Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Relief granted to commodity pool for extension of lapse date of prospectus for approximately 40 days – additional time needed for renewal of prospectus due to ongoing review.
Applicable Legislative Provisions Securities Act, R.S.O. 1990, c. S 5 as amended, s. 62(5).
May 28, 2013
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO
(the Jurisdiction)
AND
IN THE MATTER OF MAN INVESTMENTS CANADA CORP. (the Filer)
AND
GLG EM INCOME FUND (the Fund)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the 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 prospectus of the Fund dated May 18, 2012 (the Current Prospectus) was June 28, 2013 (the Requested Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission (the OSC) is the principal regulator for this 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 each of the other provinces and territories of Canada (the Passport Jurisdictions).
Interpretation
Unless expressly defined herein, terms in this application have the respective meanings given to them in National Instrument 41-101 General Prospectus Requirements, National Instrument 81-102 Mutual Funds, National Instrument 14-101 Definitions and MI 11-102.
Representations
This decision is based on the following facts represented by the Filer:
The Filer is a corporation incorporated under the Canada Business Corporations Act and is the trustee and manager of the Fund.
The Filer is registered as an investment fund manager in Ontario, Quebec and Newfoundland and Labrador, as an adviser in the category of portfolio manager in Ontario and Alberta and as a dealer in the category of exempt market dealer in Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick and Nova Scotia. The Filer’s head office is located in Toronto, Ontario.
The Fund is a reporting issuer in each of the provinces and territories of Canada.
Neither the Fund nor the Filer is in default of securities legislation in any province or territory of Canada.
Units of the Fund are currently qualified for distribution in each of the Jurisdictions under the current prospectus of the Fund dated May 18, 2012, as amended by Amendment No. 1 dated November 20, 2012 (the Amendment No. 1, collectively, the Current Prospectus).
Pursuant to the section 62(1) of the Legislation, the lapse date for the Current Prospectus was May 18, 2013 (the Current Lapse Date). Accordingly, under the Legislation, the distribution of units of the Fund would have to cease on the Current Lapse Date unless (i) the Fund files a pro forma prospectus for the Fund at least 30 days prior to the Current Lapse Date; (ii) the final prospectus for the Fund is filed no later than 10 days after the Current Lapse Date, i.e. by May 28, 2013; and (iii) a receipt for the final prospectus is obtained within 20 days of the Current Lapse Date.
On April 17, 2013, a pro forma prospectus for the Fund was filed with the OSC. In order to comply with the requirements of the Legislation, the final prospectus for the Fund (the Final Renewal Prospectus) must be filed on or before May 28, 2013 and a receipt must be obtained by June 7, 2013 in order for the distribution of units of the Fund to continue without interruption.
Given the ongoing review of the Pro Forma Prospectus by the OSC, the Filer is requesting additional time by means of an extension of the Current Lapse Date to June 28, 2013, to permit the Filer to respond to the OSC’s comment letter(s), and file the Final Renewal Prospectus for the Fund which satisfactorily addresses all of the OSC’s comments as well as the impact of the federal government’s 2013 budget announcement made on March 21, 2013 on the Fund without resulting in the Fund being forced to cease distribution of units because the Current Prospectus has lapsed.
Since the date of the Amendment No. 1, no undisclosed material change has occurred. Accordingly, the Current Prospectus continues to provide accurate information regarding the Fund.
Given the disclosure obligations of the Filer and the Fund, should any material changes be proposed, the Current Prospectus will be amended accordingly. Therefore, the extension requested will not affect the currency or accuracy of the information contained in the Current Prospectus, and accordingly, will not be prejudicial to the public interest.
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 Decision Maker under the Legislation is that the Requested Relief is granted.
“Vera Nunes”
Vera Nunes
Manager, Investment Funds
Ontario Securities Commission