Counsel Portfolio Services Inc. (Re), 2014 CanLII 853

Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Approval granted for change of custodian. Applicable Legislative Provisions National Instrument 81-102 Mutual Funds, paragraphs 5.5(1)(c), 5.7(1)(c) and Part 6.

January 15, 2014

IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction)

AND

(the Filer)

AND

(the Fund)

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 approval of the proposed change of custodian of the Fund from RBC Investor Services Trust (RBC) to Canadian Imperial Bank of Commerce (CIBC) (the Change of Custodian) under Section 5.5(1)(c) 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 Filer has provided notice that section 4.7 of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in all of the provinces of Canada.

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 Filer is a corporation governed by the laws of Ontario and is registered as a Portfolio Manager and Investment Fund Manager in Ontario and as an Investment Fund Manager in Newfoundland and Labrador and Québec.
The Filer was appointed manager and trustee of the Fund effective on December 3, 2013.
The Filer is not in default of any requirements under applicable securities legislation.
The Fund is an open-ended mutual fund trust established under a master declaration of trust dated as of January 2, 2008, as amended.
The units of the Fund are currently offered for sale in each of the provinces of Canada under a simplified prospectus, annual information form and fund facts, each dated June 21, 2013, as amended.
The Fund is a reporting issuer in each of the provinces of Canada and is not in default of any requirements under applicable securities legislation.
RBC is currently the custodian of the Fund. The Filer proposes replacing RBC with CIBC as custodian of the Fund effective on or about March 31, 2014.
The primary reason for the proposed change is to create administrative efficiencies.
CIBC is the custodian of the other 37 mutual funds which are managed by the Filer (the Counsel Funds) and that custodial arrangement is in compliance with Part 6 of NI 81-102. The Filer is not an affiliate of CIBC.
CIBC will engage sub-custodians in connection with assets of the Fund held outside of Canada as required.
The Change of Custodian will be beneficial to the Fund and its unitholders as it will create administrative efficiencies by having custody of all the mutual funds managed by the Filer with the same custodian.
The Filer does not regard the proposed change in the custodian as either a “material change” as defined in Section 1.1 of National Instrument 81-106 – Investment Fund Continuous Disclosure, or as a “conflict of interest matter” as defined in Section 1.2 of National Instrument 81-107 – Independent Review Committee for Investment Funds.
Details of the proposed change in the custodian of the Fund are set out in Amendment No.3 to the Simplified Prospectus and Annual Information Form of the Fund dated December 6, 2013.

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.

Signed

Vera Nunes

Manager, Investment Funds

Ontario Securities Commission