Guardian Capital LP (Re), 2023 CanLII 79423

August 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

GUARDIAN CAPITAL LP

(the Filer)

AND

IN THE MATTER OF

GUARDIAN DIRECTED EQUITY PATH PORTFOLIO

GUARDIAN DIRECTED PREMIUM YIELD PORTFOLIO

GUARDIAN CANADIAN BOND FUND

(the Continuing Funds)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of the Continuing Funds, each being a mutual fund that offers Mutual Fund Securities (as defined below) and intends to offer ETF Securities (as defined below), for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that grants exemptive relief to the Filer and each Continuing Fund as set forth below (collectively, the Exemption Sought):

(a) an exemption from section 2.1 of National Instrument 81-101 Mutual Fund Prospectus Disclosure (NI 81-101) for the purpose of the following exemptions sought from Form 81-101F1 Contents of Simplified Prospectus (Form 81-101F1):

(i) Item 8(2) of Part B of Form 81-101F1 to permit each exchange-traded series (ETF Series) of each Continuing Fund to disclose the series start date of the corresponding series of the corresponding Terminating ETF (as defined below) as its series start date in the simplified prospectus of the Continuing Funds; and

(ii) Item 10(b) of Part B of Form 81-101F1 to permit each ETF Series of each Continuing Fund to use the corresponding series of the corresponding Terminating ETF’s past performance data to calculate that ETF Series’ investment risk rating when complying with Item 4 of Appendix F Investment Risk Classification Methodology (Appendix F) to National Instrument 81-102 Investment Funds (NI 81-102);

(b) an exemption from sections 3.1(2) and 3B.2 of National Instrument 41-101 General Prospectus Requirements (NI 41-101) for the purposes of the following exemptions sought from Form 41-101F2 Information Required in an Investment Fund Prospectus (Form 41-101F2) and Form 41-101F4 Information Required in an ETF Facts Document (Form 41-101F4):

(i) Item 17.2 of Form 41-101F2 to permit each ETF Series of each Continuing Fund to disclose the trading price and volume information required thereunder of the corresponding series of the corresponding Terminating ETF as its trading price and volume information;

(ii) Item 2 of Part I of Form 41-101F4 to permit each ETF Series of each Continuing Fund to disclose the start date, management expense ratio (MER), average daily volume, number of days traded, market price, net asset value and average bid-ask spread of the corresponding series of the corresponding Terminating ETF as its information in the applicable ETF Facts (as defined below);

(iii) Item 4 of Part I of Form 41-101F4 to permit each ETF Series of each Continuing Fund to use the performance history of the corresponding series of the corresponding Terminating ETF to calculate and disclose its investment risk rating in the applicable ETF Facts;

(iv) Item 5 of Part I of Form 41-101F4 to permit each ETF Series of each Continuing Fund to use the past performance data of the corresponding series of the corresponding Terminating ETF in the “Average return”, “Year-by-year returns” and “Best and worst 3-month returns” sections in the applicable ETF Facts; and

(v) Item 1.3 of Part II of Form 41-101F4 to permit each ETF Series of each Continuing Fund to use the MER, the trading expense ratio and the expenses of the corresponding series of the corresponding Terminating ETF in the “ETF expenses” section of the applicable ETF Facts;

(c) an exemption from 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(2)(a.1), 15.8(3)(a) and 15.8(3)(a.1) of NI 81-102 to permit each ETF Series of each Continuing Fund to use the performance data of the corresponding series of the corresponding Terminating ETF in sales communications and reports to securityholders (collectively, Fund Communications) of the Continuing Fund;

(d) an exemption from section 15.1.1 of NI 81-102 and Items 2 and 4 of Appendix F to NI 81-102 to permit each ETF Series of each Continuing Fund to calculate its investment risk level using the performance history of the corresponding series of the corresponding Terminating ETF (together with paragraphs (a), (b) and (c) above, the Past Performance Relief);

(e) an exemption from sections 2.1 and 2.3 of National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106) to permit each Continuing Fund to file comparative annual and interim financial statements that include, in respect of each ETF Series of the Continuing Fund, information derived from the financial statements of the corresponding Terminating ETF;

(f) an exemption from section 4.4 of NI 81-106 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), in respect of each ETF Series of the Continuing Fund, the performance data and information derived from the financial statements and other financial information (collectively, the Financial Data) of the corresponding series of the corresponding Terminating ETF, 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 ETF Series of each Continuing Fund to use the financial highlights of the corresponding series of the corresponding Terminating ETF 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 ETF Series of each Continuing Fund to use the past performance data of the corresponding series of the corresponding Terminating ETF in its Form 81-106F1; and

(iii) Items 3(1) and 4 of Part C of Form 81-106F1 to permit each ETF Series of each Continuing Fund to use the financial highlights and past performance data of the corresponding series of the corresponding Terminating ETF in its Form 81-106F1 (together with paragraph (e) above, the Continuous Disclosure Relief).

