Fidelity Investments Canada ULC (Re), 2024 CanLII 57869

June 25, 2024

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 FIDELITY INVESTMENTS CANADA ULC (the Filer)

AND

IN THE MATTER OF FIDELITY U.S. DIVIDEND FOR RISING RATES CURRENCY NEUTRAL ETF, FIDELITY U.S. LOW VOLATILITY CURRENCY NEUTRAL ETF, FIDELITY U.S. MOMENTUM CURRENCY NEUTRAL ETF AND FIDELITY TOTAL METAVERSE ETF (the Terminating ETFs)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Terminating ETFs for a decision under the securities legislation of the Jurisdiction (the Legislation) that the time limits for the renewal of the Current ETF Prospectus (defined below) of the Terminating ETFs be extended to September 6, 2024 (the “ETF Termination Date”) (the Exemption Sought).

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 section 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:

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

2. The Filer is registered as follows: (i) as a portfolio manager, mutual fund dealer and exempt market dealer in each of the Canadian Jurisdictions; (ii) as an investment fund manager in Ontario, Quebec, and Newfoundland and Labrador; and (iii) as a commodity trading manager in Ontario under the Commodity Futures Act (Ontario).

3. The Filer is the trustee and investment fund manager of the Terminating ETFs.

4. Each Terminating ETF is an exchange-traded fund governed by a declaration of trust under the laws of the Province of Ontario. Each Terminating ETF is a reporting issuer under the Legislation of each of the Canadian Jurisdictions.

5. Neither the Filer nor the Terminating ETFs are in default of securities legislation in any of the Canadian Jurisdictions.

6. Securities of the Terminating ETFs are listed on the Toronto Stock Exchange and Cboe Canada Inc., as applicable, and are currently qualified for sales in the Canadian Jurisdictions under a long form prospectus dated August 25, 2024, as amended (the Current ETF Prospectus).

7. Each Terminating ETF will be terminated and delisted from the TSX and Cboe CA, as applicable, after the close of business on or about September 6, 2024 (the “ETF Termination Date”). A press release and prospectus amendment announcing the termination and delisting of the Terminating ETFs were filed with the Canadian securities regulatory authorities on SEDAR+ on May 15, 2024 and May 17, 2024, respectively.

8. Pursuant to subsection 62(1) of the Securities Act (Ontario) (the Act), the lapse date of the Current ETF Prospectus is August 25, 2024 (the Current Lapse Date). Accordingly, under subsection 62(2) of the Act, the distribution of securities of the Terminating ETFs would have to cease on the Current Lapse Date unless: (i) the Terminating ETFs file a pro forma long form prospectus at least 30 days prior to the Current Lapse Date; (ii) the final long form prospectus is filed no later than 10 days after the Current Lapse Date; and (iii) a receipt for the final long form prospectus is obtained within 20 days after the Current Lapse Date.

9. Since the termination of the Terminating ETFs will not be effected until the ETF Termination Date, the Filer is requesting the Lapse Date Relief to extend the Current Lapse Date for the Terminating ETFs to the ETF Termination Date. The Filer does not intend to extend the Current Lapse Date for the other exchange-traded funds offered under the Current ETF Prospectus and will instead renew those funds in accordance with the timing required by subsection 62(2) of the Act.

10. The Exemption Sought will allow the Filer to avoid incurring unnecessary costs and any confusion that may result from renewing the Terminating ETFs under the Current ETF Prospectus and later terminating and delisting the Terminating ETFs within 12 days of the Current ETF Prospectus.

11. There have been no material changes in the affairs of the Terminating ETFs since the filing of the Current ETF Prospectus. Accordingly, the Current ETF Prospectus and current ETF facts documents of the Terminating ETFs represent current information regarding the Terminating ETFs.

12. Given the disclosure obligations of the Terminating ETFs, should a material change in the affairs of the Terminating ETFs occur, the Current ETF Prospectus and current ETF facts documents of the Terminating ETFs will be amended as required under the Legislation.

13. The Exemption Sought will not affect the accuracy of the information contained in the Current ETF Prospectus or the current ETF facts documents of the Terminating ETFs and therefore will 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 Management Division ONTARIO SECURITIES COMMISSION

Application# 2024/0344 SEDAR Project# 6143206