Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Relief granted to mutual funds for extension of lapse date of prospectus for 56 days – Securities Act (Ontario).
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as amended, s.62(5).
August 15, 2011
IN THE MATTER OF
THE SECURITIES LEGISLATION OF ONTARIO
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
TORONTO TRUST MANAGEMENT LTD. (the Manager)
AND
IN THE MATTER OF
FRIEDBERG GLOBAL-MACRO HEDGE FUND (the Fund and together with the Manager, the Filers)
DECISION
Background
The securities regulatory authority or regulator in Ontario has received an application from the Filers for a decision under the securities legislation of the jurisdiction of the principal regulator (the Principal Regulator Legislation) for an exemption that the time limits pertaining to filing the renewal prospectus of the Fund be extended as if the lapse date of the long form prospectus dated August 5, 2010 of the Fund (the Prospectus) is September 30, 2011 (the Requested Relief).
As used in this Decision, Applicable Jurisdictions means each of the provinces and territories of Canada other than Quebec, (ii) Commissions means, collectively, the securities regulatory authorities in the Applicable Jurisdictions and (iii) Lapse Date Requirement means section 62(1.1) of the Securities Act (Ontario) and analogous provisions in the securities legislation of each of the other Applicable Jurisdictions.
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 Applicants have 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 of the Applicable Jurisdictions (other than the Province of Ontario).
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.
Representations
This Decision is based on the following facts represented by the Filers:
The Fund is a reporting issuer in each of the Applicable Jurisdictions and is not in default of securities legislation in any jurisdiction.
The Fund currently distributes its securities in the Applicable Jurisdictions pursuant to the Prospectus.
The lapse date of the Prospectus under the securities legislation of the Applicable Jurisdictions is August 5, 2011 and, accordingly, under the Lapse Date Requirement the Fund (i) was required to file a pro forma prospectus on or before July 6, 2011, (ii) is required to file a (final) prospectus on or before August 15, 2011 and (iii) is required to obtain a receipt for such (final) prospectus on or before August 25, 2011.
The Fund is undergoing a reorganization in order to achieve certain potential advantages for its current and prospective investors, under which it will primarily carry on its investment activities indirectly through the holding of a limited partnership interest in a limited partnership (the Fund LP). This reorganization not only requires that a prospectus be qualified for the Fund LP with the Principal Regulator but also requires the registration of a separate portfolio manager (the Advisory LP), fund-on-fund relief for the Fund and an exemption for the Fund LP to engage in short selling of securities.
All or substantially all filings have been made such that once the portfolio manager registration has been granted the Fund LP should be able to expeditiously proceed to file its (final) prospectus and the Fund and the Fund LP will be in a position to obtain the required fund-on-fund and short selling exemptions, and thereafter a (final) prospectus can be filed for the Fund.
A pro forma prospectus was filed on behalf of the Fund in each of the Applicable Jurisdictions on or about March 29, 2011, well in advance of the deadline for its filing. A preliminary prospectus was filed on behalf of the Fund LP with the Principal Regulator on or about March 10, 2011 and the comments of Staff of the Principal Regulator were received and responses thereto have been submitted. The comments of Staff of the Principal Regulator in respect of the pro forma prospectus were received and the Filers have no concerns that such comments will not be satisfactorily addressed.
In addition, the requisite approvals of the unitholders of the Fund for, inter alia, the proposed reorganization of the Fund were obtained at a special meeting of unitholders held on March 22, 2011 in respect of which meeting the unitholders were provided with a management information circular describing the proposed reorganization (including, without limitation, that the Advisory LP will be the general partner of the Fund LP and, in such capacity, will provide investment management to the Fund LP).
Although it is expected that the required registration and the required exemptive relief will be obtained in the near future, it is unlikely that these will occur prior to the date by which a (final) prospectus must be filed under the Lapse Date Requirement.
Decision
The Principal Regulator is satisfied that the Decision meets the test contained in the Principal Regulator Legislation that provides the Principal Regulator with the jurisdiction to make the Decision.
The decision of the Principal Regulator is that the Requested Relief is granted.
“Vera Nunes”
Vera Nunes
Manager, Investment Funds Branch
ONTARIO SECURITIES COMMISSION
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Relief granted to mutual funds for extension of lapse date of prospectus for 56 days – Securities Act (Ontario).
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as amended, s.62(5).