In the Matter of Starlight Investments Capital LP, 2020 CanLII 53020

August 5, 2020

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

STARLIGHT INVESTMENTS CAPITAL LP

(“Starlight”)

AND

THE TOP FUNDS (as defined below)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from Starlight, on behalf of Starlight and its affiliates (collectively, the “Filer”), Starlight Private Global Real Estate Pool and Starlight Private Global Infrastructure Pool (collectively, the “Initial Top Funds”) and any other existing or future mutual fund that is not and will not be, a reporting issuer, and that is, or will be, managed by the Filer (the “Future Top Funds”, and together with the Initial Top Funds, the “Top Funds”) for a decision under the securities legislation of the Jurisdiction (the “Legislation”) in respect of the Fund-on-Fund Structure (as defined below) exempting the Filer and the Top Funds from:

1. the requirement in section 2.2 of National Instrument 81-106 Investment Fund Continuous Disclosure (“NI 81-106”) that the Top Funds file their audited annual financial statements and auditor’s report on or before the 90th day after the Top Funds’ most recently completed financial year (the “Annual Filing Deadline”); and
2. the requirement in paragraph 5.1(2)(a) of NI 81-106 that the Top Funds deliver their audited financial statements by the Annual Filing Deadline (the “Annual Delivery Requirement”)

(collectively, relief from the Annual Filing Deadline and the Annual Delivery Requirement, the “Requested Relief”)

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):

1. the Ontario Securities Commission is the principal regulator for this application, and
2. 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 in each of the provinces and territories of Canada (together with the Jurisdiction, the “Jurisdictions”).

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 herein.

Representations

This decision is based on the following facts represented by the Filer.

The Filer:

1. Starlight is a limited partnership formed under the laws of Ontario with its head office in Toronto, Ontario.
2. Starlight is registered as an investment fund manager, portfolio manager and exempt market dealer in each of Ontario, Québec, and Newfoundland and Labrador, and as a portfolio manager and an exempt market dealer in each of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Saskatchewan.
3. Starlight is not a reporting issuer in any jurisdiction and is not in default of securities legislation of any jurisdiction of Canada.
4. Starlight is the investment fund manager and portfolio manager of Starlight Private Global Real Estate Pool and Starlight Private Global Infrastructure Pool. The Filer is, or will be, the investment fund manager and portfolio manager of each Top Fund. The Filer or a third party will act as trustee of each Top Fund.

The Top Funds

1. Each Initial Top Fund is a trust organized under the laws of Ontario pursuant to a declaration of trust dated April 20, 2020 (the “Trust Agreement”). Each Future Top Fund will be organized as a limited partnership, trust or class of shares of a corporation under the laws of Ontario, another jurisdiction of Canada, or a foreign jurisdiction.
2. Each Top Fund will be a “mutual fund” for the purposes of the Legislation.
3. Securities of each Top Fund will only be offered for sale on a continuous basis to qualified investors in all provinces and territories in Canada pursuant to an exemption from the prospectus requirements under National Instrument 45-106 – Prospectus and Registration Exemptions (“NI 45-106”).
4. Units of each Top Fund will only be distributed in Canada pursuant to exemptions from the prospectus requirement in accordance with NI 45-106. Each investor is, or will be, responsible for making its own investment decisions regarding its purchases and/or redemptions of securities of a Top Fund.
5. None of the Top Funds is, or will be, a reporting issuer in any province or territory of Canada.
6. Each Top Fund will have a financial year-end of December 31.
7. The Filer is the investment fund manager of Starlight Private Global Real Estate Pool and Starlight Private Global Infrastructure Pool. The Filer is, or will be, the investment fund manager and portfolio manager of each Top Fund. The Filer or a third party will act as trustee of each Top Fund.
8. The Initial Top Funds invest in units of the corresponding underlying funds (the “Initial Underlying Funds”).
9. In addition, each Top Fund may also invest in units of one or more future underlying funds (each, a “Future Underlying Fund” and, together with the Initial Underlying Funds, the “Underlying Funds”) which investment or investments will be consistent with the Top Fund’s investment objectives and strategies.
10. The investment objective of each Top Fund is, or will be, to achieve long-term capital growth and/or income by investing in the Underlying Funds. The investment strategy of each Top Fund is to invest a majority of each Top Fund’s assets in Underlying Funds that are private investment entities managed by independent managers.
11. The Filer believes that investing in the Underlying Funds offers benefits not available through a direct investment in the companies, other issuers or assets held by the Underlying Fund.
12. The Filer engages in an extensive due diligence process when selecting Underlying Funds for each Top Fund.
13. Securities of the Underlying Funds are typically redeemable at various intervals, but in some cases may not be redeemable until the termination of the Underlying Funds. As each Top Fund has a long-term investment horizon, each Top Fund is able to manage its own liquidity requirements taking into consideration the frequency at which the securities of the Underlying Funds may be redeemed.
14. The net asset value of each Top Fund (“NAV”) is calculated on a monthly basis, as of the last business day of each month (the “Valuation Date”). Investors of each Top Fund are provided with the NAV on a monthly basis within sixty (60) days of each Valuation Date.
15. The holdings of each Top Fund of securities of the Underlying Funds will be disclosed in the financial statements.

