Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from sections 15.3(2), 15.3(4)(c), 15.6(a)(i), 15.6(d), 15.8(2)(a) and 15.8(3)(a) of National Instrument 81-102 Mutual Funds to permit a mutual fund that has not distributed securities under a simplified prospectus in a jurisdiction for 12 consecutive months to present performance data in sales communications for periods before the time when the mutual fund offered its securities under a simplified prospectus – the fund distributed its securities under prospectus exemptions prior to becoming a reporting issuer – the fund has complied with the investment restrictions and practices in NI 81-102 since inception – the fund will be managed substantially similarly after it commences distributing securities under a simplified prospectus – the fund has prepared annual and interim financial statements in accordance with National Instrument 81-106 Investment Fund Continuous Disclosure since inception – the performance data of the fund for the time period before it became a reporting issuer is significant information for investors. National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from section 4.4 of National Instrument 81-106 Investment Fund Continuous Disclosure for the purposes of the relief requested from Form 81-106F1, Items 3.1(7), 4.1(1) in respect of the requirement to comply with subsections 15.3(2) and 15.3(4)(c) of National Instrument 81-102 Mutual Funds, 4.1(2), 4.2(1), 4.3(1) and 4.3(2) of Part B of Form 81-106F1 and Items 3(1) and 4 of Part C of Form 81-106F1 to permit a mutual fund to include in its annual and interim management reports of fund performance the financial highlights and past performance of the fund that are derived from the fund’s annual and interim financial statements that pertain to time periods when the fund was not a reporting issuer – the fund distributed its securities under prospectus exemptions prior to becoming a reporting issuer – the fund has complied with the investment restrictions and practices in NI 81-102 since inception – the fund will be managed substantially similarly after it commences distributing securities under a simplified prospectus – the fund has prepared annual and interim financial statements in accordance with National Instrument 81-106 Investment Fund Continuous Disclosure since inception – the financial highlights and performance data of the fund for the time periods before it became a reporting issuer is significant information for investors. Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds, ss.15.3(2), 15.3(4)(c), 15.6(a)(i), 15.6(b), 15.6(d), 15.8(2)(a), 15.8(3)(a) and 19.1. National Instrument 81-106 Mutual Fund Continuous Disclosure, ss. 4.4 and 17.1, and Items 3.1(7), 4.1(1), 4.1(2), 4.2(1), 4.3(1) and 4.3(2) of Part B of Form 81-106F1 and Items 3(1) and 4 of Part C of Form 81-106F1.
July 29, 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. (the Filer) and Signature Select Global Fund (the Fund)
Decision
Background
The principal regulator in the Jurisdiction has received an application (the Application) from the Filer on behalf of the Fund for a decision under the securities legislation of the regulator (the Legislation) exempting the Fund from:
(a) sections 15.3(2), 15.3(4)(c), 15.6(a)(i), 15.6(d), 15.8(2)(a) and 15.8(3)(a) of NI 81-102 to permit the Fund to include its performance data since the inception of the Fund in sales communications notwithstanding that:
(i) the Fund has not distributed its securities under a simplified prospectus for 12 consecutive months; and
(ii) the performance data will relate to a period prior to the Fund offering its securities under a simplified prospectus
(collectively, the Requested Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for the Application; and
(b) the Filer has provided notice that Section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, Yukon and Nunavut.
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
The Fund is an open-ended mutual fund trust created under the laws of the Province of Ontario on October 27, 2006 (the Inception Date) and is governed by a declaration of trust dated April 2, 2007, as amended.
The Filer is the manager of the Fund. The head office of the Filer is located in Ontario.
Since the Inception Date until the date of the receipt issued for the Fund’s first simplified prospectus and annual information form dated July 14, 2010 (collectively, the Prospectus) filed pursuant to National Instrument 81-101 – Mutual Fund Prospectus Disclosure (NI 81-101), units of the Fund (Units) have been distributed to investors on a prospectus-exempt basis in accordance with National Instrument 45-106 – Prospectus and Registration Exemptions and its predecessor legislation in each province and territory of Canada.
The Filer and the Fund are, to the best of their knowledge, not in default of securities legislation in any province or territory of Canada.
