Legg Mason Canada Inc. (Re), 2011 CanLII 37331

Headnote National Policy 11-203 – Process for Exemptive Relief Applications in Multiple Jurisdictions – relief granted from the mutual fund conflict of interest investment restrictions in the Securities Act (Ontario) and from the self-dealing prohibition in National Instrument 31-103 – Registration Requirements and Exemptions to permit pooled funds to invest in underlying pooled funds under common management – relief granted subject to certain conditions – revocation of prior relief to expand bottom funds

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as amended, sections 111(2)(b), 111(2)(c), 111(3), 113 and 144(1). National Instrument 31-103 – Registration Requirements and Exemptions, sections 13.5(2)(a), 15.1.

June 3, 2011

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

LEGG MASON CANADA INC.

(THE MANAGER)

AND

LEGG MASON WESTERN ASSET CANADIAN CORE PLUS BOND FUND AND LEGG MASON WESTERN ASSET CANADIAN CORE PLUS LONG BOND FUND

(COLLECTIVELY, THE POOLED FUNDS AND, INDIVIDUALLY, A POOLED FUND) (COLLECTIVELY WITH THE MANAGER, THE FILERS)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filers for a decision:

(i) under the securities legislation of the Jurisdiction for an exemption from the restriction prohibiting a mutual fund in Ontario from knowingly making or holding an investment in any person or company in which the mutual fund, alone or together with one or more related mutual funds, is a substantial security holder, or in any issuer in which any officer or director of the mutual fund, its management company or distribution company or an associate of any of them, or any person or company who is a substantial security holder of the mutual fund, its management company or its distribution company, has a significant interest (the Investment Restriction);

(ii) under the securities legislation of the Jurisdiction for an exemption from the restriction prohibiting a registered adviser from knowingly causing an investment portfolio managed by it, including an investment fund for which it acts as adviser, to invest in the securities of any issuer in which a responsible person or an associate of a responsible person is a partner, officer or director, unless the fact is disclosed to the client and the written consent of the client to the investment is obtained before the purchase (the Consent Requirement); and

(iii) revocation of the decision granted by the principal regulator on October 1, 2010 (the Previous Decision), which granted exemptive relief from the conflict of interest investment restrictions in the OSA and NI 31-103 to allow the Pooled Funds to make investments in the Existing Underlying Funds (the Revocation Relief).

The Investment Restriction, Consent Requirement, and the Revocation Relief are collectively, the Requested Relief.

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):

(a) the Ontario Securities Commission (the OSC) is the principal regulator for this application;

(b) the Filers have provided notice that section 4.7 (1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relief upon in Alberta with respect to relief from the Investment Restriction; and

(c) the Filers have provided notice that section 4.7(1) of MI 11-102 is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Price Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut with respect to relief from the Consent Requirement.

Interpretation

Defined terms contained in National Instrument 14-101 - Definitions and MI 11-102 have the same meaning in this decision unless they are defined in this decision.

The following additional terms shall have the following meanings:

Existing Underlying Funds means, collectively, the sub-funds of Legg Mason Global Funds PLC, Western Asset Mortgage Backed Securities Portfolio, Ltd., Western Asset Mortgage Backed Securities Portfolio, L.L.C. and Western Asset Opportunistic Structured Securities Portfolio, L.L.C.;

New Underlying Funds means, collectively, Western Asset Floating Rate High Income Fund, Ltd., Western Asset Floating Rate High Income Fund, L.L.C., Western Asset Non-U.S. Floating Rate High Income Fund, Ltd. and Western Asset Non-U.S. Floating Rate High Income Fund, L.L.C.;

OSA means the Securities Act (Ontario);

Passport Jurisdictions means each of the provinces and territories of Canada;

SEC means the U.S. Securities and Exchange Commission;

UCITS means Undertakings for Collective Investment in Transferable Securities and refers to the investment funds authorized by the European Union as investment funds suitable to be distributed in more than one country of Europe;

Underlying Funds means, collectively, the Existing Underlying Funds and the New Underlying Funds.

Representations

This decision is based on the following facts represented by the Filers:

The Manager

1. The Manager is a company incorporated under the laws of Canada. The head office of the Manager is located in Toronto, Ontario.

