Goodman & Company, Investment Counsel Ltd., 2011 CanLII 76713

Headnote National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions – relief granted to mutual fund from prohibition against purchasing a physical commodity other than gold or a specified derivative the underlying interest of which is a physical commodity other than gold – mutual fund that invests primarily in the resource sector desires to make limited investments in gold, silver, platinum and palladium and to also invest in standardized futures with underlying interests in oil and natural gas for hedging purposes – relief granted provided purchase of standardized future is effected through the NYMEX or ICE Europe, the standardized future is traded only for cash or an offsetting standardized future contract, and the standardized future is sold at least one day prior to the date on which delivery of the underlying commodity is due under the standardized future – relief is subject to limits on investments in gold, silver, platinum, palladium, oil and natural gas – National Instrument 81-102 Mutual Funds.

Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, ss. 2.3(f), 2.3(h) and 19.1.

November 15, 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 GOODMAN & COMPANY, INVESTMENT COUNSEL LTD. (the “Filer”)

AND

IN THE MATTER OF Dynamic Strategic Resource Class (the “Fund”)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Fund of which the Filer is the manager and adviser and to which National Instrument 81-102 Mutual Funds (NI 81-102) applies for a decision under the securities legislation of the Jurisdiction of the principal regulator (Legislation) that (a) notwithstanding:

(i) clauses 2.3(f) and (h) of NI 81-102, the Fund be permitted to invest in gold, silver, platinum or palladium (or the equivalent in certificates or specified derivatives of which the underlying interest is gold, silver, platinum or palladium) or specified derivatives, namely standardized futures (as such terms are defined in section 1.1 of NI 81-102) with underlying interests in oil or gas, provided the investments, in the aggregate, not exceed or represent greater than 10% of the net assets of the Fund, taken at the market value thereof at the time of investment, and

(ii) clause 2.3(h) of NI 81-102, the Fund be permitted to invest in specified derivatives, namely standardized futures (as such terms are defined in section 1.1 of NI 81-102) with underlying interests in oil or gas, for hedging purposes, provided the investments, in the aggregate, not exceed or represent greater than 80% of the net assets of the Fund, taken at the market value thereof at the time of investment;

and (b) the Previous Decision (as defined below) be revoked (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 Manager has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System is intended to be relied upon in each of the other provinces and territories of Canada (together with Ontario, the “Jurisdictions”).

Interpretation

Terms defined in MI 11-102, National Instrument 14-101 Definitions and NI 81-102 have the same meaning if used in this decision, unless otherwise defined. References to “oil” and “gas” in this application are to sweet crude oil and natural gas, respectively. The term “Specified Metals” in this application refers to any or all of gold, silver, platinum and palladium.

Representations

The decision is based on the following facts represented by the Filer:

1. The Filer is a corporation existing under the laws of the Province of Ontario, is registered with the OSC as an adviser in the category of portfolio manager, is further registered in that category in each of British Columbia, Alberta, Manitoba, Saskatchewan, Quebec, New Brunswick, Nova Scotia and Prince Edward Island and is registered as a commodity trading manager and investment fund manager with the OSC.

2. The Fund is an open-end mutual fund established as a class of Dynamic Global Fund Corporation, a mutual fund corporation existing under the laws of the Province of Ontario.

3. Pursuant to the November 11, 2011 decision In the Matter of Goodman & Company, Investment Counsel Ltd. (the “Previous Decision”) the Manager obtained exemptive relief to permit the Fund to invest an aggregate of up to (i) 10% of the net assets of the Fund, taken at the market value thereof at the time of investment, in gold, silver, platinum and palladium (or the equivalent in certificates or specified derivatives of which the underlying interest is gold, silver, platinum or palladium) (the “10% Relief”), and (ii) 80% of the net assets of the Fund, taken at the market value thereof at the time of investment, in specified derivatives (namely standardized futures) with underlying interests in oil or gas, for hedging purposes.

4. A receipt was issued by the OSC for the simplified prospectus (the “Simplified Prospectus”) and annual information form of the Fund on November 14, 2011. As a result, the Fund is a "reporting issuer" or equivalent in each Jurisdiction.

5. The Manager now wishes to revoke and replace the Previous Decision so as to include the purchase of standardized futures with underlying interests in oil and gas for non-hedging purposes in the 10% Relief.

6. Neither the Filer nor the Fund is in default of securities legislation in any of the Jurisdictions.

7. The investment objectives of the Fund are to provide long-term capital appreciation by investing primarily in resources, which may include oil and gas and physical commodities such as gold, silver, platinum and palladium, and equity securities of businesses involved in resource-based activities.