Upon the issuance of the receipt for the Fund’s Prospectus on July 22, 2010, the Fund has been permitted to commence distributing its securities to the public and the Fund has also become a reporting issuer under the securities legislation of each province and territory of Canada. In addition, the Fund has become subject to the requirements of National Instrument 81-102 – Mutual Funds (NI 81-102) and National Instrument 81-106 – Investment Fund Continuous Disclosure (NI 81-106) that apply only to investment funds that are reporting issuers.
Since the Inception Date, as a “mutual fund in Ontario”, the Fund has prepared and sent annual and interim financial statements to all holders of its securities in accordance with NI 81-106.
Since the Inception Date, the Fund has complied with the investment restrictions and practices contained in NI 81-102, including not using leverage in the management of its portfolio.
The Fund will be managed substantially similarly after it becomes a reporting issuer as it was prior to becoming a reporting issuer. As a result of the Fund becoming a reporting issuer:
(a) the Fund’s investment objectives have not changed, other than to provide additional detail as required by NI 81-101;
(b) the management fee charged to the Fund in respect of its existing class of units has not changed;
(c) the day-to-day administration of the Fund has not changed, other than to comply with the additional regulatory requirements associated with being a reporting issuer (none of which would have impacted the portfolio management of the Fund) and to provide additional features that are available to investors of mutual funds managed by the Filer, as described in the Prospectus; and
(d) the management expense ratio of the Fund will increase by less than 0.10%, which the Filer considers to be an immaterial amount.
The Filer proposes to present the performance data of the Fund for the time period since the Inception Date in sales communications pertaining to the Fund.
Without the Requested Relief, sales communications pertaining to the Fund would not be permitted to include performance data until the Fund has distributed securities under a simplified prospectus in a jurisdiction for 12 consecutive months and sales communications pertaining to the Fund would only be permitted to include performance data for the period commencing after the date on which the Fund commences distributing securities under a simplified prospectus.
As a reporting issuer, the Fund is required by NI 81-106 to prepare and send annual and interim management reports of fund performance (MRFPs) to all holders of its securities on an annual and interim basis.
The most recent financial statements required to be prepared by the Fund under NI 81-106 are the annual financial statements for the year ended December 31, 2009. The Filer proposes to prepare the MRFP in respect of these financial statements and to file these financial statements and MRFP. The Filer proposes that the Prospectus incorporate by reference the Fund’s most recent annual financial statements and the related annual MRFP, until such documents are superseded by more current financial statements and MRFPs of the Fund.
The Filer has filed a separate application for exemptive relief from certain provisions of NI 81-106 (the NI 81-106 Relief) to enable the Fund to include in its MRPFs the financial highlights and performance data of the Fund that are derived from its annual and interim financial statements for the time periods prior to its becoming a reporting issuer.
The performance and other financial data of the Fund for the time period before it became a reporting issuer is significant and meaningful information for existing and prospective investors of the 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 Requested Relief is granted provided that:
(a) any sales communication that contains performance data of the Fund relating to a period prior to when the Fund was a reporting issuer discloses:
(i) that the Fund was not a reporting issuer during such period; and
(ii) that the expenses of the Fund would have been higher during such period had the Fund been subject to the additional regulatory requirements applicable to a reporting issuer;
(b) the information provided under the heading “Fund Expenses Indirectly Borne by Investors” in Part B of the Fund’s simplified prospectus based on the management expense ratio for the Units for the Fund’s financial year ended December 31, 2009 be accompanied by disclosure that:
(i) the information is based on the MER of the Fund for its last completed financial year when its Units were offered privately; and
(ii) the Fund’s MER may increase as a result of the Fund offering its Units under the simplified prospectus;
(c) the Fund’s Prospectus incorporates by reference the Fund’s annual financial statements for the financial year ended December 31, 2009 and the related annual MRFP until such documents are superseded by more current financial statements and MRFPs of the Fund; and
(d) the Fund prepares its MRFPs in accordance with the NI 81-106 Relief.
“Darren McKall”
Darren McKall
Assistant Manager
Ontario Securities Commission
SEDAR Project No. 1601498