Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief granted 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 mutual funds to include in 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 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 financial statements since inception and in accordance with NI 81-106– 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 81-106 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.
September 30, 2013
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 Guardian Capital LP (the Filer)
and
Guardian Balanced Fund, Guardian Balanced Income Fund, Guardian Canadian Bond Fund, Guardian Canadian Equity Fund, Guardian Canadian Growth Equity Fund, Guardian Canadian Plus Equity Fund, Guardian Canadian Short-Term Investment Fund, Guardian Canadian Small/Mid Cap Equity Fund, Guardian Equity Income Fund, Guardian Global Dividend Growth Fund, Guardian Global Equity Fund, Guardian Growth & Income Fund, Guardian High Yield Bond Fund, Guardian International Equity Fund and Guardian U.S. Equity Fund
(individually, a Fund and 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) Section 4.4 of NI 81-106 for the purposes of relief requested herein from Form 81-106F1 – Contents of Annual and Interim Management Report of Fund Performance (Form 81-106F1); and
(b) 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 each Fund, with respect to its Series I Units, to include in its annual and interim management reports of fund performance the past performance data of the Fund notwithstanding that such performance data relates to a period prior to the Fund offering its securities under a prospectus,
(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:
- Each Fund is an open-ended mutual fund trust created under the laws of the Province of Ontario on the following dates:
Fund Name
Date of Inception
Guardian Canadian Equity Fund
December 1, 1985
Guardian Canadian Growth Equity Fund
July 31, 1986
Guardian Balanced Fund
July 31, 1995
Guardian U.S. Equity Fund
November 28, 1995
Guardian Canadian Bond Fund Guardian Canadian Small/Mid Cap Equity Fund Guardian International Equity Fund
January 3, 1997 January 3, 1997 January 3, 1997
Guardian Global Equity Fund
July 10, 1998
Guardian High Yield Bond Fund
May 1, 1999
Guardian Equity Income Fund
February 14, 2003
Guardian Canadian Plus Equity Fund
January 1, 2006
Guardian Canadian Short-Term Investment Fund
February 2, 2009
Guardian Global Dividend Growth Fund
May 31, 2010
Guardian Growth & Income Fund
September 30, 2012
Guardian Balanced Income Fund
October 22, 2012
(individually, an Inception Date, and collectively, the Inception Dates).
Each Fund is governed by an amended and restated master declaration of trust dated March 14, 2011, as amended.
The Filer is the investment fund manager of the Funds. The head office of the Filer is located in Ontario.
Since the respective Inception Dates until March 30, 2011, Series I units (the Series I Units) of each Fund, other than Guardian Balanced Income Fund and Guardian Growth & Income Fund (individually, a 2013 New Fund and collectively, the 2013 New Funds), were distributed to investors on a prospectus-exempt basis in accordance with National Instrument 45-106 – Prospectus and Registration Exemptions (NI 45-106) and its predecessor legislation in each Jurisdiction. Since the respective Inception Dates of the 2013 New Funds until April 8, 2013, Series I Units of each 2013 New Fund were distributed to investors on a prospectus-exempt basis in accordance with NI 45-106 in each Jurisdiction.
Since the issuance of the receipt for the simplified prospectus and annual information form on March 30, 2011, each Fund, other than the 2013 New Funds, has distributed Series I Units to the public and each Fund, other than the 2013 New Funds, also became a reporting issuer under the securities legislation of each province and territory of Canada, other than Québec (collectively, the “Jurisdictions”). In addition, each Fund, other than the 2013 New Funds, became subject to the requirements of National Instrument 81-102 – Mutual Funds (NI 81-102) and National Instrument 81-106 – Investment Fund Continuous Disclosure (NI 81-106) that apply only to investment funds that are reporting issuers.
Each 2013 New Fund commenced distributing its Series I Units pursuant to a simplified prospectus dated April 5, 2013 (the Prospectus). Since the issuance of the receipt for the Prospectus and annual information form of the Funds on April 8, 2013, each 2013 New Fund became a reporting issuer in each of the Jurisdictions and became subject to the requirements of NI 81-102. Each 2013 New Fund also became subject to the requirements of NI 81-106 that apply only to investment funds that are reporting issuers.
The Filer and the Funds are not in default of securities legislation in any province or territory of Canada.
Since its Inception Date, as a “mutual fund in Ontario”, each Fund has prepared and sent annual and interim financial statements to all holders of its securities in accordance with NI 81-106.
Since its Inception Date, each Fund has complied with the investment restrictions and practices contained in NI 81‑102, including not using leverage in the management of its portfolio.
Each Fund has been managed substantially similarly after it became a reporting issuer as it was prior to becoming a reporting issuer. As a result of each Fund becoming a reporting issuer:
i. the Fund’s investment objectives have not changed, other than to provide additional detail as required by National Instrument 81-101 - Mutual Fund Prospectus Disclosure (NI 81-101);
ii. the management fee charged to the Fund in respect of its Series I Units has not changed;
iii. the day-to-day administration of the Fund 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 of the Fund) and to provide additional features that are available to investors of mutual funds managed by the Filer, as described in the Prospectus; and
iv. the management expense ratio of the Series I Units of each Fund has not increased by more than 0.10%, which the Filer considers to be an immaterial amount.
As a reporting issuer, each Fund is required under NI 81-106 to prepare and send annual and interim management reports of fund performance (individually, an MRFP and collectively, the MRFPs) in accordance with NI 81-106.
Without the Requested Relief, the MRFPs of each Fund cannot include financial highlights and performance data of the Fund that relate to a period prior to its becoming a reporting issuer.
The Filer also proposes to present the performance data of the Series I Units of each Fund for the time period since its inception in sales communications and fund facts of each Fund. The Filer has filed a separate application for exemptive relief from certain provisions of NI 81‑102 and Form 81-101F3 – Contents of Fund Facts Document to permit each Fund, with respect to its Series I Units, to include its performance data since its inception in sales communications and fund facts (the NI 81-102 and NI 81-101 Relief).
The performance data 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 investors of the Series I Units of the 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 MRFP that includes performance data of Series I Units of each Fund relating to a period prior to when each Fund was a reporting issuer discloses:
(i) that the Fund was not a reporting issuer during such period;
(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
(iii) that the financial statements of the Fund for such period are posted on the Fund’s website and are available to investors upon request;
(b) the Filer posts the financial statements of each Fund for the past 10 years or since the Fund’s inception, whichever period is lesser, on the Fund’s website and makes those financial statements available to investors upon request; and
(c) the Funds prepare the Prospectus, sales communications and fund facts in accordance with the NI 81‑102 and NI 81-101 Relief.
“Vera Nunes”
Vera Nunes Manager, Investment Funds Ontario Securities Commission