respondent’s activities which disclosed activity for which the Respondent could be penalized on the exercise of the discretion of the Hearing Panel pursuant to s. 24.1 of By-law No. 1.

II. JOINT SETTLEMENT RECOMMENDATION

  1. Staff and the Respondent jointly recommend that the Hearing Panel accept the Settlement Agreement.
  1. The Respondent admits to the following violations of the By-laws, Rules or Policies of the MFDA:
    1. between May 2011 and August 2015, the Respondent altered 10 account forms in respect of 8 clients by altering information on the account forms without having the clients initial the alterations, contrary to MFDA Rule 2.1.1; and
    2. between April 2012 and August 2015, the Respondent obtained, possessed, and in some instances, used to process transactions, 13 pre-signed account forms in respect of 6 clients, contrary to MFDA Rule 2.1.1.
  1. Staff and the Respondent agree and consent to the following terms of settlement:
    1. the Respondent shall pay a fine in the amount of $5,000 pursuant to s. 24.1.1.(b) of MFDA By-law No. 1;
    2. the Respondent shall pay costs in the amount of $2,500 pursuant to s. 24.2 of MFDA By-law No. 1;
    3. the Respondent shall in the future comply with MFDA Rule 2.1.1; and
    4. the Respondent will attend in person, on the date set for the Settlement Hearing.
  1. Staff and the Respondent agree to the settlement on the basis of the facts set out in Part III herein and consent to the making of an Order in the form attached as Schedule “A”.

III. AGREED FACTS

Registration History

  1. Since June 2009, the Respondent has been registered in Alberta as a mutual fund salesperson (now known as a dealing representative) with Sterling Mutuals Inc.[1] (“Sterling Mutuals”), a Member of the MFDA. The Respondent has also been registered with Sterling Mutuals in British Columbia since July 2009.
  1. Between October 2007 and July 2009, the Respondent was registered in Alberta as a mutual fund salesperson with WFG Securities Inc. (“WFG”). The Respondent was also registered with WFG in British Columbia from September 2008 to July 2009.
  1. At all material times, the Respondent conducted business in the Calgary, Alberta area.

Altered Account Forms

  1. Between May 2011 and August 2015, the Respondent altered 10 account forms in respect of 8 clients by using liquid correction fluid to change information on the account forms, without having the clients initial the alterations.
  1. The altered account forms consisted of:
    1. 1 conversion form;
    2. 1 free unit switch form;
    3. 1 TD mutual fund application form;
    4. 2 plan opening document forms;
    5. 1 redemption request form;
    6. 2 switch forms; and
    7. 2 transfer authorization forms.
  1. In each instance, the Respondent submitted the altered account forms to Sterling Mutuals for processing.
  1. The Respondent states that he made the alterations after first obtaining client approval for the changes and for the purpose of client convenience.

Pre-Signed Account Forms

  1. At all material times, Sterling Mutuals’ policies and procedures prohibited its Approved Persons, including the Respondent, from obtaining, holding, or using pre-signed account forms.
  1. Between April 2012 and August 2015, the Respondent obtained, possessed, and in 9 instances, used to process transactions, 13 pre-signed account forms in respect of 6 clients.
  1. The pre-signed account forms consisted of:
    1. 2 conversion forms;
    2. 1 Know Your Client form;
    3. 1 RRSP application form;
    4. 5 plan opening document forms;
    5. 2 purchase forms; and
    6. 2 redemption request forms.
  1. The Respondent states that he obtained and used the pre-signed account forms after first obtaining the relevant information from the client and for the purpose of client convenience.

Sterling Mutuals’ Investigation

  1. In December 2015, MFDA Staff identified a pre-signed account form during a compliance audit of the Respondent and subsequently commenced an investigation.
  1. On or about January 6, 2016, Sterling Mutuals placed the Respondent on close supervision, and instituted a 5 percent supervision fee on commissions earned by the Respondent.
  1. In April 2016, Sterling Mutuals conducted a review of all client files serviced by the Respondent, and identified the remaining altered and pre-signed account forms that are the subject of this Settlement Agreement.
  1. As part of its investigation, Sterling Mutuals sent letters to all the clients serviced by the Respondent requesting the clients to notify Sterling Mutuals if they had been asked by the Respondent to sign blank or partially completed account forms. No clients reported any concerns.
  1. As of August 14, 2017, the Respondent has paid Sterling Mutuals a supervision fee of $5,348.90. The Respondent continues to be under close supervision and continues to pay a 5% close supervision fee on commissions earned.

Additional Factors

  1. There is no evidence that the Respondent received any financial benefit from engaging in the misconduct described above beyond any commissions and fees that he would ordinarily be entitled to receive had the transactions been carried out in the proper manner.
  1. There is no evidence of any client loss or that the transactions were unauthorized.
  1. The Respondent has not previously been the subject of MFDA disciplinary proceedings.
  1. By entering into this Settlement Agreement, the Respondent has saved the MFDA the time, resources, and expenses associated with conducting a full hearing of the allegations.

