Beutel Goodman Managed Funds Inc. (Re), 2012 CanLII 82701

Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from sections 15.3(4)(c), 15.6(d), 15.8(2)(a) and 15.8(3)(a) of National Instrument 81-102 Mutual Funds to permit mutual funds which offer their securities under a simplified prospectus to include in their sales communications, performance data for the period when the funds were not a reporting issuer, Section 2.1 of National Instrument 81-101 Mutual Fund Prospectus Disclosure for the purposes of the relief requested from Form 81-101F3 Contents of Fund Facts Document, and Item 4 of Part I of Form 81-101F3 to permit the Funds to include in their respective fund facts for Class I units, the past performance data for the period when the funds were not reporting issuers – the funds distributed their securities under prospectus exemptions prior to becoming reporting issuers – the funds have complied with the investment restrictions and practices in NI 81-102 since inception – the funds are managed substantially similarly since commencing to distribute securities under a simplified prospectus – the funds have prepared annual audited financial statements since inception – the performance data of the funds for the time period before it became a reporting issuer is relevant and useful information for investors. National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from section 4.4 of National Instrument 81-106 Investment Fund Continuous Disclosure for the purposes of the relief requested from Form 81-106F1, Items 3.1(7), 4.1(1), 4.1(2), 4.2(1), 4.3(1) and 4.3(2) of Part B of Form 81-106F1, and Items 3(1) and 4 of Part C of Form 81-106F1 to permit a mutual fund to include in its annual and interim management reports of fund performance the financial highlights and past performance of the funds that are derived from the funds’ annual financial statements that pertain to time periods when the funds were not a reporting issuer – the funds distributed their securities under prospectus exemptions prior to becoming a reporting issuer – the funds have complied with the investment restrictions and practices in NI 81-102 since inception – the funds are managed substantially similarly since commencing to distribute securities under a simplified prospectus – the funds have prepared annual financial statements since inception and in accordance with National Instrument 81-106 Investment Fund Continuous Disclosure since NI 81-106 came into force – the financial highlights and performance data of the funds for the time periods before they became reporting issuers is relevant and useful information for investors. Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, ss. 5.3(4)(c), 15.6(d), 15.8(2)(a), 15.8(3)(a) and 19.1. National Instrument 81-101 Mutual Fund Prospectus Disclosure, s. 2.1. Item 4 of Part I of Form 81-101F3 Contents of Fund Facts Document. National Instrument 81-106 Mutual Fund Continuous Disclosure, ss. 4.4 and 17.1. Items 3.1(7), 4.1(1), 4.1(2), 4.2(1), 4.3(1) and 4.3(2) of Part B of Form 81-106F1 and Items 3(1) and 4 of Part C of Form 81-106F1.

December 17, 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 Beutel Goodman Managed Funds Inc. (the Filer)

and

Beutel Goodman Short Term Bond Fund (ST Bond Fund), Beutel Goodman Global Dividend Fund (Global Dividend Fund) and Beutel Goodman Global Equity Fund (Global Equity Fund) (collectively, the Funds)

Decision

Background

The principal regulator in the Jurisdiction has received an application (the Application) from the Filer on behalf of the Funds for a decision under the securities legislation of the regulator (the Legislation) exempting the Funds from:

(a) sections 15.3(4)(c), 15.6(d), 15.8(2)(a) and 15.8(3)(a) of National Instrument 81-102 Mutual Funds (NI 81-102), to permit the Funds to include in sales communications, for Class I units, their performance data for the period prior to each Fund offering its securities under a simplified prospectus,

(b) section 2.1 of National Instrument 81-101 Mutual Fund Prospectus Disclosure (NI 81-101) for the purposes of the relief requested from Form 81-101F3 Contents of Fund Facts Document (Form 81-101F3); and

(c) item 4 of Part I of Form 81-101F3 to permit the Funds to include in their respective fund facts for Class I units, the past performance data based on the 2009 annual financial statements of the predecessor private pooled funds to each of the Beutel Goodman Short Term Bond Fund and the Beutel Goodman Global Dividend Fund, and the 2010 annual financial statements of the predecessor private pooled fund to the Beutel Goodman Global Equity Fund

(collectively, the Requested Relief).

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

a) the Ontario Securities Commission is the principal regulator for the Application; and

b) the Filer 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 British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, Yukon and Nunavut.

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:

ST Bond Fund:

1. The ST Bond Fund is an open-ended prospectus-qualified mutual fund trust created under the laws of Ontario and is governed by a declaration of trust dated August 13, 2010.

2. The BG Short Term Bond Fund, predecessor to the ST Bond Fund, was a non-prospectus qualified pooled fund created under the laws of Ontario under declaration of trust on June 30, 2006 (ST Bond Inception Date) and began recording performance on July 1, 2006 (ST Bond Performance Date).

