Fidelity Investments Canada ULC and Fidelity Canadian Private Real Estate Trust (Re), 2025 CanLII 67161

IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO

July 4, 2025

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 (Fidelity) AND FIDELITY CANADIAN PRIVATE REAL ESTATE TRUST (the Fund)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from Fidelity and the Fund (together, the Filers) for a decision under the securities legislation of the Jurisdiction (Legislation) to exempt the Filers from filing a Form 45-106F1 Report of Exempt Distribution (Form 45-106F1) as required under subsection 6.1(2) of National Instrument 45-106 Prospectus Exemptions (NI 45-106) (the Requested 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 Filers have 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 Jurisdictions).

Interpretation

Terms defined in MI 11-102 and National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.

Representations

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

Fidelity

1. Fidelity is a corporation amalgamated under the laws of the Province of Alberta, with its head office located in Toronto, Ontario.

2. Fidelity is registered as a mutual fund dealer, exempt market dealer and portfolio manager in each of the Jurisdictions, an investment fund manager in Ontario, Québec and Newfoundland and Labrador, and a commodity trading manager in Ontario.

3. Fidelity is not and has no intention of becoming a reporting issuer in any of the Jurisdictions. Fidelity is not in default of securities legislation in any of the Jurisdictions.

4. Fidelity acts and will act as an exempt market dealer in connection with the distribution of the units of the Fund.

5. Fidelity is the manager and trustee of the Fund.

The Fund

6. The Fund was established as an open-end trust under the laws of the Province of Ontario pursuant to a declaration of trust dated June 30, 2023, as amended and restated February 28, 2024 and June 12, 2024, and as may be further amended from time to time.

7. The Fund is not an investment fund and substantially all of the assets of the Fund are invested in limited partnership units of a partnership.

8. The Fund is not and has no intention of becoming a reporting issuer in any of the Jurisdictions and is not in default of securities legislation in any of the Jurisdictions.

9. The Fund currently offers Series O units on a monthly basis to investors by way of private placement pursuant to (i) the accredited investor exemption from the prospectus requirements under section 2.3 of NI 45-106 or section 73.3 of the Securities Act (Ontario) (the Securities Act) and (ii) the employee, executive officer, director and consultant exemption from the prospectus requirements under section 2.24 of NI 45-106. Units of the Fund are only sold to investment funds managed by Fidelity or its affiliates, and employees, directors or officers of Fidelity and its affiliates.

Distribution of Units

10. For operational reasons only, an investor that purchases Series O units initially receives series OH units of the Fund based on one series OH unit per $10.00 of subscription price for the Series O units. These series OH units are automatically switched into Series O units once the Series O net asset value (NAV) per unit is calculated, based on such Series O NAV per unit and the $10.00 value of each series OH unit (the Automatic Switch). This Automatic Switch is effective as of the first business day of the calendar month following the investor’s request to purchase Series O units (each, the applicable Subscription Time).

11. The Automatic Switch of series OH units to Series O units, as described above, is the only right that is attached to the series OH units. For greater certainty, series OH units do not represent an interest in the capital of the Fund and are only given to an investor to facilitate the issuance of the Series O units. A series OH unit does not have any economic interest in the Fund and is not entitled to any interest or share in the Fund, in any distribution from the Fund, or in any net assets of the Fund in the event of the termination or winding-up of the Fund.

12. The Series O NAV per unit is calculated at some point during the month following the applicable Subscription Time, but not within the 10-day deadline prescribed under subsection 6.1(2). It is expected that the Series O NAV per unit as of the last business day of each month will only be determined sometime between the 15th and 20th day of the following month. As a result, the applicable Series O NAV per unit that is required to calculate the number of Series O units issued to each subscriber is not known during the 10-day deadline that is prescribed under subsection 6.1(2) of NI 45-106.

13. The Filers currently file an initial Form 45-106F1 reflecting a distribution of “subscription receipts” within ten days of an investor receiving Series OH units. The Filers then amend the Form 45-106F1 once the Automatic Switch occurs at the Series O NAV per unit following the calculation of the Series O NAV per unit.

14. Preparing and then amending the Form 45-106F1 for each issuance of securities has resulted in administrative and operational burden for the Filers. This form of reporting is also unnecessarily complex and may be confusing to readers of a Form 45-106F1. Furthermore, this form of reporting may not be useful since the units of the Fund are only sold to investors that are part of an investment fund managed by Fidelity or its affiliates, or an employee, director or officer of Fidelity or its affiliates.

Requested Relief

15. The Filers have applied for the Requested Relief so that they are exempted from the requirement to file a Form 45-106F1 within 10 days of the distribution of the Series OH units. The Filer will continue to file a Form 45-106F1 within 10 days of the Automatic Switch.

16. The Requested Relief would ease the administrative and operational burden of preparing an initial Form 45-106F1 reflecting the delivery of Series OH units and subsequently amending that Form 45-106F1 to reflect the issuance of Series O units at the correct Series O NAV per unit.

17. The Requested Relief would also allow the Filers to prepare and file a single Form 45-106F1 in accordance with Part 6 of NI 45-106 and would provide interested parties with a clearer picture of Series O unit issuances.

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 is that the Requested Relief is granted provided that the Filers prepare and file a completed Form 45-106F1 within 10 days of the Automatic Switch as required by subsection 6.1(2) and in accordance with Part 6 of NI 45-106.

“Lina Creta”

Lina Creta

Associate Vice President, Corporate Finance

Ontario Securities Commission

OSC File #: 2025/0099