Mackenzie Financial Corporation (Re), 2021 CanLII 51990

June 16, 2021

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 MACKENZIE FINANCIAL CORPORATION (the Filer)

AND IN THE MATTER OF

MACKENZIE CANADIAN DIVIDEND FUND II

MACKENZIE CANADIAN GROWTH BALANCED FUND II

MACKENZIE CANADIAN GROWTH FUND II

MACKENZIE CUNDILL VALUE FUND II

MACKENZIE EMERGING MARKETS FUND II

MACKENZIE GLOBAL GROWTH FUND

MACKENZIE GLOBAL RESOURCE FUND II

MACKENZIE GOLD BULLION FUND

MACKENZIE IVY CANADIAN BALANCED FUND II

MACKENZIE IVY EUROPEAN FUND

MACKENZIE IVY FOREIGN EQUITY FUND II

MACKENZIE IVY FOREIGN EQUITY CURRENCY NEUTRAL FUND

MACKENZIE IVY GLOBAL BALANCED FUND II

MACKENZIE IVY INTERNATIONAL FUND II

MACKENZIE MAXIMUM DIVERSIFICATION CANADA INDEX FUND

MACKENZIE PRECIOUS METALS FUND

MACKENZIE STRATEGIC INCOME FUND II

MACKENZIE US GROWTH FUND

MACKENZIE US SMALL-MID CAP GROWTH FUND

MACKENZIE US SMALL-MID CAP GROWTH CURRENCY NEUTRAL FUND

SYMMETRY BALANCED PORTFOLIO II

SYMMETRY CONSERVATIVE INCOME PORTFOLIO II

SYMMETRY CONSERVATIVE PORTFOLIO II

SYMMETRY EQUITY PORTFOLIO

SYMMETRY MODERATE GROWTH PORTFOLIO II (collectively, the Continuing Funds)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of the Continuing Funds, for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) granting an exemption from:

(a) section 3.1 of National Instrument 81-102 Investment Funds (NI 81-102) to permit the filing of a simplified prospectus for the Continuing Funds (the Simplified Prospectus), notwithstanding that the initial investment required in respect of each of the Continuing Funds (the Seed Capital Requirement) will not be provided (the Seed Capital Relief);

(b) section 2.1 of National Instrument 81-101 Mutual Fund Prospectus Disclosure (NI 81-101) for the purposes of the following exemptions sought from Form 81‑101F1 Contents of Simplified Prospectus (Form 81-101F1) and Form 81-101F3 Contents of Fund Facts Document (Form 81-101F3);

(i) Item 5(b) of Part B of Form 81-101F1 to permit the Continuing Funds to disclose the series start dates of the Terminating Funds as its series start dates in the Simplified Prospectus;

(ii) Item 9.1(b) of Part B of Form 81-101F1 to permit the Continuing Funds to use the performance history of the Terminating Funds to calculate its investment risk rating in the Simplified Prospectus;

(iii) Item 13.2 of Part B of Form 81-101F1 to permit the Continuing Funds to use the financial data of the Terminating Funds in making the calculation required under the subheading “Fund Expenses Indirectly Borne by Investors” in the Simplified Prospectus;

(iv) Item 2 of Part I of Form 81-101F3 to permit the Continuing Funds to use the management expense ratio (the MER) and the start date of each series of the Terminating Funds in the “Management expense ratio (MER)” and “Date series started” boxes, respectively, of the Quick Facts table in the fund facts documents of each series of the Continuing Funds (the Fund Facts Documents);

(v) Item 3 of Part I of Form 81-101F3 to permit the Continuing Funds to show the investments of the Terminating Funds in the “Top 10 investments” and “Investment mix” tables in the Continuing Funds’ initial Fund Facts Documents;

(vi) Item 4 of Part I of Form 81-101F3 to permit the Continuing Funds to use the performance history of the Terminating Funds to calculate its investment risk rating in the Fund Facts Documents;

