June 2, 2017
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 SIONNA INVESTMENT MANAGERS INC. (the Filer)
AND
IN THE MATTER OF THE TOP FUNDS (as defined below)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of each of the Filer, Sionna Canadian Balanced Fund (the Initial Top Fund), and one or more investment funds which are not reporting issuers under the securities legislation of the principal regulator (the Legislation) and which are established, advised or managed by the Filer in the future (the Future Top Funds, and together with the Initial Top Fund, the Top Funds) for a decision under the Legislation in respect of the Fund-of-Fund Structure (as defined below) exempting the Filer and the Top Funds from:
(a) the restriction in the Legislation that prohibits an investment fund from knowingly making an investment in any person or company in which the investment fund, alone or together with one or more related investment funds, is a substantial security holder;
(b) the restriction in the Legislation that prohibits an investment fund from knowingly making an investment in an issuer in which:
(i) any officer or director of the investment fund, its management company or distribution company or an associate of any of them, or
(ii) any person or company who is a substantial securityholder of the investment fund, its management company or its distribution company,
has a significant interest; and
(c) the restriction in the Legislation that prohibits an investment fund, its management company or its distribution company from knowingly holding an investment described in paragraph (a) or (b) above (collectively, the Investment Restrictions),
to permit the Filer to cause the Top Funds to invest in the Underlying Funds (as defined below) (the Requested Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
a) the Ontario Securities Commission (the “Commission”) 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 respect of the Requested Relief in Alberta.
Interpretation
Unless otherwise defined herein, terms in this decision have the respective meanings given to them in National Instrument 14-101 Definitions and MI 11-102.
Representations
This decision is based on the following facts represented by the Filer:
The Filer
The Filer is a corporation existing under the laws of Canada with its head office in Toronto, Ontario.
The Filer is registered with the Commission in the categories of investment fund manager, portfolio manager and exempt market dealer. The Filer is also registered as: (i) a portfolio manager in Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Saskatchewan and Yukon, (ii) an exempt market dealer and portfolio manager in Newfoundland and Labrador, and (iii) a portfolio manager and investment fund manager in Québec;
The Filer is not a reporting issuer in any jurisdiction and is not in default of securities legislation of any jurisdiction of Canada, except as noted in paragraphs 13 and 15, below.
Top Funds
The Initial Top Fund is organized under the laws of Ontario as a trust. Each Future Top Fund will be organized as a trust under the laws of Ontario or another jurisdiction in Canada.
Each Top Fund is or will be a "mutual fund" for the purposes of the Legislation.
The Initial Top Fund is not, and each Future Top Fund will not be, a reporting issuer in any province or territory of Canada.
The Filer is, or will be, the investment fund manager and the portfolio manager of the Initial Top Fund and each of the Future Top Funds.
State Street Trust Company Canada acts as the trustee for the Initial Top Fund. State Street Trust Company Canada or another qualified third party will act as trustee of a Top Fund.
Securities of the Initial Top Fund and each Future Top Fund are, or will be, offered on a private placement basis to qualified investors pursuant to available exemptions from the prospectus requirements under Canadian securities legislation.
The investment objective of the Initial Top Fund is to generate long-term total returns and offer downside protection through a combination of capital growth, dividends and interest income. The Fund will invest in equity and fixed income securities and strive to achieve its objective by active security selection and strategic asset mix management.
The Initial Top Fund is not in default of securities legislation in any province or territory of Canada, except as noted in paragraphs 13 and 15.
The Initial Top Fund’s strategy contemplates exposure of 0% to 10% with a target of 5% of its net asset value in non-Canadian equity markets.
On September 30, 2013, the Filer established Sionna Focused U.S. Value Fund (the Initial Underlying Fund). On September 30, 2015, the Filer decided it was in the best interests of the Initial Top Fund to replace the Initial Top Fund’s non-Canadian exposure through its investment in a mutual fund managed by a party other than the Filer with an investment in the Initial Underlying Fund, which was managed by the Filer, and thereby inadvertently made an investment which required the Requested Relief.
There was no duplication in fees between the Initial Top Fund and the Initial Underlying Fund.
The need for the Requested Relief was realized when the Filer decided to replace the Initial Top Fund’s non-Canadian exposure through its investment in the Initial Underlying Fund with an investment in the recently established Sionna Global Equity Fund (the Subsequent Underlying Fund), which was also managed by the Filer. As soon as the requirement to seek the Requested Relief came to the Filer’s attention, the Filer initiated the process of seeking the Requested Relief and has strengthened its internal control systems to ensure future compliance with applicable laws and regulations. The Initial Top Fund does not currently hold any units of the Subsequent Underlying Fund.