2. The Manager is registered as a portfolio manager in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland and Labrador, as a commodity futures manager under the Commodity Futures Act (Ontario), as an exempt market dealer in British Columbia, Alberta, Manitoba, Saskatchewan, Ontario, Quebec, Nova Scotia, New Brunswick and Prince Edward Island, and Newfoundland and Labrador and as an Investment Fund Manager in Ontario.

3. The Manager is not in default of securities legislation in any of the provinces and territories of Canada.

4. The Manager typically enters into fully discretionary investment management agreements with clients and pursuant to such agreements, it is allowed to carry out its mandate by investing the clients in pooled funds. In addition, investors may subscribe for the pooled funds from time to time. In all cases, the pooled funds managed by the Filer are distributed only on a private placement basis pursuant to available prospectus exemptions in each of the provinces and territories of Canada.

5. The Filers are seeking the Requested Relief to revoke the Previous Decision and to expand the list of underlying funds from the Existing Underlying Funds to include the New Underlying Funds.

6. The Filers submit that revoking the Previous Decision and expanding the list of underlying funds from the Existing Underlying Funds to include the New Underlying Funds will enable the Pooled Funds to benefit from greater portfolio diversification, to better capitalize on global economic trends and to better respond to market conditions.

7. The terms and conditions of this decision are the same as those of the Previous Decision.

8. As of the date of this decision, the Filers will no longer rely on the Previous Decision.

The Pooled Funds

9. The Manager has established the Pooled Funds, and is the trustee, manager and portfolio manager of the Pooled Funds. Like other pooled funds managed by the Manager, the Manager has retained an affiliate of the Manager to be the sub-advisor of each of the Pooled Funds, namely Western Asset Management Company (Western).

10. Each of the Pooled Funds is an open-end mutual fund trust established under the laws of Ontario by declaration of trust.

11. The Pooled Funds are mutual funds in Ontario but are not reporting issuers.

12. The Pooled Funds are not in default of securities legislation in any of the provinces and territories of Canada.

13. Like all other pooled funds managed by the Manager, units of the Pooled Funds are available to investment management clients of the Manager and may also be invested in by other investors, which are typically institutional investors who do not require an investment management relationship.

Western Asset Management Company

14. Western, a California corporation and an affiliate of the Manager is the sub-advisor of the Pooled Funds. Western is registered in the United States with the SEC as an investment adviser pursuant to the U.S. Investment Advisers Act. It is also registered as a commodity trading advisor and a commodity pool operator under the U.S. Commodity Exchange Act.

15. Western relies on the exemption for international advisers available in Section 8.26 of NI 31-103. Western is also registered as a commodity trading manager under the Commodity Futures Act (Ontario).

16. Western is not in default of securities legislation in any of the provinces and territories of Canada.

17. Western currently serves as investment adviser to institutional accounts, such as corporate pension plans, mutual funds and endowment funds, as well as to individual investors. Those clients include pooled funds managed by the Manager (including the Pooled Funds), and funds managed by an affiliate of the Manager, including the Underlying Funds.

Underlying Funds

The Sub-Funds of the Irish Company

18. Legg Mason Global Funds PLC (the Irish Company) is an umbrella fund with segregated liability between funds (the Sub-Funds), established as an open-ended, variable capital investment company incorporated with limited liability under the laws of Ireland. The Articles of Association provide for separate funds, each representing interests in a defined portfolio of assets and liabilities, which may be established from time to time.

19. The Sub-Funds may only be established with the prior approval of the Irish Financial Services Regulatory Authority or Central Bank of Ireland (each, the Irish Financial Regulator). The Irish Company has been authorised by the Irish Financial Regulator as a UCITS.

20. The Irish Company and the Sub-Funds are subject to the UCITs Regulations, and any notices issued by the Irish Financial Regulator (collectively, the Irish Regulations). The Irish Regulations include, amongst other requirements, investment and borrowing restrictions that are similar in many respects to those contained in National Instrument 81-102 Mutual Funds.

21. The Sub-Funds have filed, with the Irish Financial Regulator, a prospectus which contains disclosure regarding the Sub-Funds.