IV. ADDITIONAL TERMS OF SETTLEMENT

  1. This settlement is agreed upon in accordance with section 24.4 of MFDA By-law No. 1 and Rules 14 and 15 of the MFDA Rules of Procedure.
  1. The Settlement Agreement is subject to acceptance by the Hearing Panel which shall be sought at a hearing (the “Settlement Hearing”). At, or following the conclusion of, the Settlement Hearing, the Hearing Panel may either accept or reject the Settlement Agreement.
  1. The Settlement Agreement shall become effective and binding upon the Respondent and Staff as of the date of its acceptance by the Hearing Panel. Unless otherwise stated, any monetary penalties and costs imposed upon the Respondent are payable immediately, and any suspensions, revocations, prohibitions, conditions or other terms of the Settlement Agreement shall commence, upon the effective date of the Settlement Agreement.
  1. Staff and the Respondent agree that if this Settlement Agreement is accepted by the Hearing Panel:
    1. the Settlement Agreement will constitute the entirety of the evidence to be submitted respecting the Respondent in this matter;
    2. the Respondent waives any rights to a full hearing, a review hearing before the Board of Directors of the MFDA or any securities commission with jurisdiction in the matter under its enabling legislation, or a judicial review or appeal of the matter before any court of competent jurisdiction;
    3. Staff will not initiate any proceeding under the By-laws of the MFDA against the Respondent in respect of the facts and contraventions described in this Settlement Agreement. Nothing in this Settlement Agreement precludes Staff from investigating or initiating proceedings in respect of any facts and contraventions that are not set out in this Settlement Agreement.  Furthermore, nothing in this Settlement Agreement shall relieve the Respondent from fulfilling any continuing regulatory obligations;
    4. the Respondent shall be deemed to have been penalized by the Hearing Panel pursuant to s. 24.1.2 of By-law No. 1 for the purpose of giving notice to the public thereof in accordance with s. 24.5 of By-law No. 1; and
    5. neither Staff nor the Respondent will make any public statement inconsistent with this Settlement Agreement. Nothing in this section is intended to restrict the Respondent from making full answer and defence to any civil or other proceedings against the Respondent.
  1. If, for any reason, this Settlement Agreement is not accepted by the Hearing Panel, each of Staff and the Respondent will be entitled to any available proceedings, remedies and challenges, including proceeding to a disciplinary hearing pursuant to sections 20 and 24 of By-law No. 1, unaffected by the Settlement Agreement or the settlement negotiations.
  1. Staff and the Respondent agree that the terms of the Settlement Agreement, including the attached Schedule “A”, will be released to the public only if and when the Settlement Agreement is accepted by the Hearing Panel.
  1. The Settlement Agreement may be signed in one or more counterparts which together shall constitute a binding agreement. A facsimile copy of any signature shall be effective as an original signature.

[1] Between June 2009 and May 2015, the Respondent was registered as a mutual fund salesperson with Armstrong & Quaile Associates Inc., which amalgamated with Sterling Mutuals in May 2015.

DATED: Sep 28, 2017

"AW"

Witness – Signature


AW

Witness – Print Name

“Kenneth Gerard Power”

Kenneth Gerard Power


 

“Shaun Devlin ”

Staff of the MFDA
Per: Shaun Devlin
Senior Vice-President,
Member Regulation – Enforcement


Schedule “A”

Order
File No. 201798

IN THE MATTER OF A SETTLEMENT HEARING
PURSUANT TO SECTION 24.4 OF BY-LAW NO. 1 OF
THE MUTUAL FUND DEALERS ASSOCIATION OF CANADA

Re: Kenneth Gerard Power

ORDER

WHEREAS on [date], the Mutual Fund Dealers Association of Canada (“MFDA”) issued a Notice of Settlement Hearing pursuant to section 24.4 of By-law No. 1 in respect of Kenneth Gerard Power (“Respondent”);

AND WHEREAS the Respondent entered into a settlement agreement with Staff of the MFDA, dated [date] (“Settlement Agreement”), in which the Respondent agreed to a proposed settlement of matters for which the Respondent could be disciplined pursuant to ss. 20 and 24.1 of By-law No. 1;

AND WHEREAS the Hearing Panel is of the opinion that:

  1. between May 2011 and August 2015, the Respondent altered 10 account forms in respect of 8 clients by altering information on the account forms without having the clients initial the alterations, contrary to MFDA Rule 2.1.1; and
  2. between April 2012 and August 2015, obtained, possessed, and in some instances, used to process transactions, 13 pre-signed account forms in respect of 6 clients, contrary to MFDA Rule 2.1.1.

IT IS HEREBY ORDERED THAT the Settlement Agreement is accepted, as a consequence of which:

  1. The Respondent shall pay a fine in the amount of $5,000 pursuant to s. 24.1.1.(b) of MFDA By-law No. 1;
  1. The Respondent shall pay costs in the amount of $2,500 pursuant to s. 24.2 of MFDA By-law No. 1;
  1. The Respondent shall in the future comply with MFDA Rule 2.1.1; and
  1. If at any time a non-party to this proceeding, with the exception of the bodies set out in section 23 of MFDA By-law No. 1, requests production of or access to exhibits in this proceeding that contain personal information as defined by the MFDA Privacy Policy, then the MFDA Corporate Secretary shall not provide copies of or access to the requested exhibits to the non-party without first redacting from them any and all personal information, pursuant to Rules 1.8(2) and (5) of the MFDA Rules of Procedure.

DATED this [day] day of [month], 20[  ].

Per:      __________________________
[Name of Public Representative], Chair

Per:      _________________________
[Name of Industry Representative]

Per:      _________________________
[Name of Industry Representative]