(vii) Item 5 of Part I of Form 81-101F3 to permit the Continuing Funds to use the performance data of the Terminating Funds in the “Average return”, “Year-by-year returns” and “Best and worst 3-month returns” sections in the Fund Facts Documents; and

(viii) Item 1.3 of Part II of Form 81-101F3 to permit the Continuing Funds to use the MER, trading expense ratio (the TER) and fund expenses of the Terminating Funds in the “Fund expenses” section of the Fund Facts Documents;

(c) sections 15.3(2), 15.6(1)(a)(i)(A), 15.6(1)(b), 15.6(1)(d)(i), 15.8(2)(a), 15.8(3)(a) and 15.9(2) of NI 81-102 to permit the Continuing Funds to use the performance data of the Terminating Funds in sales communications and reports to securityholders of the Continuing Fund (collectively, the Fund Communications Relief);

(d) section 15.1.1 of NI 81-102 to permit the Continuing Funds to calculate its investment risk level using the performance history of the Terminating Funds (together with paragraphs (b) and (c) above, the Past Performance Relief); and

(e) section 4.4 of National Instrument 81-106 Investment Fund Continuous Disclosure for relief from the requirements of Form 81-106F1 Contents of Annual and Interim Management Report of Fund Performance (Form 81-106F1) set out below, to permit each Continuing Fund to include in its annual and interim management reports of fund performance (MRFPs) the performance data and information derived from the financial statements and other financial information (collectively, the Financial Data) of the respective Terminating Fund as follows:

(i) Items 3.1(1), 3.1(7), 3.1(7.1) and 3.1(8) of Part B of Form 81-106F1 to permit each Continuing Fund to use the financial highlights of the corresponding Terminating Fund in its Form 81-106F1;

(ii) Items 4.1(1), 4.1(2), 4.2(1), 4.2(2), 4.3(1)(a) and 4.3(1)(b) of Part B of Form 81-106F1 to permit each Continuing Fund to use the past performance data of the corresponding Terminating Fund in its Form 81-106F1; and

(iii) Items 3(1) and 4 of Part C of Form 81-106F1 to permit each Continuing Fund to use the financial highlights and past performance data of the corresponding Terminating Fund in its Form 81-106F1 (the Continuous Disclosure Relief, and together with the Seed Capital Relief and Past Performance Relief, the Relief Requested).

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;

(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 each of British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Northwest Territories, Nunavut and Yukon (together with Ontario, 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.

In addition, the following terms have the meanings set out below:

“Hard-Capped Terminating Funds” means Mackenzie Strategic Income Class, Mackenzie Ivy Foreign Equity Class, Mackenzie Emerging Markets Class, Symmetry Conservative Income Portfolio Class and Symmetry Conservative Portfolio Class.

“Terminating Funds” means Mackenzie Canadian Dividend Class, Mackenzie Canadian Growth Balanced Class, Mackenzie Canadian Growth Class, Mackenzie Cundill Value Class, Mackenzie Emerging Markets Class, Mackenzie Global Growth Class, Mackenzie Global Resource Class, Mackenzie Gold Bullion Class, Mackenzie Ivy Canadian Balanced Class, Mackenzie Ivy European Class, Mackenzie Ivy Foreign Equity Class, Mackenzie Ivy Foreign Equity Currency Neutral Class, Mackenzie Ivy Global Balanced Class, Mackenzie Ivy International Class, Mackenzie Maximum Diversification Canada Index Class, Mackenzie Precious Metals Class, Mackenzie Strategic Income Class, Mackenzie US Growth Class, Mackenzie US Small-Mid Cap Growth Class, Mackenzie US Small-Mid Cap Growth Currency Neutral Class, Symmetry Balanced Portfolio Class, Symmetry Conservative Income Portfolio Class, Symmetry Conservative Portfolio Class, Symmetry Equity Portfolio Class and Symmetry Moderate Growth Portfolio Class.