Underlying Funds
The Initial Underlying Fund and the Subsequent Underlying Fund are not, and each investment fund that is established, managed, or advised by the Filer in the future (the Future Underlying Funds, and together with the Initial Underlying Fund and Subsequent Underlying Fund, the Underlying Funds) will not be, a reporting issuer in any province or territory of Canada.
Each of the Initial Underlying Fund and Subsequent Underlying Fund is organized as a trust under the laws of the Province of Ontario.
The investment objective of the Initial Underlying Fund is to generate long-term capital appreciation and offer downside protection by investing in a portfolio of quality U.S. companies across the capitalization range.
The investment objective of the Subsequent Underlying Fund is to generate long-term capital appreciation and offer downside protection by investing in a portfolio of quality global companies across the capitalization range.
Each Future Underlying Fund will be organized as a trust under the laws of the Province of Ontario or another jurisdiction in Canada. Each of the Initial Underlying Fund and Subsequent Underlying Fund is a "mutual fund" for the purposes of the Legislation.
Securities of each Underlying Fund will be offered to qualified investors resident in Canada, including the Top Funds, on a private placement basis pursuant to available exemptions from the prospectus requirements under applicable securities legislation.
The Filer is the investment fund manager and portfolio manager of the Initial Underlying Fund and Subsequent Underlying Fund and will be the investment manager and the portfolio manager of each of the Future Underlying Funds.
Both the Filer and a substantial security holder of the Filer, who is also an officer and director of the Filer, have a significant interest in the Initial Underlying Fund, and the Initial Top Fund is a substantial security holder of the Initial Underlying Fund.
This substantial security holder of the Filer also has a significant interest in the Subsequent Underlying Fund.
If the Initial Top Fund invests the targeted 5% of its current net asset value in the Subsequent Underlying Fund in accordance with the strategy referred to in paragraph 12, above, the Initial Top Fund will become a substantial security holder of the Subsequent Underlying Fund based on the current net asset value of the Subsequent Underlying Fund.
The Underlying Funds will primarily hold publicly traded securities and will not hold greater than 10% of their assets in “illiquid assets”, as defined in National Instrument 81-102 Investment Funds (“NI 81-102”).
Fund-of-Fund Structure
The Top Funds will invest directly in a portfolio of securities that is consistent with each Top Funds’ investment strategy, but there may be circumstances where the Filer determines it would be in the best interests of the Fund to invest a portion of its portfolio in an Underlying Fund for diversification (the Fund-of-Fund Structure). The Filer believes that the Fund-of-Fund Structure provides an efficient and cost-effective manner of pursuing portfolio diversification on behalf of the Top Funds rather than through the direct purchase of securities.
No Underlying Fund will be a Top Fund.
Implementing diversification in a Top Fund by investing in an Underlying Fund provides economies of scale, allows the Top Fund to achieve its investment objectives in a cost efficient manner and will not be detrimental to the interests of other securityholders of an Underlying Fund.
An investment in an Underlying Fund by a Top Fund will be effected at an objective price. According to the Filer’s policies and procedures, an objective price for this purpose, will be the net asset value (NAV) per security of the applicable class or series of the applicable Underlying Fund, calculated in accordance with section 14.2 of National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106).
The amounts invested, from time to time, in an Underlying Fund by one or more of the Top Funds, may exceed 20% of the outstanding voting securities of any single Underlying Fund. Accordingly, each Top Fund could, either alone or together with Future Top Funds, become a substantial security holder of an Underlying Fund.
Each Underlying Fund has, or is expected to have, other investors in addition to the Top Funds.
Securities of the Top Funds and their corresponding Underlying Funds have, or will have, matching daily redemption dates and matching daily valuation dates.
In addition, the Fund-of-Fund structure may result in a Top Fund investing in an Underlying Fund (i) in which an officer or director of the Top Fund, of the Filer or of an associate of any of them has a significant interest, and/or (ii) where a substantial security holder of the Top Fund or the Filer has a significant interest.
The Top Funds and Underlying Funds will prepare annual audited financial statements and interim financial reports in accordance with NI 81-106 and will otherwise comply with the requirements of NI 81-106.
In the absence of the Requested Relief, the Top Funds would be precluded by the Investment Restrictions from implementing the Fund-of-Fund Structure. Specifically, a Top Fund would be prohibited from: (i) becoming a substantial security holder of an Underlying Fund, either alone or together with related investment funds, and from (ii) investing in an Underlying Fund in which an officer or director of the Filer has a significant interest and/or in an Underlying Fund in which a substantial security holder of the Top Fund or the Filer has a significant interest.