Financial Statements:

1. Generally, section 2.2 and subsection 5.1(2)(a) of NI 81-106 require a Top Fund to file and deliver its annual audited financial statements by the Annual Filing Deadline. As each Top Funds’ financial year-end is December 31, they each have a filing and delivery deadline of March 31.
2. Section 2.11 of NI 81-106 provides an exemption (the “Filing Exemption”) from the Annual Filing Deadline if, among other things, an investment fund delivers its annual financial statements in accordance with part 5 of NI 81-106 by the Annual Filing Deadline.
3. In order to formulate an opinion on the financial statements on each Top Fund, the Top Fund’s auditor requires audited financial statements of the respective Underlying Funds in order to audit the information contained in the Top Fund’s financial statements. The auditors of the Top Funds have advised the Filer that they will be unable to complete the audit of each Top Fund’s annual financial statements until the audited financial statements of the Underlying Funds are completed and available to the respective Top Fund.
4. The Underlying Funds may be domiciled in Canada, the United States, the United Kingdom, Australia, or other OECD countries.
5. The Underlying Funds may have varying financial year-ends and may be subject to a variety of financial reporting deadlines. For example, a material amount of the assets of the Top Funds invested in Underlying Funds will be in Underlying Funds that are governed by laws that require the financial statements to be filed within 120 days of the financial year end of the Underlying Fund. Under the Trust Agreement, each Top Fund must deliver financial statements to investors within 180 days of financial year end.
6. In most cases, the Top Funds will not be able to obtain the financial statements of the Underlying Funds sooner than the deadline for filing the financial statements of the Underlying Funds and, in all cases, no sooner than other unitholders of the Underlying Funds receive the financial statements of the Underlying Funds.
7. The offering memorandum of each Top Fund that will be provided to investors will disclose that annual audited financial statements for the Top Fund will be filed and delivered within 180 days of financial year end, subject to regulatory approval.
8. The Filer will notify its securityholders that it has received and intends to rely on relief from the Annual Filing Deadline and Annual Delivery Requirement.
9. Once a Top Fund becomes subject to NI 81-106, the Filer does not anticipate it will be able to rely on the Filing Exemption since it is unable to prepare and deliver the financial statements and auditor’s report within ninety (90) days after the Top Fund’s most recently completed financial year.
10. It is expected that each Top Fund will not be able to file the annual audited financial statements of the Top Fund by the Annual Filing Deadline. As a result, the Top Fund will not be able to meet the Annual Delivery Requirement. The Filer expects this timing delay in the completion of its annual audited financial statements to occur every year for the foreseeable future.
11. Each Top Fund therefore seeks an extension of the Annual Filing Deadline and Annual Delivery Requirement to June 30 of each year, to enable the Top Fund’s auditors to first receive the audited financial statements of the Underlying Funds so as to be able to prepare the Top Fund’s annual audited financial statements.

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 to a Top Fund for so long as:

1. The Top Fund has a financial year ended December 31.
2. The Top Fund’s investment strategy is to achieve long-term capital growth and/or income by investing the majority of its assets in private investment entities managed by independent managers.
3. The Top Fund invests the majority of its assets in Underlying Funds.
4. No less than 25% of the total assets of the Top Fund at the time the Top Fund makes the initial investment decision in the Underlying Fund(s), are invested in investment entities that have financial reporting periods that end on December 31 of each year and are subject to laws of their jurisdictions that require their financial statements to be delivered within 120 days of their financial year ends.
5. The offering memorandum provided to investors regarding the Top Fund discloses that annual audited financial statements for the Top Fund will be filed and delivered within 180 days of financial year end, subject to regulatory approval.
6. The Top Fund notifies its unitholders that the Top Fund has received and intends to rely on relief from the filing and delivery requirements under section 2.2 and subsection 5.1(2)(a) of NI 81-106.
7. The Top Fund is not a reporting issuer and Starlight is a limited partnership created under the laws of the Province of Ontario and is registered in the categories of investment fund manager, portfolio manager and exempt market dealer in Ontario, Quebec, and Newfoundland and Labrador, and in the categories of portfolio manager and exempt market dealer in Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, and Saskatchewan.
8. a) The audited annual financial statements of the Top Fund are filed on or before the 180th day after the Top Fund's most recently completed financial year; or b) the conditions in section 2.11 of NI 81-106 are met, except for subsection 2.11(b), and the annual audited financial statements are delivered to securityholders in accordance with Part 5 of NI 81-106 on or before the 180th day after the Top Fund's most recently completed financial year.
9. The Requested Relief terminates within one year of the coming into force of any amendment to NI 81-106 or other rule that modifies how the Annual Filing Requirement or Annual Delivery Requirement applies in connection with mutual funds under the Legislation.

“Neeti Varma”

Neeti Varma Manager, Investment Funds and Structured Products ONTARIO SECURITIES COMMISSION

Application No. 2020/0180