“Funds” means the Continuing Funds and the Terminating Funds.

Representations

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

The Filer, the Funds and the Mergers

1. The Filer is a corporation amalgamated under the laws of Ontario with its head office in Toronto, Ontario.

2. The Filer is the investment fund manager of the Terminating Funds and is registered as follows: as an investment fund manager in Ontario, Quebec and Newfoundland and Labrador; as a portfolio manager and exempt market dealer in Ontario and the Other Jurisdictions; as an adviser in Manitoba; and as a commodity trading manager in Ontario.

3. The Terminating Funds are classes of Mackenzie Financial Capital Corporation established under the laws of Ontario.

4. Securities of each Terminating Fund, excluding the Hard-Capped Terminating Funds, are currently qualified for sale in each of the Jurisdictions under a simplified prospectus, annual information form and fund facts document each dated September 25, 2020 (collectively, the Offering Documents), each of which has been prepared in accordance with NI 81-102.

5. Securities of each Hard-Capped Terminating Fund are no longer qualified for distribution, but are required to file the applicable Continuous Disclosure documents.

6. Each Continuing Fund is expected on its creation to be, an open-ended trust established under the laws of Ontario. The Filer will be the investment fund manager and trustee of each of the Continuing Funds upon creation.

7. The Filer filed a preliminary simplified prospectus, annual information form and fund facts documents in each of the Jurisdictions on May 26, 2021 with respect to the Continuing Funds. The Filer will not begin distributing securities of the Continuing Funds prior to the applicable Merger.

8. Each Continuing Fund is expected to be a reporting issuer under the applicable securities legislation in each of the Jurisdictions and is expected to be subject to NI 81-102.

9. Neither the Filer, nor any of the Terminating Funds, are in default of securities legislation in any of the Jurisdictions.

10. Each Terminating Fund follows, and each Continuing Fund will follow, the standard investment restrictions and practices established under NI 81-102, except pursuant to the terms of any exemption that has been previously obtained.

11. Each Continuing Fund is expected to be a reporting issuer under the applicable securities legislation in each of the Jurisdictions and is expected to be subject to NI 81-102.

12. Each Continuing Fund will offer the same series of units as its respective Terminating Fund.

13. Neither the Filer, nor any of the Terminating Funds, are in default of securities legislation in any of the Jurisdictions.

14. Each Terminating Fund follows, and each Continuing will follow, the standard investment restrictions and practices established under NI 81-102, except pursuant to the terms of any exemption that has been previously obtained.

15. The Filer proposes to merge each Terminating Fund into the corresponding Continuing Fund (the Mergers) on a tax-deferred basis after the close of business on or about Friday, July 30, 2021 (the Merger Date) as follows:

