November 9, 2022
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
EVERMORE CAPITAL INC.
(the Filer)
AND
IN THE MATTER OF
THE FUNDS LISTED IN SCHEDULE A
(the Funds)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Funds for a decision under the securities legislation of the Jurisdiction (the Legislation) that the time limit for the renewal of the long form prospectus of the Funds dated February 11, 2022 (the Prospectus) be extended to those time limits that would apply if the lapse date of the Prospectus were May 23, 2023 (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(i) the Ontario Securities Commission is the principal regulator for this application; and
(ii) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the other provinces and territories of Canada (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.
Representations
This decision is based on the following facts represented by the Filer:
The Filer is a corporation incorporated under the laws of Canada. The Filer’s head office is located in Toronto, Ontario.
The Filer is registered as an investment fund manager in Ontario, Québec and Newfoundland and Labrador and as a portfolio manager in Ontario. The Filer is the investment fund manager of the Funds.
Each of the Funds is an exchange-traded mutual fund (ETF) established under the laws of Ontario, and is a reporting issuer as defined in the securities legislation of each of the Jurisdictions.
Neither the Filer nor any of the Funds are in default of securities legislation in any of the Jurisdictions.
The Funds currently distribute securities in the Jurisdictions under the Prospectus. Securities of each of the Funds trade on the Neo Exchange Inc.
Pursuant to subsection 62(1) of the Securities Act (Ontario) (the Act), the lapse date of the Prospectus is February 11, 2023 (the Lapse Date). Accordingly, under subsection 62(2) of the Act, the distribution of securities of the Funds would have to cease on the Lapse Date unless: (i) the Funds file a pro forma prospectus at least 30 days prior to the Lapse Date; (ii) the final prospectus is filed no later than 10 days after the Lapse Date; and (iii) a receipt for the final prospectus is obtained within 20 days of the Lapse Date.
Pursuant to subsections 10.1(1), 10.1(1.1) and 10.1(2) of National Instrument 41-101 General Prospectus Requirements (NI 41-101), the Funds must file a written consent provided by their auditor no later than February 21, 2023, 10 days after the Lapse Date.
The fiscal year-end of each Fund is December 31 and, pursuant to section 2.2 of National Instrument 81-106 Investment Fund Continuous Disclosure, the annual financial statements and auditor’s report are required to be filed on or before the 90th day after each Fund’s most recently completed financial year, which for each Fund will be its financial year-end of December 31, 2022 (the 2022 Fiscal Year-End).
Pursuant to section 4.3(1) of NI 41-101 and given the 2022 Fiscal Year-End, the Funds’ auditor will be required to review the Funds' unaudited interim financial statements for the period ended June 30, 2022.
The Filer must file annual financial statements for the Funds for the 2022 Fiscal Year-End by no later than March 31, 2023, which date is after the Lapse Date.
As audited financial statements will not be ready by the Lapse Date, the Funds will need to incorporate by reference unaudited interim financial information (as at June 30, 2022) into the final long form prospectus for the Funds. In order to incorporate by reference the interim unaudited financial statements into the final long form prospectus for the Funds, those interim unaudited financial statements must be reviewed by the Funds' auditor in accordance with the relevant standards set out in the Handbook of the Canadian Institute of Chartered Accountants for a review of financial statements.
Given that the audited financial statements of the Funds will be available no later than March 31, 2023, which is only a few weeks following the filing of the final long form prospectus for the Funds pursuant to the Lapse Date, this review of the interim unaudited financial statements will incur time and expenses which will only be relevant for a short period of time.
Extending the Funds’ Lapse Date to May 23, 2023 will provide the time necessary for the Funds’ auditor to complete the audit of the Funds' financial statements for the 2022 Fiscal Year-End and provide its written consent as required by NI 41-101, and enable the Filer to renew then Prospectus and ETF facts document in respect of the Funds on a timeline that allows the inclusion of the most current audited financial information each year. In doing so, it will be more efficient and remove unnecessary financial burden on the Funds which is indirectly borne by the Funds' securityholders.
There have been no material changes in the affairs of each Fund since the date of the Prospectus. Accordingly, the Prospectus and current ETF facts document of each Fund represent current information regarding such Fund.
Given the disclosure obligations of the Funds, should any material change occur, the Prospectus and current ETF facts