22. Affiliates of the Manager, including Legg Mason Capital Management, LLC and Legg Mason Investments (Europe) Ltd. are the portfolio advisors to the Sub-Funds.

23. At least one of the directors of the Irish Company is an officer of an affiliate of the Filer and is a responsible person in respect of a Pooled Fund.

Cayman Funds

24. Western Asset Mortgage Backed Securities Portfolio, Ltd., Western Asset Floating Rate High Income Fund, Ltd. and Western Asset Non-U.S. Floating Rate High Income Fund, Ltd. (individually a Cayman Company and collectively, the Cayman Companies) are each an exempted company formed under the laws of the Cayman Islands providing limited liability in accordance with the laws of the Cayman Islands for all holders of shares of the Cayman Company.

25. Each Cayman Company is a “feeder” fund in a “master/feeder” structure that invests all or substantially all of its assets (the other asset being a cash float only in relation to subscriptions and redemptions) in another fund, which has an investment objective that is consistent with that of the Cayman Company.

26. The underlying "master" fund in which each of Western Asset Mortgage Backed Securities Portfolio, Ltd., Western Asset Floating Rate High Income Fund, Ltd. and Western Asset Non-U.S. Floating Rate High Income Fund, Ltd., respectively, invests are Western Asset Mortgage Backed Securities Portfolio, L.L.C., Western Asset Floating Rate High Income Fund, L.L.C. and Western Asset Non-U.S. Floating Rate High Income Fund, L.L.C., respectively (Western Asset Mortgage Backed Securities Portfolio, L.L.C., Western Asset Floating Rate High Income Fund, L.L.C. and Western Asset Non-U.S. Floating Rate High Income Fund, L.L.C. are, individually, a U.S. Master Fund and collectively, the U.S. Master Funds).

27. At least one of the directors of each Cayman Company is employed by an affiliate of the Manager and is a responsible person in respect of a Pooled Fund.

28. Western is the portfolio manager of each Cayman Company and of each U.S. Master Fund. A Cayman Company and the applicable U.S. Master Fund share the same accounting principles (U.S. GAAP), use the same administrator, the same U.S. external counsel and the same group of auditors (PWC).

29. Each Cayman Company is a “mutual fund” in terms of the Mutual Funds Law (as amended) of the Cayman Islands (the Mutual Funds Law) and is regulated in terms of the Mutual Funds Law. However, a Cayman Company is not required to be licensed or to employ a licensed mutual fund administrator since the minimum aggregate investment purchasable by a prospective investor in the Cayman Company exceeds the relevant threshold.

30. As a regulated mutual fund, a Cayman Company is subject to the supervision of the Cayman Islands Monetary Authority (the Monetary Authority). The Monetary Authority does not impose any investment or borrowing restrictions on the Cayman Company. A Cayman Company is only available to accredited investors as defined in the relevant laws, including Canada and the U.S.

U.S. Funds

31. Western Asset Opportunistic Structured Securities Portfolio, L.L.C., and the U.S. Master Funds (the U.S. Funds) are organized as limited liability companies under the laws of the State of Delaware.

32. The U.S. Funds are exempt from the requirements to register as an investment company under the U.S. Investment Company Act of 1940. They are offered to accredited investors on a private placement basis in accordance with the U.S. securities law requirements.

33. Western is the portfolio manager of the U.S. Funds. Since the Cayman Companies and the U.S. Funds are advised by Western, a registered U.S. adviser, there are many U.S. securities provisions which apply in respect of the management of both the Cayman Company and the U.S. Funds.

34. The Underlying Funds are not in default of securities legislation in any of the provinces and territories of Canada.

Fund-on-Fund Structure

35. In order for a Pooled Fund to achieve its investment objective on a diversified basis and obtain broad exposure to the asset classes it proposes to invest in, it is important that it be permitted to invest in one or more Underlying Funds.

36. The Manager believes it is in the best interests of the Pooled Funds for investments to be made in the Underlying Funds. Investing directly in separate securities instead of allowing direct exposure to the securities invested in by the Underlying Fund is a less desirable option owing to the increased costs and inefficiencies that are associated with such direct investing.