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; and

(b) 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 all of the provinces and territories of Canada other than Ontario (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.

Continuing Funds means Guardian Directed Equity Path Portfolio, Guardian Directed Premium Yield Portfolio and Guardian Canadian Bond Fund.

ETF Facts means a prescribed summary disclosure document required pursuant to NI 41-101, in the form prescribed by Form 41-101F4, in respect of one or more classes or series of ETF Securities being distributed under a prospectus.

ETF Securities means securities of an exchange-traded class or series of a Fund that are listed or will be listed on the TSX or another Marketplace, including the ETF Series, and that will be distributed pursuant to a simplified prospectus prepared in accordance with NI 81-101 and Form 81-101F1.

Form 81-101F3 means Form 81-101F3 Contents of Fund Facts Document.

Fund Facts means a prescribed summary disclosure document required pursuant to NI 81-101 in the form prescribed by Form NI 81-101F3, in respect of one or more series of Mutual Fund Securities being distributed under a simplified prospectus.

Funds means the Continuing Funds and the Terminating ETFs.

Marketplace means a “marketplace” as defined in National Instrument 21-101 Marketplace Operation that is located in Canada.

Mutual Fund Securities means securities of a non-exchange-traded class or series of a Fund that are or will be distributed pursuant to a simplified prospectus prepared in accordance with NI 81-101 and Form 81-101F1.

Securityholders means beneficial or registered holders of ETF Securities or Mutual Fund Securities, as applicable.

Terminating ETFs means Guardian Directed Equity Path ETF, Guardian Directed Premium Yield ETF and Guardian Canadian Bond ETF.

TSX means the Toronto Stock Exchange.

Representations

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

The Filer

1. The Filer is an Ontario limited partnership, which is wholly-owned by Guardian Capital Group Limited. The general partner of the Filer is Guardian Capital Inc., an Ontario corporation wholly-owned by Guardian Capital Group Limited, with its head office located in Toronto, Ontario.

2. The Filer is registered as: (a) a portfolio manager in all of the provinces of Canada; (b) an exempt market dealer in all of the provinces of Canada; (c) an investment fund manager in Ontario, Québec and Newfoundland and Labrador; (d) commodity trading counsel in Ontario; and (e) a commodity trading manager in Ontario.

3. The Filer is the investment fund manager and portfolio manager of the Funds. The Filer has applied, or will apply, to list the ETF Securities of the Continuing Funds on the TSX or another Marketplace.

4. The Filer is not in default of securities legislation in any of the Jurisdictions.

The Funds

5. Each Fund is a mutual fund structured as a trust that is organized and governed by the laws of the Province of Ontario. Each Fund is a reporting issuer in the Jurisdiction(s) in which its securities are distributed.

6. Subject to any exemptions that have been, or may be, granted by the applicable securities regulatory authorities, each Fund is an open-ended mutual fund subject to the provisions of NI 81-102. Securityholders will have the right to vote at a meeting of Securityholders in respect of matters prescribed by NI 81-102.

7. Securities of each Terminating ETF are listed on the TSX and are qualified for sale in each of the Jurisdictions under a long form prospectus and ETF Facts dated August 3, 2023, each of which has been prepared in accordance with NI 41-101.

8. Securities of each Continuing Fund are qualified for sale under a simplified prospectus and Fund Facts dated April 27, 2023, each of which has been prepared in accordance with NI 81-101.

9. The investment objectives of each Terminating ETF are substantially similar to those of its corresponding Continuing Fund.

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

11. On or about October 5, 2023, the Filer expects to file an amendment to the simplified prospectus dated April 27, 2023 of the Continuing Funds (the Amended Prospectus). Pursuant to the Amended Prospectus, the Filer will qualify for distribution ETF Securities of each Continuing Fund, resulting in the Continuing Funds offering both Mutual Fund Securities and ETF Securities. At this time, the Filer will also file ETF Facts in the form prescribed by Form 41-101F4 for each series of ETF Securities of the Continuing Funds.

