Fitzgerald, Donald James - Opportunity to be Heard

Director's Decision
In the Matter of the Registration of
Donald James Fitzgerald

Opportunity to be heard by the Director
Section 26(3) of the Securities Act

October 27, 2008
David M. Gilkes
Manager, Registrant Regulation
Ontario Securities Commission
Rebecca Stefanec
For the staff of the Commission
Donald James Fitzgerald
For the Registrant

1.    Mr. Fitzgerald (the Registrant) has been registered with the Ontario Securities Commission (OSC) as a mutual fund salesperson since August 1995. He has been sponsored by PFSL Investments Canada Ltd. (PFSL) since December 2003. OnMay 1, 2008, PFSL submitted a financial disclosure change notice to the OSC that indicated that Mr. Fitzgerald had filed for bankruptcy.

2.    On August 19, 2008, OSC staff sent a letter to the Registrant and to PFSL proposing terms and conditions for monthly close supervision reporting, be imposed on the registration of Donald James Fitzgerald.

3.    The Director may restrict a registration by imposing terms and conditions under subsection 26 of the Securities Act but must provide the registrant with the opportunity to be heard by the Director. The Registrant requested an opportunity to be heard through a written submission. The submission was received onSeptember 8, 2008.


4.    The Registrant asked that his registration be allowed to continue without terms and conditions. Mr. Fitzgerald noted that PFSL would no longer continue to sponsor his registration as a mutual fund salesperson if there are terms and conditions imposed on his registration.

5.    Mr. Fitzgerald wished to continue servicing his clients and hoped an alternative solution to terms and conditions could be found. He did not suggest any alternative solution.

Suitability for Registration

6.    The fit and proper standard for registration is both an initial and an ongoing requirement for registrants. The fit and proper standard is based on three well established criteria that have been identified by the OSC:
The [Registrant Regulation] section administers a registration system which is intended to ensure that all Applicants under the Securities Act and the Commodity Futures Act meet appropriate standards of integrity, competence and financial soundness …(Ontario Securities Commission, Annual Report 1991, Page 16)
When analyzing these criteria staff consider:
  • integrity – honesty and good faith, particularly in dealings with clients, and compliance with Ontario securities law;
  • competence – prescribed proficiency and knowledge of the requirements of Ontario securities law; and
  • financial soundness – an indicator of a firm’s capacity to fulfill its obligations and can be an indicator of the risk that an individual will engage in self-interested activities at the expense of clients.
7.    In this case neither the Registrant’s integrity nor his competence are in question. However, filing for bankruptcy raises concern regarding the financial soundness of the Registrant. To mitigate the potential risk concerning self-interested activities by the Registrant, OSC staff recommended that terms and conditions for monthly close supervision reporting be imposed on the registration of Donald James Fitzgerald.


8.    It is OSC staff practice to impose terms and conditions for monthly close supervision reporting on an individual’s registration should that person file for bankruptcy, receive a garnishment, receive a requirement to pay overdue taxes, or file for a consumer proposal. The terms and conditions are removed when the financial obligations resulting from the event have been satisfied. This practice is consistent with the investor protection mandate of the OSC.

9.    I find that the bankruptcy does have a negative impact on the registrant’s financial soundness. Therefore, I impose the terms and conditions as set out in Exhibit A on the registration of Donald James Fitzgerald.

October 27, 2008

“David M. Gilkes”

Exhibit A
Terms and Conditions of Registration
Donald James Fitzgerald

Monthly Close Supervision Reports are to be completed on the registrant’s sales activities and dealings with clients.  The supervision reports are to be retained with the sponsoring firm and must be made available for review upon request.  These terms and conditions are to continue until the obligation has been satisfied and acceptable evidence has been provided to the OSC.

__________________________                 ________________________
Approved Officer for                                         Donald James Fitzgerald
PFSL Investments Canada Ltd.

____________________________               ________________________
Print Name of Approved Officer                                        Date

Monthly Close Supervision Report*

I hereby certify that supervision has been conducted for the month ending____________ of the trading activities of (name), by the undersigned. I further certify the following:
  1. All orders from the salesperson were reviewed and approved by a compliance officer or branch manager of PFSL Investments Canada Ltd.
  2. There were no client complaints received during the preceding month. If there were complaints, a description of the complaint and follow-up action initiated by the company is attached.
  3. All payments for the purchase of the investments were made payable to the dealer. There were no cash payments accepted.
  4. The transactions of the salesperson were reviewed during the preceding month to ensure compliance with the policies and procedures of the dealer, including the suitability of investments for clients. If there were any violations, a description of the violation and follow-up action is attached.

Compliance Officer/Branch Manager
PFSL Investments Canada Ltd.

____________________________               ________________________
Print Name                                                                         Date

* In the case of violations or client complaints, the regulator must be notified within five business days.