8. The investment objectives and investment strategies of the Fund allow for portfolio investments in Specified Metals and in standardized futures with underlying interests in oil and gas, as well as, among other things, equity securities of energy related companies, including oil and gas issuers.

9. The Filer considers Specified Metals to be a viable alternative to holding cash or cash equivalents and will permit the portfolio manager of the Fund additional flexibility to increase gains for the Fund in certain market conditions, which may have otherwise caused the Fund to have significant cash positions and therefore detract from its ability to achieve its investment objectives.

10. The Filer considers investments in oil and gas standardized futures traded on the ICE Futures Europe (“ICE Europe”) and New York Mercantile Exchange (“NYMEX”) to be a means of reducing the volatility that can result from the changing prices of securities of issuers in the oil and gas sector. The Filer proposes to trade standardized futures contracts for cash or an offsetting contract to satisfy the obligations in a standardized futures contract.

11. The Filer believes that the market for Specified Metals and the oil and gas standardized futures markets of ICE Europe and NYMEX are highly liquid.

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) the Filer, on behalf of the Fund, ensures that any silver, platinum or palladium certificates purchased by the Fund, represent the underlying precious metal which is:

(i) available for delivery in Canada, free of charge, to or to the order of the holder of the certificate;

(ii) of minimum fineness 999 parts per 1,000;

(iii) held in Canada;

(iv) in the form of either bars or wafers; and

(v) if not purchased from a bank listed in Schedule I, II or III of the Bank Act (Canada), fully insured against loss and bankruptcy by an insurance company licensed under the laws of Canada or a jurisdiction.

(b) the purchases, uses and sales of standardized futures which have underlying interests in oil or gas are made in accordance with the provisions otherwise relating to the use of specified derivatives for hedging and non-hedging purposes in NI 81-102;

(c) a standardized futures contract will be traded only for cash or an offsetting standardized future contract to satisfy the obligations under the standardized future and will be sold at least one day prior to the date on which delivery of the underlying commodity is due under the standardized future;

(d) the purchase of a standardized future will be effected through ICE Europe or NYMEX;

(e) the Fund will not purchase gold, silver, platinum or palladium (or the equivalent in certificates or specified derivatives of which the underlying interest is gold, silver, platinum or palladium) or standardized futures with underlying interests in oil or gas for non-hedging purposes if, immediately following the purchase, the aggregate of such investments would exceed or represent greater than 10% of the net assets of the Fund at the time of purchase;

(f) the Fund will not purchase a standardized futures with underlying interests in oil or gas for hedging purposes if, immediately following the purchase, the aggregate of such investments would exceed or represent greater than 80% of the net assets of the Fund at the time of purchase;

(g) the Fund will keep proper books and records of all purchases and sales of standardized futures;

(h) the Simplified Prospectus of the Fund or an amendment thereto discloses:

(i) in the investment strategy section in Part B of the Simplified Prospectus of the Fund, that the Fund may invest (1) in gold, silver, platinum and palladium (or the equivalent in certificates or specified derivatives of which the underlying interest is gold, silver, platinum or palladium) or standardized futures, for non-hedging purposes, with underlying interests in oil and gas, provided the aggregate investments not exceed or represent greater than 10% of the net assets of the Fund, taken at the market value thereof at the time of investment; and (2) an aggregate of up to 80% of its net assets in standardized futures with underlying interests in oil and gas as a hedge against oil and gas investments;

(ii) the risks associated with the investments described in (i); and

(iii) this exemptive relief.

“Chantal Mainville”

Chantal Mainville

Acting Manager, Investment Funds Branch

Ontario Securities Commission

SEDAR NO. 1780467

Headnote

National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions – relief granted to mutual fund from prohibition against purchasing a physical commodity other than gold or a specified derivative the underlying interest of which is a physical commodity other than gold – mutual fund that invests primarily in the resource sector desires to make limited investments in gold, silver, platinum and palladium and to also invest in standardized futures with underlying interests in oil and natural gas for hedging and non-hedging purposes – relief granted provided purchase of standardized future is effected through the NYMEX or ICE Europe, the standardized future is traded only for cash or an offsetting standardized future contract, and the standardized future is sold at least one day prior to the date on which delivery of the underlying commodity is due under the standardized future – relief is subject to limits on investments in gold, silver, platinum, palladium, oil and natural gas – National Instrument 81-102 Mutual Funds.

Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, ss. 2.3(f), 2.3(h) and 19.1.