3. Since the ST Bond Inception Date until the date of receipt for the ST Bond Fund’s first simplified prospectus and annual information form dated August 13, 2010 (collectively, the ST Bond Prospectus) filed pursuant to NI 81-101, units of the ST Bond Fund were distributed to investors on a prospectus-exempt basis in accordance with National Instrument 45-106 Prospectus and Registration Exemptions and its predecessor legislation in each province and territory of Canada (NI 45-106).

Global Dividend Fund:

4. The Global Dividend Fund is an open-ended prospectus-qualified mutual fund trust created under the laws of Ontario on August 13, 2010 and is governed by a declaration of trust dated August 13, 2010.

5. The BG Global Dividend Fund, predecessor to the Global Dividend Fund, was a non-prospectus-qualified pooled fund created under the laws of Ontario under declaration of trust on November 26, 2007 (Global Dividend Inception Date) and began recording performance on December 1, 2007 (Global Dividend Performance Date).

6. Since the Global Dividend Inception Date until the date of receipt for the Global Dividend Fund’s first simplified prospectus and annual information form dated August 13, 2010 (collectively, the Global Dividend Prospectus) filed pursuant to NI 81-101, units of the Global Dividend Fund were distributed to investors on a prospectus-exempt basis in accordance with NI 45-106. The BG Global Dividend Fund was kept open until its closing on November 15, 2010 to allow for certain distributions to investors.

Global Equity Fund:

7. The Global Equity Fund is an open-ended prospectus-qualified mutual fund trust created under the laws of Ontario on July 6, 2011 and is governed by a declaration of trust dated July 6, 2011.

8. The Beutel Goodman Global Fund, predecessor to the Global Equity Fund, was a non-prospectus-qualified pooled fund created under the laws of Ontario under declaration of trust on April 5, 1995 (Global Equity Inception Date) and began recording performance on July 1, 1995 (Global Equity Performance Date).

9. Since the Global Equity Inception Date until the date of receipt for the Global Equity Fund’s first simplified prospectus and annual information form dated July 6, 2011 (collectively, the Global Equity Prospectus) filed pursuant to NI 81-101, units of the Global Equity Fund were distributed to investors on a prospectus-exempt basis in accordance with NI 45-106.

The Funds and the Filer:

10. The ST Bond Inception Date, Global Dividend Inception Date and Global Equity Inception Date are collectively known as Inception Date.

11. The ST Bond Performance Date, the Global Dividend Performance Date and the Global Equity Performance Date are collectively referred to as the Performance Date.

12. The ST Bond Prospectus, Global Dividend Prospectus and Global Equity Prospectus are collectively known as the Prospectus.

13. Upon the issuance of the receipt for the ST Bond Prospectus and Global Dividend Prospectus on August 18, 2010, and for the Global Equity Prospectus on July 11, 2011, each of the Funds has been permitted to commence distributing its securities to the public and each of the Funds has also become a reporting issuer under the securities legislation of each province and territory of Canada. In addition, each of the Funds has become subject to the requirements of NI 81-102 and National Instrument 81-106 – Investment Fund Continuous Disclosure (NI 81-106) that apply to investment funds that are reporting issuers.

14. The Filer is the investment fund manager of the Fund. The head office of the Filer is located in Ontario.

15. Except as noted in representation 16. below, the Filer and each of the Funds are not in default of securities legislation in any province or territory of Canada.

16. As a result of an order of the OSC dated May 9, 1989 (the Order), for the period beginning the Inception Date to the date of the receipt of the Prospectus for each of the Funds, the Funds were exempt from preparing and filing interim financial statements, and from filing of annual financial statements. One of the conditions of the Order was that annual audited financial statements of the Funds are sent to each holder of units of the Funds within 140 days after the end of the Fund’s last completed financial year. This condition was not complied with as follows: The audited annual financial statements of the Funds were available to investors, all but three of whom were institutional investors, on their request. Representatives of Beutel, Goodman & Company Ltd. (Beutel Goodman), as portfolio manager and investment fund manager to the Funds, and the parent company of the Filer, met at least semi-annually with representatives of the institutional investors to review the detailed quarterly reports provided to such investors which included information on compliance, transactions, the current portfolio and portfolio performance. All three of the non-institutional investors, all of whom were invested in the Global Dividend Fund, were employees or close associates of Beutel Goodman.

17. Since the Inception Date of each Fund, each of the Funds has complied with the investment restrictions and practices contained in NI 81-102, including not using leverage in the management of its portfolio.

18. Each of the Funds has been managed substantially similarly after each became a reporting issuer as each was prior to becoming a reporting issuer. As a result of each Fund becoming a reporting issuer:

a) each of the Fund’s investment objectives have not changed, other than to provide additional detail as required by NI 81-101;

b) the management fee charged for Class I units of each Fund compared to the fee charged in respect of units of the predecessor funds has not changed;

c) the day-to-day administration of each of the Funds has not changed, other than to comply with the additional regulatory requirements associated with being a reporting issuer (none of which would have impacted the portfolio management, i.e., gross performance prior to fees and expenses, of each Fund) and to provide additional features that are available to investors of mutual funds managed by the Filer, as described in the Prospectus of each Fund; and

d) the management expense ratio of each Fund, Class I units, has remained the same, except for the Global Dividend Fund whose management expense ratio increased by 0.1 percent, which the Filer considers to be an immaterial amount.