The Fund-of-Fund Structure represents the business judgment of responsible persons as of the date hereof, uninfluenced by considerations other than the best interests of the Top Funds. The “responsible persons” of the Filer with respect to the Fund-of-Fund Structure are the executive committee of the Filer, which includes the substantial security holder of the Filer referred to in paragraphs 23 and 24, above, other executive officers of the Filer, and the lead portfolio managers for the applicable Top Fund(s) and Underlying Fund(s).
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) securities of a Top Fund are distributed in Canada solely pursuant to exemptions from the prospectus requirement under applicable securities legislation;
(b) an investment by a Top Fund in an Underlying Fund is consistent with the fundamental investment objectives and strategy of the Top Fund;
(c) an investment in an Underlying Fund by a Top Fund will be effected at an objective price, calculated in accordance with section 14.2 of NI 81-106;
a Top Fund will not invest in an Underlying Fund, unless the Underlying Fund complies with the provisions of NI 81-106 that apply to a “mutual fund in Ontario” as defined in the Securities Act (Ontario);
(d) no Top Fund will purchase or hold a security of an Underlying Fund unless at the time of purchasing securities of the Underlying Fund, the Underlying Fund holds no more than 10% of its NAV in securities of other mutual funds, unless the Underlying Fund:
(i) is a clone fund (as defined in NI 81-102);
(ii) purchases or holds securities of a ‘money market fund’ (as defined in NI 81-102); or
(iii) purchases or holds securities that are “index participation units” (as defined by NI 81-102) issued by an investment fund;
(e) no management fees or incentive fees are payable by a Top Fund that, to a reasonable person, would duplicate a fee payable by an Underlying Fund for the same service;
(g) no sales fee or redemption fees are payable by a Top Fund in relation to its purchases or redemptions of securities of an Underlying Fund that, to a reasonable person, would duplicate a fee payable by an investor in the Top Fund, other than brokerage fees incurred for the purchase or sale of an index participation unit issued by an investment fund;
(h) the Filer does not cause the securities of an Underlying Fund held by a Top Fund to be voted at any meeting of the holders of such securities, except that the Filer may arrange for the securities the Top Fund holds in the Underlying Fund to be voted by the beneficial owners of the securities of the Top Fund, who are not the Filer or an officer, director or substantial security holder of the Filer;
(i) when purchasing and/or redeeming securities of an Underlying Fund, the Filer shall as investment fund manager of the applicable Top Fund and Underlying Fund act honestly, in good faith and in the best interests of the Top Fund and the Underlying Fund, respectively, and shall exercise the care and diligence that a reasonably prudent person would exercise in comparable circumstances;
(j) a disclosure document, including an offering memorandum where available, of a Top Fund shall be provided to each investor in a Top Fund prior to the time of the investor’s investment, and shall disclose:
(i) that the Top Fund may purchase securities of an applicable, identified Underlying Fund and that if the Top Fund decides to purchase securities of an Underlying Fund that is not identified in the disclosure document, the Top Fund will notify investors of the Top Fund at the time of the purchase;
(ii) that the Filer is the investment fund manager and portfolio manager of both the Top Fund and the Underlying Fund;
(iii) the approximate or maximum percentage of net assets of the Top Fund that is intended be invested in securities of Underlying Funds;
(iv) the fees, expenses and any performance or special incentive distributions payable by an Underlying Fund in which the Top Fund invests;
(v) the process or criteria used to select an Underlying Fund;
(vi) for each officer, director and/or substantial security holder of the Filer, or of a Top Fund, that has a significant interest in an applicable Underlying Fund, and for the officers and directors and substantial security holders who together in aggregate hold a significant interest in an applicable Underlying Fund, the approximate amount of the significant interest they hold, on an aggregate basis, expressed as a percentage of the applicable Underlying Fund’s NAV, and the potential conflicts of interest which may arise;
(vii) that investors are entitled to receive from the Filer, on request and free of charge, a copy of the offering memorandum or other similar disclosure document of each Underlying Fund, if available;
(viii) that investors are entitled to receive from the Filer, on request and free of charge, the annual audited financial statements and interim financial reports relating to each Underlying Fund in which the Top Fund invests; and
(k) the Filer shall annually inform investors in a Top Fund of their right to receive from the Filer, on request and free of charge, a copy of the offering memorandum or other similar disclosure document of each Underlying Fund, if available, and the annual audited financial statements and interim financial reports relating to each Underlying Fund in which the Top Fund invests.
Signed “Philip Anisman” Signed “Grant Vingoe”
Commissioner Vice-Chair
Ontario Securities Commission Ontario Securities Commission