Terminating Fund

Continuing Fund

Mackenzie Canadian Dividend Class

Mackenzie Canadian Dividend Fund II

Mackenzie Canadian Growth Balanced Class

Mackenzie Canadian Growth Balanced Fund II

Mackenzie Canadian Growth Class

Mackenzie Canadian Growth Fund II

Mackenzie Cundill Value Class

Mackenzie Cundill Value Fund II

Mackenzie Emerging Markets Class

Mackenzie Emerging Markets Fund II

Mackenzie Global Growth Class

Mackenzie Global Growth Fund

Mackenzie Global Resource Class

Mackenzie Global Resource Fund II

Mackenzie Gold Bullion Class

Mackenzie Gold Bullion Fund

Mackenzie Ivy Canadian Balanced Class

Mackenzie Ivy Canadian Balanced Fund II

Mackenzie Ivy European Class

Mackenzie Ivy European Fund

Mackenzie Ivy Foreign Equity Class

Mackenzie Ivy Foreign Equity Fund II

Mackenzie Ivy Foreign Equity Currency Neutral Class

Mackenzie Ivy Foreign Equity Currency Neutral Fund

Mackenzie Ivy Global Balanced Class

Mackenzie Ivy Global Balanced Fund II

Mackenzie Ivy International Class

Mackenzie Ivy International Fund II

Mackenzie Maximum Diversification Canada Index Class

Mackenzie Maximum Diversification Canada Index

Mackenzie Precious Metals Class

Mackenzie Precious Metals Fund

Mackenzie Strategic Income Class

Mackenzie Strategic Income Fund II

Mackenzie US Growth Class

Mackenzie US Growth Fund

Mackenzie US Small-Mid Cap Growth Class

Mackenzie US Small-Mid Cap Growth Fund

Mackenzie US Small-Mid Cap Growth Currency Neutral Class

Mackenzie US Small-Mid Cap Growth Currency Neutral Fund

Symmetry Balanced Portfolio Class

Symmetry Balanced Portfolio II

Symmetry Conservative Income Portfolio Class

Symmetry Conservative Income Portfolio II

Symmetry Conservative Portfolio Class

Symmetry Conservative Portfolio II

Symmetry Equity Portfolio Class

Symmetry Equity Portfolio

Symmetry Moderate Growth Portfolio Class

Symmetry Moderate Growth Portfolio II

16. The Mergers satisfy the pre-approval criteria set out in s. 5.6 of NI 81-102, and the Independent Review Committee of the Terminating Funds approved the Mergers at a meeting held on May 19, 2021.

17. As the Continuing Funds are new, the funds will not have their own past performance data on the date the Mergers are implemented.

Seed Capital Relief

18. The Filer does not intend to subscribe for $150,000 of units of each Continuing Fund as required by the Seed Capital Requirement because the assets of the corresponding Terminating Fund (which will become the assets of that Continuing Fund in connection with the implementation of the applicable Merger) are significantly in excess of the $150,000 Seed Capital Requirement. Accordingly, the Filer is of the view that any seed capital injected into a Continuing Fund prior to a Merger will not provide any additional benefit to unitholders.

19. On the relevant Merger Date, unitholders of a Continuing Fund will hold units of that Continuing Fund equal to the same net asset value as they did before as securityholders of the corresponding Terminating Fund, and therefore, the Continuing Funds will each have already received subscriptions in excess of $150,000.

Past Performance Relief and Continuous Disclosure Relief

20. Subject to receipt of the Seed Capital Relief, the Continuing Funds will not have any assets (other than a nominal amount to establish it) or liabilities at the time of the applicable Merger.

21. The assets of the Terminating Funds will be transferred to the equivalent Continuing Funds in connection with the implementation of the Mergers.

22. As the Filer intends to cease distribution of the Terminating Funds at the close of business on the business day prior to the Merger Date, it does not intend to renew the Terminating Funds’ simplified prospectus and annual information form after the lapse date.

23. Each Continuing Fund will be a new fund. While each Continuing Fund will have the same assets and liabilities as the corresponding Terminating Fund, as a new fund, it will not have its own Financial Data as at the Merger Date.

24. The Financial Data of the Terminating Funds are significant information which can assist investors in determining whether to purchase securities of the Continuing Funds. In the absence of the Requested Relief, investors will have no historical financial or performance information (such as past performance) on which to base such an investment decision.

25. Without the Requested Relief, the sales communications pertaining to, and the MRFPs of, the Continuing Funds cannot include Financial Data of the Terminating Funds that relate to a period prior to the applicable Merger and the Continuing Funds cannot provide performance data in its sales communications until it has distributed securities under a simplified prospectus for at least 12 months.