19. The Filer proposes to present the performance data for Class I units of each Fund for the time period since the respective Performance Date in the sales communications pertaining to the respective Fund. Without the Requested Relief, sales communications pertaining to the Funds would not be permitted to include performance data for the period commencing from the Performance Date till the date of the receipt of each Fund’s Prospectus.

20. As a reporting issuer, each Fund is required by NI 81-106 to prepare and send annual and interim management reports of fund performance (MRFPs) to all holders of its securities on an annual and interim basis. The Filer has filed a separate application for exemptive relief from certain provisions of NI 81-106 (the NI 81-106 Relief) to enable each Fund to include in its MRFPs the financial highlights and performance data of the respective Fund that are derived from its annual financial statements for the time periods prior to its becoming a reporting issuer.

21. The performance and other financial data of each Fund for the time period before it became a reporting issuer is significant and meaningful information for existing and prospective Class I investors of each Fund.

22. Class I units of the Funds are offered under the current prospectus of each Fund to institutional investors who have invested a minimum of $500,000 in a Fund and who have entered into an investment management agreement with the Filer or its parent company, Beutel Goodman, portfolio adviser to the Funds. At the Filer’s discretion, the Filer may waive the investment minimum. As when the Funds were pooled funds, for these types of investors, management fees were and are payable by the investor, not by the Fund, as they were and are negotiated and paid directly by the investor.

23. Each of the Funds has not included past performance data in its MRFPs or fund facts filed since each Fund’s Prospectus other than past performance data related to the full calendar years from the date of the Prospectus for each Fund.

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 Requested Relief is granted provided that:

a) any sales communication and any Fund Facts for Class I units of each Fund that contains performance data of each Fund relating to a period prior to when the Fund was a reporting issuer discloses:

(i) that the Fund was not a reporting issuer during such period; and

(ii) that the expenses of the Fund would have been higher during such period had the Fund been subject to the additional regulatory requirements applicable to a reporting issuer; and

b) each Fund prepares its MRFPs in accordance with the NI 81-106 Relief.

“Vera Nunes”

Name: Vera Nunes

Title: Manager, Investment Funds

Ontario Securities Commission

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from sections 15.3(4)(c), 15.6(d), 15.8(2)(a) and 15.8(3)(a) of National Instrument 81-102 Mutual Funds to permit mutual funds which offer their securities under a simplified prospectus to include in their sales communications, performance data for the period when the funds were not a reporting issuer, Section 2.1 of National Instrument 81-101 Mutual Fund Prospectus Disclosure for the purposes of the relief requested from Form 81-101F3 Contents of Fund Facts Document, and Item 4 of Part I of Form 81-101F3 to permit the Funds to include in their respective fund facts for Class I units, the past performance data for the period when the funds were not reporting issuers – the funds distributed their securities under prospectus exemptions prior to becoming reporting issuers – the funds have complied with the investment restrictions and practices in NI 81-102 since inception – the funds are managed substantially similarly since commencing to distribute securities under a simplified prospectus – the funds have prepared annual audited financial statements since inception – the performance data of the funds for the time period before it became a reporting issuer is relevant and useful information for investors.

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from section 4.4 of National Instrument 81-106 Investment Fund Continuous Disclosure for the purposes of the relief requested from Form 81-106F1, Items 3.1(7), 4.1(1), 4.1(2), 4.2(1), 4.3(1) and 4.3(2) of Part B of Form 81-106F1, and Items 3(1) and 4 of Part C of Form 81-106F1 to permit a mutual fund to include in its annual and interim management reports of fund performance the financial highlights and past performance of the funds that are derived from the funds’ annual financial statements that pertain to time periods when the funds were not a reporting issuer – the funds distributed their securities under prospectus exemptions prior to becoming a reporting issuer – the funds have complied with the investment restrictions and practices in NI 81-102 since inception – the funds are managed substantially similarly since commencing to distribute securities under a simplified prospectus – the funds have prepared annual financial statements since inception and in accordance with National Instrument 81-106 Investment Fund Continuous Disclosure since NI 81-106 came into force – the financial highlights and performance data of the funds for the time periods before they became reporting issuers is relevant and useful information for investors.

Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, ss. 5.3(4)(c), 15.6(d), 15.8(2)(a), 15.8(3)(a) and 19.1.

National Instrument 81-101 Mutual Fund Prospectus Disclosure, s. 2.1.

Item 4 of Part I of Form 81-101F3 Contents of Fund Facts Document.

National Instrument 81-106 Mutual Fund Continuous Disclosure, ss. 4.4 and 17.1.

Items 3.1(7), 4.1(1), 4.1(2), 4.2(1), 4.3(1) and 4.3(2) of Part B of Form 81-106F1 and Items 3(1) and 4 of Part C of Form 81-106F1.