Headnote NP 11-203 – Process for Exemptive Relief Applications in Multiple Jurisdictions – approval granted for change of control of mutual fund manager under s. 5.5(2) of NI 81-102 – filers have no plans to change the manager of the funds or to amalgamate or to merge the current manager with any other entity in the immediate or foreseeable future
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds, sections 5.5(2) and 19.1
October 15, 2012
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
ING DIRECT ASSET MANAGEMENT LIMITED (THE FILER OR MANAGER)
AND
ING DIRECT STREETWISE BALANCED INCOME FUND
ING DIRECT STREETWISE BALANCED FUND
ING DIRECT STREETWISE BALANCED GROWTH FUND
ING DIRECT STREETWISE EQUITY GROWTH FUND
(THE FUNDS)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Manager for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for approval of an indirect change of control of the Manager (the Change of Control of Manager) of the Funds in accordance with Section 5.5(2) of National Instrument 81-102 Mutual Funds (NI 81-102) (the Approval Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission 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 (MI 11-102) is intended to be relied upon in each province and territory of Canada other than Ontario (collectively, with Ontario, the Jurisdictions).
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 Filer:
The Manager
The Manager is a corporation incorporated under the laws of Canada and has its head office in Toronto, Ontario.
The Manager is the manager, portfolio advisor and trustee of the Funds.
The Manager is registered as an investment fund manager (IFM) and as a portfolio manager (PM) in Ontario.
The Funds are reporting issuers in all of the Jurisdictions. The Funds are offered by means of a simplified prospectus in accordance with the requirements of Form 81-101F1 and are marketed and distributed through ING Direct Funds Limited (the Distributor), a registered mutual fund dealer in all of the Jurisdictions.
The Manager and the Funds are not in default of applicable securities legislation in any of the Jurisdictions.
The Transaction
The Manager is a direct, wholly-owned subsidiary of ING Bank of Canada (ING Bank Canada). ING Bank Canada is a Schedule II Canadian chartered bank and is an indirect, wholly-owned subsidiary of ING Groep N.V. (ING Group).
In a press release dated August 29, 2012, ING Group announced that an agreement was reached to sell all of the issued and outstanding shares of ING Bank Canada to The Bank of Nova Scotia (Scotiabank) (the Transaction).
The Transaction is subject to regulatory approvals and is expected to close by or prior to December 14, 2012, but in any event, no later than December 31, 2012 (the Closing).
Following the Closing, while Scotiabank will become the new owner of the Manager, no substantive changes are expected in the operation or management of the Funds by the Manager.
Scotiabank
Scotiabank is a Schedule I Canadian chartered bank having assets of approximately $670 billion as at July 31, 2012.
Scotiabank is a reporting issuer in all of the Jurisdictions and its shares are listed and posted for trading on the Toronto Stock Exchange and the New York Stock Exchange under the symbol “BNS”.
Change of Control of Manager
- In respect of the impact of the Change of Control of Manager on the Manager and the management and administration of the Funds:
(a) Scotiabank has confirmed that there is no current intention:
(i) to make any substantive changes as to how the Manager operates or manages the Funds;
(ii) to merge the Manager with any other IFM;
(iii) immediately following the Closing, to change the Manager to Scotiabank or an affiliate of Scotiabank; and
(iv) within the foreseeable period of time, to change the Manager to Scotiabank or an affiliate of Scotiabank.
(b) Scotiabank currently intends to maintain the Funds as a separately managed fund family with the Manager as their IFM and PM;
(c) the Closing is not expected to have any material impact on the business, operations or affairs of the Funds or the securityholders of the Funds;
(d) following the Closing, the directors and officers of the Manager will be unchanged and the Manager will retain the management teams and supervisory personnel that were in place immediately prior to the Closing, and from and after the Closing, the compliance activities of the Manager will be subject to oversight by Scotiabank’s compliance group;
(e) it is not expected that there will be any change in the management of the Funds, including investment objectives and strategies of the Funds, or the expenses that are charged to the Funds as a result of the Closing;
(f) there is no current intention to change the name of the Manager or the names of the Funds as a result of the Transaction, immediately after the Closing;
(g) the Closing will not adversely affect the Manager’s financial position or its ability to fulfill its regulatory obligations; and
(h) upon the Change of Control of Manager, the members of the Manager’s Independent Review Committee (IRC) will cease to be IRC members by operation of section 3.10(1)(c) of National Instrument 81-107 Independent Review Committee for Investment Funds. Immediately following the change of control, the IRC will be reconstituted.
Notice Requirement
- The notice to the securityholders of the Funds with respect to the Transaction in accordance with Section 5.8(1)(a) of NI 81-102 was provided electronically or by mail to such securityholders on September 19, 2012, being more than 60 days prior to the Closing.
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 Approval Sought is granted.
“Raymond Chan”
Raymond Chan
Manager, Investment Funds Branch
Ontario Securities Commission