In the Matter of AlphaPro Management Inc., 2011 CanLII 70736

Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions - relief granted from NI 81-102 to permit mutual funds to invest in underlying ETFs that are mutual funds and to allow top funds to pay brokerage commissions for purchase or sale of ETF units – relief needed because underlying ETFs are mutual funds that do not file simplified prospectus and are not index participation units and because top funds and underlying ETFs are managed by the same manager or an affiliate – underlying ETFs are subject to NI 81-102 and are not commodity pools under NI 81-104 – units will be primarily bought or sold over the exchange on the same conditions as other securities traded on the exchange– relief subject to no short-selling of underlying ETFs by top funds, and underlying ETFs must not rely on relief from sections 2.3, 2.6(a) and (b), 2.7 and 2.8 of NI 81-102. Applicable Legislative Provisions National Instrument 81-102 Mutual Funds - paragraphs 2.5(2)(a) and (e), and section 19.1.

October 28, 2011

(the Jurisdiction)

AND

(the Filers)

AND

(as defined below)

DECISION

BACKGROUND

The principal regulator in the Jurisdiction has received an application from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for an exemption (the Exemption Sought) relieving the existing mutual funds listed at Schedule “A”, Schedule “B” and Schedule “C” (the Existing Top Funds) and such mutual funds that may be managed by the Filers or their affiliates in the future (the Future Top Funds, and together with the Existing Top Funds, the Top Funds and individually, a Top Fund) that are subject to National Instrument 81-102 - Mutual Funds (NI 81-102), from the prohibitions in:

(a) paragraph 2.5(2)(a) of NI 81-102 to permit each Top Fund to invest in exchange traded mutual funds that are not subject to National Instrument 81-101 - Mutual Fund Prospectus Disclosure (NI 81-101); and

(b) paragraph 2.5(2)(e) of NI 81-102 to permit each Top Fund to pay brokerage commissions in relation to its purchase and sale on a recognized exchange of securities of exchange traded mutual funds that are managed by the Filers, or an affiliate or associate of the Filers

(collectively, the Exemption Sought).

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

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

(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 relied upon in each of the other provinces and territories of Canada.

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 Filers:

About the Filers

AlphaPro Management Inc. (AlphaPro) is a corporation incorporated pursuant to the laws of Canada, and Horizons Investment Management Inc. (Horizons Investment) and JovFinancial Solutions Inc. are corporations incorporated pursuant to the laws of the Province of Ontario.
The Filers, or an affiliate of the Filers, acts as, or will act as, the investment fund manager of the Top Funds.
The Filers are not in default of the securities legislation of any of the provinces or territories of Canada.

About the Top Funds

The Top Funds are, or will be, open-ended mutual funds organized and governed under the laws of a jurisdiction of Canada.
The Top Funds are or will be governed by the provisions of NI 81-102.
Each Top Fund distributes securities pursuant to a simplified prospectus and annual information form prepared under NI 81-101 or a long form prospectus prepared under Form 41-101F2 – Information Required in an Investment Fund Prospectus. (Form 41-101F2).
The Top Funds are, or will be, reporting issuers in some or all of the provinces and territories of Canada.
The Existing Top Funds are not in default of any requirements of the securities legislation of any province or territory of Canada.
The Filers would like to be able to invest the assets of the Top Funds in the exchange traded funds listed at Schedule “D” (the Existing Underlying ETFs) and such future exchange-traded mutual funds that may be established by AlphaPro or its affiliates or associates in the future (the Future Underlying ETFs and together with the Existing Underlying ETFs, the Underlying ETFs or individually an Underlying ETF).
The investment by a Top Fund in securities of an Underlying ETF will be made in accordance with the fundamental investment objective of the Top Fund and will represent the business judgment of responsible persons uninfluenced by considerations other than the best interests of the Top Funds.

About the Underlying ETFs

AlphaPro or an affiliate is or will be the investment fund manager of the Underlying ETFs.
Each Underlying ETF is, or will be:

(a) an open end mutual fund, subject to NI 81-102 and National Instrument 41-101 – General Prospectus Requirements (NI 41-101);

(b) a reporting issuer each of the provinces and territories of Canada; and

(c) listed on the Toronto Stock Exchange (the TSX) or another “recognized exchange” in Canada as that term is defined in securities legislation.

The Existing Underlying ETFs are not in default of any requirements of the securities legislation of any province or territory of Canada.
Each Underlying ETF distributes, or will distribute, its securities pursuant to a long form prospectus prepared under Form 41-101F2.
Each Underlying ETF does not or will not, at the time of purchase by a Fund, hold more than 10% of the market value of its net assets in securities of other mutual funds other than securities of money market funds or index participation units.
Each Underlying ETF issues, or will issue, units which are qualified for distribution in each of the provinces and territories of Canada.
The Underlying ETFs do not or will not issue “index participation units” as defined in NI 81-102.
Each Underlying ETF does not or will not pay management or incentive fees which to a reasonable person would duplicate a fee payable by the Top Funds for the same service.
Where the investment fund manager of a Top Fund (the Top Fund Manager) determines that the management fees and incentive fees (the Fees) payable by an Underlying ETF to its investment fund manager (the Underlying ETF Manager) would duplicate a fee payable by the Top Fund for the same service, either

(a) The Underlying ETF Manager will pay a management fee rebate to the Top Fund that is equal to the Fees paid to it by that Underlying ETF and the Top Fund Manager will pay an amount equal to those Fees to the Underlying ETF Manager; or

(b) The Top Fund Manager will pay to the Top Fund an amount equal to the Fees payable to the Underlying ETF Manager in respect of the Top Fund’s investment in the Underlying ETF.

