November 16, 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
EVOLVE FUNDS GROUP INC.
(the Filer)
AND
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 respective time limits for the renewal of the long form prospectus of BANK (as defined in Schedule A) (dated January 26, 2022) (the BANK Prospectus), EBNK (as defined in Schedule A) (dated January 5, 2022) (the EBNK Prospectus) and TECE (as defined in Schedule A) (dated February 17, 2022) (the TECE Prospectus and, together with the BANK Prospectus and the EBNK Prospectus, the Prospectuses) be extended to those time limits that would apply if the lapse dates of the Prospectuses were April 26, 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 Canadian 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 (i) a portfolio manager in Ontario, (ii) a commodity trading manager in Ontario and (iii) an investment fund manager in each of Ontario, Québec and Newfoundland and Labrador.
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 Canadian Jurisdictions.
Neither the Filer nor any of the Funds are in default of securities legislation in any of the Canadian Jurisdictions.
The Funds currently distribute securities in the Canadian Jurisdictions under the Prospectuses. Securities of each of the Funds trade on the Toronto Stock Exchange.
Pursuant to subsection 62(1) of the Securities Act (Ontario) (the Act), the lapse dates of the Prospectuses are January 26, 2023 (for the BANK Prospectus), January 5, 2023 (for the EBNK Prospectus) and February 17, 2023 (for the TECE Prospectus) (each a Lapse Date and collectively, the Lapse Dates). Accordingly, under subsection 62(2) of the Act, the distribution of securities of the Funds would have to cease on the applicable Lapse Date unless: (i) each Fund files a pro forma prospectus at least 30 days prior to the applicable Lapse Date; (ii) the final prospectus is filed no later than 10 days after the applicable Lapse Date; and (iii) a receipt for the final prospectus is obtained within 20 days of the applicable Lapse Date.
The Filer is the investment fund manager of the six April Funds (as defined in Schedule B) that currently distribute their securities to the public under a prospectus that has a lapse date of April 26, 2023 (the April Prospectus).
The Filer wishes to combine the BANK Prospectus, the EBNK Prospectus and the TECE Prospectus with the April Prospectus in order to reduce renewal and related costs of BANK, EBNK and TECE and the April Funds.
Offering BANK, EBNK, TECE and the April Funds under one prospectus would facilitate the distribution of each of BANK, EBNK and TECE in the Canadian Jurisdictions under the same prospectus and enable the Filer to streamline disclosure across the Filer’s fund platform. As BANK, EBNK, TECE and the April Funds are all managed by the Filer, offering them under one prospectus (as opposed to four) will allow investors to more easily compare their features.
It would be unreasonable to incur the costs and expenses associated with preparing four separate renewal prospectuses given how close in proximity the Lapse Dates are to one another.
There have been no material changes in the affairs of each Fund since the date of the applicable 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 a material change in the affairs of any of the Funds occur, the Prospectus and current ETF facts document(s) of the applicable Fund(s) will be amended as required under the Legislation.
New investors in the Funds will receive the most recently filed ETF facts document(s) of the applicable Fund(s). The Prospectuses will still be available upon request.
The Exemption Sought will not affect the accuracy of the information contained in the Prospectuses and will therefore not be prejudicial to the public interest.
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 Exemption Sought is granted.
“Darren McKall”
Darren McKall
Manager, Investment Funds and Structured Products
Ontario Securities Commission
Application # 2022/0490
Schedule “A”
BANK
Evolve Canadian Banks and Lifecos Enhanced Yield Index Fund (“BANK”)
EBNK
Evolve European Banks Enhanced Yield ETF (“EBNK”)
TECE
Evolve Enhanced FANGMA Index ETF (“TECE”)
Schedule “B”
April Funds
Evolve Global Materials & Mining Enhanced Yield Index ETF
Evolve E-Gaming Index ETF
Evolve Innovation Index Fund
Evolve Active Core Fixed Income Fund
Evolve Cloud Computing Index Fund
Evolve FANGMA Index ETF
(each an “April Fund” and, collectively, the “April Funds”)