National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief granted from the self-dealing provisions in section 4.2 of National Instrument 81-102 Mutual Funds to permit inter-fund trades in debt securities between mutual funds, pooled funds and closed-end funds managed by the same manager or an affiliate of the same manager – inter-fund trades will comply with conditions in s. 6.1(2) of National Instrument 81-107 Independent Review Committee for Investment Funds, including the requirement of independent review committee approval.
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds – ss. 4.2(1), 4.3, 19.1
National Instrument 81-107 – Independent Review Committee for Investment Funds – s. 6.1(2)
March 16, 2010
In the Matter of the Securities Legislation of Ontario (the Jurisdiction)
and
In the Matter of the Process for Exemptive Relief Applications in Multiple Jurisdictions
and
In the Matter of CI Investments Inc. and CI Private Counsel LP (the Filers) and the NI 81-102 Funds (as defined below)
Decision
Background
The principal regulator in the Jurisdiction has received an application (the Application) from the Filers on behalf of the existing mutual funds and future mutual funds of which a Filer, or an affiliate of a Filer (individually, an Investment Portfolio Manager and, collectively, the Investment Portfolio Managers) is the manager, portfolio adviser and/or trustee and to which National Instrument 81-102 - Mutual Funds (NI 81-102) applies (each, an NI 81-102 Fund and, collectively, the NI 81-102 Funds) for a decision (the Exemption Sought) under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) exempting the NI 81-102 Funds from the prohibition in Section 4.2(1) of NI 81-102 to permit the NI 81-102 Funds to purchase debt securities from or sell debt securities to:
(a) an existing mutual fund or future mutual fund that is an associate of the Investment Portfolio Manager of the NI 81-102 Fund and to which NI 81-102 and National Instrument 81-107 — Independent Review Committee for Investment Funds (NI 81-107) do not apply (each, a Pooled Fund and, collectively, the Pooled Funds); and
(b) an existing investment fund or future investment fund that is an associate of the Investment Portfolio Manager of the NI 81-102 Fund and to which NI 81-107 applies but to which NI 81-102 does not apply (each, a Closed-End Fund and, collectively, the Closed-End Funds),
(collectively, Inter-Fund Trades).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions:
(a) the Ontario Securities Commission is the principal regulator for the Application; and
(b) the Filers have provided notice that Section 4.7 of Multilateral Instrument 11-102 - Passport System (MI 11-102) is intended to be relied upon in respect of the Exemption Sought in British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland and Labrador, Northwest Territories, Yukon and Nunavut (the Passport Jurisdictions and, together with the Jurisdiction, the Jurisdictions).
Interpretation
Terms defined in MI 11-102, National Instrument 14-101 – Definitions, NI 81-102 or NI 81-107 have the same meanings in this Decision, unless otherwise defined.
Representations
Each NI 81-102 Fund, Pooled Fund and Closed-End Fund (collectively, the Funds, and individually, a Fund) is, or will be, an investment fund that is a trust, a corporation or a limited partnership established under the laws of a Jurisdiction or Canada. A Filer, or an affiliate of a Filer, will be the manager of each Fund.
Each NI 81-102 Fund and Closed-End Fund is, or will be, a reporting issuer in one or more Jurisdictions.
An Investment Portfolio Manager is, or will be, the manager, portfolio adviser and/or trustee of each Fund.
A Fund may be an associate of an Investment Portfolio Manager.
The Filers and each of the Funds are not in default of securities legislation in any of the Jurisdictions.
Each NI 81-102 Fund and Closed-End Fund has, or will have, an independent review committee (an IRC) in accordance with the requirements of NI 81-107. Each Inter-Fund Trade between an NI 81-102 Fund or a Closed-End Fund and with another Fund will be referred to the relevant IRC of the NI 81-102 Fund or Closed-End Fund under Section 5.2(1) of NI 81-107.
Though the Pooled Funds are not subject to the requirements of NI 81-107, each Pooled Fund has, or will have, an IRC at the time the Pooled Fund engages in an Inter-Fund Trade. The IRC of the Pooled Funds is, or will be, comprised in accordance with Section 3.7 of NI 81-107 and is, or will be, expected to comply with the standard of care set out in Section 3.9 of NI 81-107.
The mandate of the IRC of each Pooled Fund will include approving Inter-Fund Trades to which the Pooled Fund is a party. The IRC of a Pooled Fund will not approve an Inter-Fund Trade to which the Pooled Fund is a party unless the IRC has made the determination in the same manner as set out in Section 5.2(2) of NI 81-107.
Each Inter-Fund Trade by an NI 81-102 Fund will be consistent with the investment objectives of the NI 81-102 Fund.
The Filers have determined that it would be in the best interests of the NI 81-102 Funds to receive the Exemption Sought for the following reasons:
(a) making the Funds subject to the same set of rules governing the execution of Inter-Fund Trades will result in cost and timing efficiencies in respect of the execution of transactions for the Funds; and
(b) making the Funds subject to the same set of rules governing the execution of Inter-Fund Trades will result in less complicated and more reliable compliance procedures, as well as more simplified and efficient monitoring thereof, for the Investment Portfolio Managers in connection with the execution of transactions on behalf of the Funds.
- The NI 81-102 Funds cannot rely upon the exemption from Section 4.2(1) of NI 81-102 for debt securities codified in paragraph 4.3(2) of NI 81-102 because (i) a Pooled Fund is not subject to NI 81-107, and (ii) a Closed-End Fund is not a mutual fund.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that:
(a) the IRC of each Fund that is a party to the Inter-Fund Trade has approved the Inter-Fund Trade in respect of such Fund in accordance with the terms of Section 5.2(2) of NI 81-107; and
(b) the Inter-Fund Trade complies with paragraphs (c) to (g) of subsection 6.1(2) of NI 81-107.
"Rhonda Goldberg"
Rhonda Goldberg
Manager, Investment Funds Branch
ONTARIO SECURITIES COMMISSION
SEDAR project # 1529109