Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Relief granted for extension of lapse date of prospectus for 2 days – Lapse date extended due to Filer’s error in calculating the timelines per section 62(2) of the Securities Act (Ontario).
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as amended, s. 62(5).
January 8, 2010
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the “Principal Jurisdiction”) AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF GOODMAN & COMPANY, INVESTMENT COUNSEL LTD. (the “Manager”)
AND
Dynamic Venture Opportunities Fund Ltd. (the “Fund”)
DECISION
Background
The Principal Regulator (as defined below) in the Principal Jurisdiction has received an application from the Manager on behalf of the Fund for a decision under Subsection 62(5) of the Securities Act (Ontario) (the “Act”) and the equivalent provisions contained in the securities legislation of the other Jurisdictions (as defined below) that the lapse date of the long form prospectus of the Fund dated January 9, 2009 (the “Current Prospectus”) be extended to January 11, 2010 and that the time limits prescribed by Subsection 62(2) of the Act and of the equivalent provisions in the securities legislation of the other Jurisdictions be extended accordingly (the “Relief Sought”).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator (the “Principal Regulator”) for this application, and
(b) the Manager 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 all other provinces and territories of Canada (collectively, the “Jurisdictions”).
Interpretation
Defined terms contained in National Instrument 14-101 – Definitions and MI 11-102 have the same meanings in this decision (“Decision”) unless they are otherwise defined in this Decision.
Representations
This Decision is based on the following facts represented by the Manager:
The Manager is the manager and portfolio advisor of the Fund.
The Fund filed a final prospectus dated January 9, 2009 (the Current Prospectus) for which it obtained a receipt and under which it has been distributing its securities since the date of the Current Prospectus.
The lapse date (the “Lapse Date”) for the Current Prospectus is January 9, 2010 and accordingly to qualify for the timelines stipulated by subsection 62(2) of the Act (and the equivalent in the other Jurisdictions) a pro forma prospectus should have been filed no later than December 9, 2009.
The Fund filed a prospectus on December 11, 2009 (the “Pro Forma Prospectus”) in connection with the continuous public offering of the securities of the Fund to the public beyond the Lapse Date.
Subsection 62(5) of the Act (and the equivalent in the other Jurisdictions) provides that “the Commission may, upon an application of a reporting issuer, extend, subject to such terms and conditions as it may impose, the time provided by subsection (2) where in its opinion it would not be prejudicial to the public interest to do so”.
If the Relief Sought is not granted, the Fund will no longer distribute its securities in the Jurisdictions pursuant to the Current Prospectus following January 9, 2010.
The Manager filed the Pro Forma Prospectus on December 11, 2009 in reliance on its interpretation that the lapse date of the Current Prospectus was in fact January 11, 2010. Its interpretation was based on the definition of “lapse date” at subsection 62(1) of the Act where in it refers to a date that is 12 months “after” the date of the most recent prospectus.
The Manager represents that its was reasonable mistake in interpretation and accepts that January 9, 2010 is the correct lapse date.
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.
“Darren McKall” _____________________________________ Darren McKall
Assistant Manager, Investment Funds Branch ONTARIO SECURITIES COMMISSION
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Relief granted for extension of lapse date of prospectus for 2 days – Lapse date extended due to Filer’s error in calculating the timelines per section 62(2) of the Securities Act (Ontario).
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as amended, s. 62(5).