12. The Filer will apply to list the ETF Securities of the Continuing Funds on the TSX or another Marketplace. Listing is subject to the approval of the TSX or other Marketplace, in accordance with its applicable listing requirements.

13. None of the Funds are in default of securities legislation in any of the Jurisdictions.

The Mergers

14. The Filer is streamlining and modernizing its product lineup and amending the structure of the Continuing Funds so that the Continuing Funds will have a “dual class” structure. The dual class structure means that each Continuing Fund will offer both ETF Securities and Mutual Fund Securities.

15. As a part of its modernization efforts, the Filer proposes to merge (each, a Merger and collectively, the Mergers) each Terminating ETF into a corresponding Continuing Fund on or about November 3, 2023 (the Merger Date) as set forth below.

Terminating ETF

Continuing Fund

Guardian Directed Equity Path ETF

Guardian Directed Equity Path Portfolio

Guardian Directed Premium Yield ETF

Guardian Directed Premium Yield Portfolio

Guardian Canadian Bond ETF

Guardian Canadian Bond Fund

16. Until the Mergers, the securities of each Terminating ETF will be in continuous distribution and listed on the TSX. Upon completion of the Mergers, the ETF Series of each Continuing Fund will be listed on the TSX under the ticker symbol of the corresponding series of the corresponding Terminating ETF and will have a different CUSIP number than the corresponding series of the corresponding Terminating ETF. The Filer has confirmed this approach with the TSX and CDS.

17. The ETF Series of each Continuing Fund are expected to be listed for trading on or about November 6, 2023.

18. Each Merger will be carried out pursuant to the “pre-approved” merger conditions set out in section 5.6 of NI 81-102.

19. Each Merger will be completed without the approval of securityholders of the Terminating ETFs in reliance on subsection 5.3(2)(a) of NI 81-102.

20. The independent review committee of the Terminating ETFs has reviewed the potential conflict of interest matters related to the Mergers and has approved each Merger after determining that each Merger, if implemented, would achieve a fair and reasonable result for the applicable Terminating ETF, as contemplated by subsection 5.3(2)(a) of NI 81-102.

21. A press release describing the Mergers was issued and filed via SEDAR+ on August 3, 2023 and a material change report for the Terminating ETFs was filed via SEDAR+ on August 3, 2023.

22. Notice of the Mergers will be sent to securityholders in the Terminating ETFs in accordance with subsection 5.3(2)(a)(v) of NI 81-102.

23. The Filer does not consider the Mergers to constitute a “material change” for any of the Continuing Funds and accordingly, there is no intention to convene a meeting of unitholders of the Continuing Funds to approve the Mergers pursuant to paragraph 5.1(1)(g) of NI 81-102.

24. Each Terminating ETF will be terminated on or about the Merger Date and will be wound up as soon as reasonably possible thereafter.

25. The ETF Series of the Continuing Funds are being created for the purpose of the Mergers, and therefore:

(a) upon completion of the Mergers, the unitholders of each Terminating ETF will have rights as investors in ETF Series of the corresponding Continuing Fund that are substantially similar in all material aspects to the rights they had as investors in the applicable Terminating ETF prior to the Mergers;

(b) the portfolio manager and sub-adviser of each Continuing Fund, where applicable, is the same as the corresponding Terminating ETF;

(c) each Continuing Fund has valuation procedures that are identical to the valuation procedures of each corresponding Terminating ETF; and

(d) the management fee attached to each ETF Series of each Continuing Fund will be the same as the management fee for the corresponding series of the corresponding Terminating ETF and the ETF Series of each Continuing Fund will pay the same operating expenses as each corresponding Terminating ETF.

26. The Filer considers that each Continuing Fund is and will be managed in a manner which is substantially similar in all material respects to the manner in which the corresponding Terminating ETF has been managed.

