May 5, 2015
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 COUNSEL PORTFOLIO SERVICES INC. (the Filer)
AND
BRIGATA DIVERSIFIED PORTFOLIO (the Fund)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Fund for a decision under the securities legislation of the Jurisdiction (the Legislation) for an extension of the time limits pertaining to filing the renewal prospectus of the Fund in all provinces of Canada, as if the lapse date of the simplified prospectus and annual information form of the Fund dated June 27, 2014 was September 4, 2015 (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 this application; and
(b) an equivalent exemption is sought in each of the other provinces of Canada. Notice to each of the other provinces, pursuant to section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is provided by giving notice to the principal regulator.
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 the trustee and manager of the Fund.
The Fund is an open-ended mutual fund established under the laws of Ontario.
Units of the Fund are currently offered for distribution in each of the provinces of Canada under a simplified prospectus and annual information form dated June 27, 2014 (collectively, the Current Prospectus).
The lapse date for the Current Prospectus is June 27, 2015, (the Current Lapse Date). Accordingly, the distribution of units of the Fund would have to cease on the Current Lapse Date unless (i) the Fund files a pro-forma simplified prospectus for the Fund at least 30 days prior to the Current Lapse Date; (ii) the final simplified prospectus is filed no later than 10 days after the Current Lapse Date; and (iii) a receipt for the final simplified prospectus is obtained within 20 days of the Current Lapse Date.
The Filer is also the trustee, manager and portfolio manager of 39 other mutual funds (the Counsel Funds) which are offered for distribution under a separate simplified prospectus and annual information form dated October 28, 2014 in each of the provinces and territories of Canada, other than Québec.
The Filer would like to merge the Fund into another Counsel Fund thereby removing the requirement to file a renewal for the Fund.
On April 15, 2015 the Independent Review Committee of the Fund considered the proposed merger with respect to conflict of interest issues and determined that the proposed merger, if implemented, would achieve a fair and reasonable result for investors in the Fund and the other Counsel Fund.
On April 22, 2015, the Filer issued a press release and filed a material change report and subsequently filed an amendment to the prospectus, annual information form and fund facts on SEDAR announcing that it was proposing to merge the Fund into the Counsel Fund upon receiving regulatory and unitholder approval.
A special meeting of the unitholders of the Fund is scheduled to be held on or about June 24, 2015 to consider the merger. It is expected that upon receiving all required approvals, the merger will occur on or about June 26, 2015.
If the Requested Relief is not granted, a pro forma simplified prospectus and associated documents for the Fund would have to be filed by May 28, 2015 to allow the Fund to continue with distribution of its securities beyond the lapse date of June 27, 2015. Accordingly, unnecessary expenses will be incurred in preparing and filing renewal documents for a simplified prospectus that could be terminated immediately before the lapse date.
Should the proposed merger not receive all requisite approvals, the Requested Relief would provide sufficient time to allow for the filing of the pro forma simplified prospectus, annual information form and the Fund Facts documents for the Fund.
There have been no material changes in the affairs of the Fund since the date of the Current Prospectus, other than those for which amendments have been filed. Accordingly, the Current Prospectus, as amended, represents current information of the Fund.
The Requested Relief will not affect the accuracy of the information contained in the Current Prospectus, as amended, and therefore will not be prejudicial to the public interest.
None of the Fund, Counsel Funds, or the Filer is in default of securities legislation in any jurisdiction of Canada.
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.
“ Darren McKall”
Darren McKall, Manager, Investment Funds and Structured Products Ontario Securities Commission