Holders of units of an Underlying ETF may:

(a) sell units of an Underlying ETF on the TSX or another recognized exchange in Canada on which units of an Underlying ETF are listed for trading;

(b) redeem units of that Underlying ETF in any number for cash at a redemption price of 95% of the closing price for the unit on the applicable exchange on the effective day of redemption; or

(c) redeem or exchange a prescribed number of units (a PNU) of the Underlying ETF for cash or securities equal to the net asset value of each PNU tendered for redemption or exchange, respectively.

Each Underlying ETF may, from time to time, retain:

(a) National Bank Financial Inc., an associate of AlphaPro, to act as its designated broker, distributor and securities lending agent;

(b) Natcan Investment Management Inc., an associate of AlphaPro, to act as portfolio sub-adviser;

(d) Leon Frazer & Associates Inc., currently an affiliate of each Filer, to act as its manager, trustee, portfolio manager, or sub-adviser.

Each Underlying ETF is not, or will not be, a commodity pool governed by National Instrument 81-104 - Commodity Pools (NI 81-104).
No Underlying ETF has, or will have, a net market exposure greater than 100% of its net asset value.
The Existing Underlying ETFs primarily achieve, and Future Underlying ETFs will primarily achieve, their investment objectives through direct holdings of securities and, in some circumstances, through investment in specified derivatives for hedging and non-hedging purposes, in accordance with their investment objectives and strategies and with NI 81-102.
All brokerage costs related to trades in securities of the Underlying ETFs will be borne by the Top Funds in the same manner as any other portfolio transaction made on an exchange.
If a Top Fund makes a trade in securities of an Underlying ETF with or through an affiliate or associate of the Filers acting as dealer, the Filers will comply with their obligations under National Instrument 81-107 Independent Review Committee for Investment Funds in respect of any proposed related party transactions. Lastly, all such related party transactions will be disclosed to securityholders of the relevant Top Fund in its management report of fund performance.

Reasons for the Exemption Sought

An investment in an Underlying ETF by a Top Fund is an efficient and cost effective alternative to administering one or more investment strategies directly or engaging a sub-adviser to implement an investment strategy for a Top Fund.
Absent the Exemption Sought, an investment by a Top Fund in an Underlying ETF would be prohibited by paragraph 2.5(2)(a) of NI 81-102 solely because the Underlying ETF is not governed by NI 81-101.
An investment by a Top Fund in an Underlying ETF would not qualify for the exemption in paragraph 2.5(3) of NI 81-102 from paragraph 2.5(2)(a) of NI 81-102 because the Underlying ETF does not issue index participation units.
The only material difference between the Underlying ETFs and any other mutual fund governed by NI 81-102 is the method of distribution. If the Exemption Sought is granted, the Top Funds will be permitted to purchase units of a mutual fund that is listed on the TSX (or other recognized exchange) in the same manner that they are permitted to invest in a mutual fund that is not listed on the applicable exchange.
It is anticipated that many of the trades conducted by the Top Funds would not be of the size necessary for the Top Fund to be eligible to purchase or redeem a PNU directly from the Underlying ETF. As a result, it is anticipated that the majority of trading in respect of units of the Underlying ETFs will be conducted in the secondary market using the facilities of a recognized exchange.
Absent the Exemption Sought, when the Top Funds trade securities of an Underlying ETF on a recognized exchange, paragraph 2.5(2)(e) would not permit the Fund to pay any brokerage fees incurred in connection with the trade.

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) a Top Fund does not short sell securities of an Underlying ETF; and

(b) the Underlying ETFs do not rely on exemptive relief from

(i) the requirements of section 2.3 of NI 81-102 regarding the purchase of physical commodities;

(ii) the requirements of sections 2.7 and 2.8 of NI 81-102 regarding the purchase, sale or use of specified derivatives, with the exception of the relief from paragraphs 2.7(1)(a) and 2.8(1) of NI 81-102 granted to certain Underlying ETFs pursuant to the In the Matter of AlphaPro Management Inc. decision dated November 18, 2010; and

(iii) paragraphs 2.6 (a) and (b) of NI 81-102 with respect to the use of leverage.

“Chantal Mainville”

Chantal Mainville

Acting Manager, Investment Funds Branch

Ontario Securities commission

SEDAR PROJECT # 1714003

SCHEDULE “A”

ALPHAPRO FUNDS

Fund Name

Manager

Trustee

Portfolio Manager

Portfolio Sub-Adviser

Horizons Dividend ETF

AlphaPro Management Inc.