Past Performance Relief and Continuous Disclosure Relief

27. The Filer is seeking to make the Mergers as seamless as possible for investors in each Terminating ETF. The past performance data and financial information of each Terminating ETF is significant information which can assist investors in determining whether to purchase and/or to continue to hold securities of the ETF Series of the corresponding Continuing Fund. The ETF Series of each Continuing Fund will be created upon filing of the Amended Prospectus. The Filer will not commence distributing these ETF Securities until the completion of the Mergers. As a result, as at the effective date of the Mergers, in the absence of the Exemption Sought, the ETF Series of the Continuing Funds will not have their own past performance or series specific financial data on which investors can base an investment decision.

28. The Filer submits that treating each ETF Series of each Continuing Fund as fungible with the corresponding series of the corresponding Terminating ETF for purposes of the past performance data and financial information of the Continuing Funds would be beneficial to investors and that to do otherwise would cause unnecessary confusion among investors concerning the difference between each series of each Terminating ETF and each corresponding ETF Series of the corresponding Continuing Fund.

29. The Exemption Sought will allow each Continuing Fund to disclose information to investors in each ETF Series that is based on the same type of information that was applicable to the corresponding series of the corresponding Terminating ETF, that is:

(a) The ETF Facts for each ETF Series will contain information that is based on the information disclosed in the ETF Facts for the corresponding series of the corresponding Terminating ETF, until such time as the Continuing Fund has information regarding the ETF Series based on its own operations for the applicable periods.

(b) The simplified prospectus for the Continuing Funds will contain information about each ETF Series of each Continuing Fund that is based on the information disclosed in the prospectus for the corresponding series of the corresponding Terminating ETF until such time as each Continuing Fund has information regarding the ETF Series based on its own operations for the applicable periods.

(c) The risk level for each ETF Series of each Continuing Fund will be based on, and calculated in accordance with, the performance of the corresponding series of the corresponding Terminating ETF, until such time as the ETF Series has the requisite 10-years of performance history. In this regard, the Filer considers that it is appropriate that each ETF Series have its own investment risk level, as contemplated in Item 3 of Appendix F of NI 81-102.

(d) The MRFPs and financial statements for each Continuing Fund will contain information about each ETF Series of the Continuing Fund that is based on the information disclosed in the past MRFPs and financial statements, as applicable, for the corresponding series of the corresponding Terminating ETF until such time as the Continuing Fund has information regarding the ETF Series based on its own operations for the applicable periods.

(e) The Fund Communications for each ETF Series of each Continuing Fund will include the applicable past performance data of the corresponding series of the corresponding Terminating ETF prepared in accordance with Part 15 of NI 81-102.

30. The Filer will include disclosure about the Mergers in each of the documents listed in paragraph 29, to the extent the Filer considers appropriate for the type of document.

31. The Filer submits that investors will not be misled if each of the documents listed in paragraph 29 contains the applicable information about the applicable Terminating ETF and rather will have more complete and accurate information about whether to invest or to continue to hold investments in the ETF Series of the Continuing Funds.

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 Past Performance Relief is granted, provided that:

(a) the Fund Communications of the ETF Series of each Continuing Fund include the applicable past performance data of the corresponding series of the corresponding Terminating ETF prepared in accordance with Part 15 of NI 81-102

(b) the simplified prospectus of the Continuing Funds:

(i) includes information about the ETF Series of each Continuing Fund that is based on the information disclosed in the prospectus for the corresponding Terminating ETF, until such time as the Continuing Fund has information regarding the ETF Series based on its own operations for the applicable periods;

(ii) discloses that the start date for each ETF Series of each Continuing Fund is the start date of the corresponding series of the corresponding Terminating ETF where the start date of the ETF Series is stated; and

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

(c) the ETF Facts for each ETF Series of each Continuing Fund:

(i) includes information that is based on the information disclosed in the ETF Facts for the corresponding series of each Terminating ETF, until such time as the Continuing Fund has information regarding the ETF Series based on its own operations for the applicable periods prepared in accordance with Part 15 of NI 81-102;

(ii) states that the “Date series started” date is the “Date series started” date of the corresponding Terminating ETF; and

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

(d) each 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 and financial statements for the Continuing Funds include the Financial Data of the Terminating ETFs pertaining to the corresponding Terminating ETFs and disclose the Mergers for the relevant time periods; and

(b) the Continuing Funds prepare their simplified prospectus, ETF Facts and other Fund Communications in accordance with the Past Performance Relief.

“Darren McKall”

Darren McKall

Manager, Investment Funds & Structured Products

Ontario Securities Commission

Application # 2023/0364

SEDAR+ #6008886