26. The Filer proposes to:

(a) disclose the series start dates of the Terminating Funds as the series start dates of the Continuing Funds:

(i) in the “Fund Details” table in Part B of the Simplified Prospectus; and

(ii) under the subheading “Date series started” under the heading “Quick Facts” in the Fund Facts Documents;

(b) use the performance data of the Terminating Funds to calculate the risk rating of the Continuing Funds in:

(i) the Simplified Prospectus; and

(ii) the Fund Facts Documents;

(c) use the performance data of the Terminating Funds in:

(i) the Fund Communications of the Continuing Funds; and

(ii) the “Average return”, “Year-by-year returns” and “Best and worst 3-month returns” subsections of the Fund Facts Documents for the Continuing Funds;

(d) use the MER of the Terminating Funds for the purposes of calculating the information required under the subheading “Fund Expenses Indirectly Borne by Investors” in Part B of the Simplified Prospectus for the Continuing Funds;

(e) show the investments of the Terminating Funds in the “Top 10 investments” and “Investment mix” tables in the initial Fund Facts Documents for the Continuing Funds;

(f) use the MER, TER and fund expenses of the Terminating Funds in the “Fund expenses” section of the Fund Facts Documents for the Continuing Funds;

(g) incorporate by reference into the Simplified Prospectus the most recent annual financial statements and MRFPs of the Terminating Funds for the period ended March 31, 2021, and the most recent interim financial statements and MRFP of the Terminating Funds for the period ended September 30, 2020 (collectively, the Terminating Fund Disclosure), until such Terminating Fund Disclosure is superseded by more current financial statements and MRFPs of the Continuing Funds;

(h) prepare annual MRFPs for the Continuing Funds commencing with the year ending March 31, 2022 and interim MRFPs for the Continuing Funds commencing with the period ending September 30, 2021 using the Terminating Funds’ financial highlights and past performance; and

(i) prepare comparative annual financial statements for the Continuing Funds commencing with the year ending March 31, 2022 and interim financial statements for the Continuing Funds commencing with the period ending September 30, 2021 using the Terminating Funds’ financial highlights and past performance.

27. The Filer is seeking to make the Mergers as seamless as possible for investors of the Terminating Funds. Accordingly, the Filer submits that treating a Continuing Fund as fungible with the corresponding Terminating Fund for purposes of the starting dates, investment holdings and Financial Data would be beneficial to investors and that to do otherwise would cause unnecessary confusion among investors concerning the difference between the Terminating Funds and the Continuing Funds.

28. The Filer submits that investors will not be misled if the starting dates, investment holdings and Financial Data of a Continuing Fund reflects the starting dates, investment holdings and Financial Data of the corresponding Terminating 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:

1. the Seed Capital Relief is granted;

2. the Past Performance Relief is granted, provided that:

(a) the Fund Communications include the applicable performance data of the Terminating Funds prepared in accordance with Part 15 of NI 81-102;

(b) the Simplified Prospectus:

(i) incorporates by reference the Terminating Fund Disclosure, until such Terminating Fund Disclosure is superseded by more current financial statements and MRFPs of the Continuing Fund;

(ii) states that the start date for each series of the Continuing Fund is the start date of the corresponding series of the Terminating Fund; and

(iii) discloses the Merger where the start date for each series of the Continuing Fund is stated;

(c) the Fund Facts Document of each series of the Continuing Fund:

(i) states that the “Date series started” date is the “Date series started” date of the corresponding series of the Terminating Fund;

(ii) includes the performance data of the Terminating Fund prepared in accordance with Part 15 of NI 81-102; and

(iii) discloses the Merger where the “Date series started” date is stated; and

(d) the Continuing Fund prepares its MRFPs in accordance with the Continuous Disclosure Relief; and

2. the Continuous Disclosure Relief is granted, provided that:

(a) the MRFPs for the Continuing Funds include the Financial Data of the Terminating Funds pertaining to the corresponding series of the Terminating Funds and disclose the Mergers for the relevant time periods; and

(b) the Continuing Funds prepare their simplified prospectus, fund facts documents and other Fund Communications in accordance with the Seed Capital Relief and Past Performance Relief.

“Darren McKall”

Darren McKall

Manager, Investment Funds and Structured Products

Ontario Securities Commission

Application #2021/0319

SEDAR Project # 3231642