37. Investment by the Pooled Funds in the Underlying Funds will increase the asset base of the Underlying Funds, enabling the Underlying Funds to further diversify their portfolios to the benefit of all their investors. The larger asset base will also benefit investors in the Underlying Funds through achieving favourable pricing and transaction costs on portfolio trades, increased access to investments where there is a minimum subscription or purchase amount and economies of scale through greater administrative efficiency.

38. Each Pooled Fund will manage its investments in an Underlying Fund with discretion to buy and sell units of the Underlying Fund, selected in accordance with the Pooled Fund's investment objective, as well as to alter its holdings in any Underlying Fund in which it invests.

39. In the absence of the Relief from the Consent Requirement, the portfolio manager of the Pooled Funds would be prohibited from knowingly causing the Pooled Funds to invest in Underlying Funds in which a responsible person or an associate of a responsible person is an officer or director unless the specific fact is disclosed to the securityholders of the Pooled Funds and the written consent of the securityholders of the Pooled Funds to the investment is obtained before the purchase.

40. Relief from the Investment Restriction is necessary because the amounts invested from time to time in an Underlying Fund by a Pooled Fund may exceed 20% of the outstanding voting securities of any single Underlying Fund. Accordingly, each Pooled Fund could, either alone or together with the other Pooled Fund, become a substantial securityholder of an Underlying Fund.

41. The Manager, an officer or director of the Manager, or a substantial securityholder of the Manager may have a significant interest in an Underlying Fund that the Manager or an affiliate of the Manager establishes and manages in the future at the time of the establishment of the Underlying Fund as a result of investing seed capital in such Underlying Fund. Accordingly, each Pooled Fund will be prohibited by the Act from investing in such Underlying Fund, unless the relief from the Investment Restriction is granted.

42. The investments by the Pooled Funds in the shares of the Underlying Funds will represent the business judgment of ‘responsible persons’ uninfluenced by considerations other than the best interests of the Pooled Funds.

43. Investors in each Pooled Fund are entitled to receive from the Manager, on request and free of charge, a copy of the offering memorandum or other disclosure documents (if any) or, once available, the annual or semi-annual financial statements, relating to all Underlying Funds in which the Pooled Fund may invest its assets.

44. Investors in each Pooled Fund will also be provided with annual financial statements of the Pooled Funds in accordance with securities legislation, including an auditors report.

Decision

The principal regulator is satisfied that the decision meets the test set out in the securities legislation of the Jurisdiction (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 as follows:

(a) the Investment Restriction shall not apply to the Pooled Funds in respect of each Pooled Fund's investment in securities of the Underlying Funds;

(b) the Consent Requirement shall not apply to the Manager or an affiliate of the Manager of the Pooled Funds;

(c) the Revocation Relief is granted; and

provided that, in each case:

(i) securities of each Pooled Fund are distributed only on a private placement basis pursuant to available prospectus exemptions;

(ii) the investment by each Pooled Fund in an Underlying Fund is compatible with the fundamental investment objectives of the Pooled Fund;

(iii) each Pooled Fund does not vote any of the securities it holds of an Underlying Fund except that the Pooled Fund may, if the Filer so chooses, arrange for all the securities it holds of an Underlying Fund to be voted by the beneficial holders of securities of the Pooled Fund;

(iv) no management fees or incentive fees are payable by a Pooled Fund that, to a reasonable person, would duplicate a fee payable by an Underlying Fund for the same service;

(v) no sales or redemption fees are payable by the Pooled Fund in relation to its purchases or redemptions of securities of an Underlying Fund; and

(vi) investors in each Pooled Fund receive written disclosure that discloses:

(1) the intent of the Pooled Fund to invest its assets directly or indirectly in securities of the Underlying Funds;

(2) that the Underlying Funds are managed by the Manager or an affiliate of the Manager;

(3) the percentage of net assets of the Pooled Fund dedicated to the investment in securities of the Underlying Funds; and

(4) the process or criteria used to select the Underlying Funds.

The Consent Requirement Relief and Revocation Relief

“Darren McKall”

______________________

Darren McKall, Manager

Investment Funds Branch

The Investment Restriction Relief and Revocation Relief

“Paulette L. Kennedy” “Mary G. Condon”

______________________ _____________________

Name: Paulette L. Kennedy Name: Mary G. Condon

Title: Commissioner Title: Commissioner