November 30, 2023
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
EVOLVE S&P/TSX 60 ENHANCED YIELD FUND
AND
EVOLVE S&P 500® ENHANCED YIELD FUND
(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 January 3, 2023)(the Prospectus) be extended to the time limit that would apply if the lapse date of the Prospectus was April 26, 2024 (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, MI 11-102, National Instrument 81-101 Mutual Funds Prospectus Disclosure, and National Instrument 81-102 Investment Funds (NI 81-102) 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 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, is subject to NI 81-102, 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 Jurisdictions under the Prospectus. 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 date of the Prospectus is January 3, 2024 (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 each of the Funds: (i) files a pro forma prospectus at least 30 days prior to the Lapse Date; (ii) files the final prospectus no later than 10 days after the Lapse Date; and (iii) obtains a receipt for the final prospectus within 20 days of the Lapse Date.
The Filer is the investment fund manager of eight other ETFs (the April Funds) that currently distribute their securities to the public under a prospectus that has a lapse date of April 26, 2024 (the April Prospectus).
The Filer wishes to combine the Prospectus with the April Prospectus in order to reduce renewal and related costs of the Funds and the April Funds.
Offering the Funds and the April Funds under one prospectus would facilitate the distribution of the Funds and the April Funds in the Jurisdictions under the same prospectus and enable the Filer to streamline disclosure across the Filer’s fund platform. As the Funds and the April Funds are all managed by the Filer, offering them under one prospectus (as opposed to two) will allow investors to more easily compare their features.
It would be unreasonable to incur the costs and expenses associated with preparing two separate renewal prospectuses given how close in proximity the lapse dates of the Funds and the April Funds are to one another.
There have been no material changes in the affairs of the Funds since the date of the Prospectus. Accordingly, the Prospectus and current ETF facts document(s) and fund facts document(s) of the Funds represent current information regarding each of the Funds.
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 and fund facts document(s) of the 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) and fund facts document(s) of the Fund(s). The Prospectus will still be available upon request.
The Exemption Sought will not affect the accuracy of the information contained in the Prospectus 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 #2023/0576
SEDAR+ # 6050748