June 9, 2026
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
JESSELTON CAPITAL MANAGEMENT INC. (the Filer)
AND
THE TOP FUND
(as defined below)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of Jesselton Global Small Cap Equity Fund LP (the Top Fund), for a decision under the securities legislation of the Jurisdiction (the Legislation), exempting the Top Fund from:
(a) the requirement in section 2.2 of National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106) that the Top Fund file its audited annual financial statements and auditor’s report (the Annual Financial Statements) on or before the 90th day after the Top Fund’s most recently completed financial year (the Annual Filing Deadline); and
(b) the requirement in paragraph 5.1(2)(a) of NI 81-106 that the Top Fund deliver to securityholders its Annual Financial Statements by the Annual Filing Deadline (the Annual Delivery Requirement)
(together, 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 the Jurisdiction, the Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.
Representations
The decision is based on the following facts represented by the Filer:
The Filer
1The Filer is a corporation incorporated under the laws of the Province of Ontario. The Filer’s head office is located in Toronto, Ontario.
2The Filer is registered as an investment fund manager, portfolio manager, and exempt market dealer in Ontario.
3The Filer is the investment fund manager and a portfolio manager of the Top Fund.
4The Filer is not in default of securities legislation in any of the Jurisdictions.
The Top Fund
5The Top Fund is a limited partnership formed under the laws of the Province of Ontario.
6The Top Fund is a mutual fund for purposes of the securities legislation of the Jurisdictions.
7Securities of the Top Fund are offered for sale to qualified investors in one or more Jurisdictions pursuant to exemptions from the prospectus requirements under National Instrument 45-106 Prospectus Exemptions or equivalent exemptions.
8The Top Fund is not a reporting issuer in any of the Jurisdictions.
9The Top Fund has a financial year-end of December 31.
10The Top Fund is not in default of securities legislation in any of the Jurisdictions.
11The investment objective of the Top Fund is to provide strong long-term capital appreciation, while minimizing permanent impairment of capital, by investing in a diversified portfolio of primarily globally-listed small-cap equity securities. The Top Fund intends to invest in securities of Fivespan Partners Offshore, LP (the Fivespan Underlying Fund) as part of its investment strategy and may invest in other underlying funds (the Underlying Funds) as part of its investment strategy in the future.
The Underlying Funds
12The Fivespan Underlying Fund is domiciled in the Cayman Islands and is managed by a third party that is not an affiliate of the Filer. Future Underlying Funds may be established under, and governed by, the laws of Canada, the United States or other international jurisdictions and may be managed by the Filer, or an affiliate thereof, or by third parties.
13The Underlying Funds may have varying financial year-ends and may be subject to a variety of financial reporting deadlines. For example, assets of the Top Fund may be invested in Underlying Funds, such as the Fivespan Underlying Fund, the constating documents of which require or permit the audited annual financial statements to be delivered to investors within 120 days of the financial year-end of the applicable Underlying Fund.
14The Filer believes that the Top Fund investing in the Underlying Funds offers benefits not available through a direct investment in the companies, other issuers or assets held by the Underlying Funds.
15Securities of the Top Fund will be typically redeemable at various intervals, as will securities of the Underlying Funds. As the Top Fund has a long-term investment horizon, the Top Fund will be able to manage its own liquidity requirements taking into consideration the frequency at which securities of the Underlying Funds may be redeemed.
16The net asset value of the Top Fund is calculated on a monthly basis. Securityholders of the Top Fund will be provided with the net asset value of the Top Fund on a monthly basis.
17Certain holdings of the Top Fund invested in securities of the Underlying Funds may be disclosed in the Top Fund’s financial statements.
Financial Statement Filing and Delivery Requirements
18Section 2.2 and paragraph 5.1(2)(a) of NI 81-106 require the Top Fund to file and deliver its Annual Financial Statements by the Annual Filing Deadline. As the financial year-end for the Top Fund is December 31, the Annual Filing Deadline for the Annual Financial Statements would be March 31, (or March 30 in a leap year), as applicable.
19Section 2.11 of NI 81-106 provides an exemption from the filing requirements of the Annual Financial Statements if, among other things, the Top Fund delivers such statements in accordance with Part 5 of NI 81-106 by the Annual Filing Deadline. Subject to the Exemption Sought being granted, the Filer intends to rely on this exemption to not file its Annual Financial Statements.
20The Top Fund needs to receive the audited annual financial statements from the applicable Underlying Fund in order to finalize its Annual Financial Statements.
21The Top Fund will not be able to obtain the audited annual financial statements of each applicable Underlying Fund sooner than other securityholders of the applicable Underlying Fund receive the audited annual financial statements of the applicable Underlying Fund.
22The auditor of the Top Fund has advised the Filer that it will be unable to complete the audit of the Top Fund’s annual financial statements until the audited annual financial statements of the applicable Underlying Funds are completed and available to the Top Fund.
23Absent the Exemption Sought, the Top Fund will be unable to meet each Annual Filing Deadline and Annual Delivery Requirement. The Filer expects this timing delay in the completion of the Top Fund’s Annual Financial Statements to occur every year for the foreseeable future.
24The Top Fund therefore seeks an extension of the Annual Filing Deadline and the Annual Delivery Requirement to permit delivery within 125 days of the Top Fund’s most recently completed financial year-end, to enable the Top Fund’s auditor to first receive the audited annual financial statements of each applicable Underlying Fund so as to be able to prepare the Top Fund’s Annual Financial Statements.
25Investors in the Top Fund will be notified that (i) the Annual Financial Statements for the Top Fund will be delivered to each investor within 125 days of the Top Fund’s financial year-end, and (ii) the Top Fund has received, and intends to rely on, relief from the Annual Filing Deadline and Annual Delivery Requirement.
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 to the Top Fund provided that:
(a) The Top Fund has a financial year ending December 31;
(b) No less than 25% of the total assets of the Top Fund as at its financial year-end of December 31 are invested in Underlying Funds that have financial reporting periods that end on December 31 of each year and whose governing law or constating documents require or permit their annual financial statements to be made available within 120 days of their financial year-end;
(c) The Top Fund notifies its securityholders that:
(i) the Annual Financial Statements for the Top Fund will be delivered on or before the 125th day after the Top Fund’s most recently completed financial year; and
(ii) the Top Fund has received and intends to rely on relief from the filing and delivery requirements under section 2.2 and paragraph 5.1(2)(a) of NI 81-106;
(d) The Top Fund is not a reporting issuer in any of the Jurisdictions and the Filer has the necessary registrations to carry out its operations in each of the Jurisdictions in which it operates;
(e) The conditions in section 2.11 of NI 81-106 will be met, except for subsection 2.11(b), and the Annual Financial Statements will be delivered to securityholders of the Top Fund in accordance with Part 5 of NI 81-106 on or before the 125th day after the Top Fund’s most recently completed financial year; and
(f) This decision terminates within one year of the coming into force of any amendment to NI 81-106 or other rule that modifies how the Annual Filing Deadline or the Annual Delivery Requirement applies in connection with investment funds that are not reporting issuers.
“Darren McKall”
Darren McKall, Associate Vice President
Investment Management Division
Ontario Securities Commission
Application No.: 2026/258
SEDAR+ File No.: 06446565