Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Consolidated Jurisdictions -- Relief granted from the requirement in s.3.2(2), NI 81-101 to deliver a fund facts document to investors for purchases of mutual fund securities of certain series under automatic switching programs -- Automatic switches between introductory retail series and series offering a lower management fee, based on the size of a fund investment -- Investment fund manager initiating automatic switches in and out of high net worth series on behalf of investors when their investments satisfy or cease to meet eligibility requirements of the high net worth series -- Automatic switches between series of a fund triggering a distribution of securities which requires delivery of a fund facts document -- Relief granted from the requirement to deliver a fund facts document to investors for purchases of series securities made under automatic switching programs subject to compliance with certain notification and disclosure requirements in the simplified prospectus and fund facts document -- Relief granted from the requirement to prepare a fund facts document for each series of securities of a mutual fund in accordance with the form requirements in Form 81-101F3 and the requirement that the fund facts document contain only information that is specifically required or permitted to be in Form 81-101F3 so that the fund facts document delivered to investors in the automatic switching program will provide disclosure relating to the automatic switching program and all series in the automatic switching program, subject to certain conditions.

Applicable Legislative Provisions

National Instrument 81-101 Mutual Fund Prospectus Disclosure, ss. 3.2.01, 4.1(3)(a) and (d), 6.1.

June 5, 2018

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 PIMCO CANADA CORP. (the Filer) AND IN THE MATTER OF RBC DOMINION SECURITIES INC. (the Representative Dealer)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer on behalf of each existing mutual fund it manages (each, an Existing Fund and collectively, the Existing Funds) and any mutual fund for which the Filer may act as investment fund manager in the future (each, a Future Fund and collectively, the Future Funds and together with the Existing Funds, the Funds and each, a Fund) and the Representative Dealer for a decision under the securities legislation of the Jurisdiction (the Legislation) exempting:

(a) each dealer who trades in securities of the Funds (a Dealer) from the requirement in the Legislation for a dealer to deliver or send the most recently-filed fund facts document, which may include a Multiple Fund Facts Document, as defined below (a Fund Facts), in the manner as required under the Legislation (the Pre-Sale Fund Facts Delivery Requirement) in respect of the purchases of High Net Worth Series (as defined below) securities of the Funds that are made pursuant to Lower Fee Switches (as defined below) and in respect of the purchases of Retail Series (as defined below) securities of the Funds that are made pursuant to Higher Fee Switches (as defined below) (the Fund Facts Delivery Relief); and

(b) the Funds from the requirement in section 2.1 of National Instrument 81-101 Mutual Fund Prospectus Disclosure (NI 81-101) to prepare a Fund Facts in the form of Form 81-101F3 Contents of Fund Facts Document (Form 81-101F3), to permit the Funds to deviate from certain requirements in Form 81-101F3 in order to prepare a Multiple Fund Facts Document (as defined below) that includes the Program Disclosure (as defined below) (the Multiple Fund Facts Relief, and together with the Fund Facts Delivery Relief, 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 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 (the Other Jurisdictions, together with the Jurisdiction, the Jurisdictions).

Interpretation

Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meanings if used in this decision, unless otherwise defined. The following terms shall have the following additional meanings:

"Book Value" is the book value of record maintained by the Filer's recordkeeping agent for each position in each series of each Fund held in each account, which is based on the historic transaction activity on record. Book Value is not guaranteed to be equal to the investor's "adjusted cost base" for tax reporting purposes but is provided by the recordkeeping agent and used in connection with determining the High Net Worth Criteria. External book value figures will not be taken into account in connection with determining the High Net Worth Criteria. Investors may confirm the current Book Value for their holdings by contacting the Filer.

Representations

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

The Filer

1. The Filer is a corporation incorporated under the laws of the Province of Nova Scotia with its head office in Toronto, Ontario.

2. The Filer is registered as an investment fund manager in Ontario, Quebec and Newfoundland and Labrador, a portfolio manager and an exempt market dealer in each of the provinces of Canada, a commodity trading manager in Ontario and an adviser in Manitoba.

3. The Filer is the investment fund manager of the Existing Funds and will be the investment fund manager of Future Funds.

4. The Filer and the Existing Funds are not in default of securities legislation in any of the Jurisdictions.

The Representative Dealer

5. Securities of the Funds are, or will be, distributed through Dealers that include the Representative Dealer.

6. The Representative Dealer is a member of the Investment Industry Regulatory Organization of Canada and is registered in the category of investment dealer in the Jurisdictions.

7. Each Dealer is, or will be, registered as a dealer in one or more of the provinces and territories of Canada. The Dealers are, or will be, members of either the Investment Industry Regulatory Organization of Canada or the Mutual Fund Dealers Association of Canada.

8. The Representative Dealer is not in default of securities legislation in any of the Jurisdictions.

The Funds

9. Each Fund is, or will be, an open-end mutual fund trust created under the laws of one of the Jurisdictions or an open-end mutual fund that is a class of shares of a mutual fund corporation.

10. Each Fund is, or will be, a reporting issuer under the laws of the Jurisdictions and subject to National Instrument 81-102 Investment Funds. The securities of the Funds are, or will be, qualified for distribution pursuant to a simplified prospectus, Fund Facts and annual information form that have been, or will be, prepared and filed in accordance with NI 81-101.

11. The Existing Funds currently offer up to 12 series -- Series A, A(US$), F, F(US$), I, I(US$), M, M(US$), O, O(US$), H and ETF Series. The Filer may offer additional series in the future.

12. Series O, O(US$), M, M(US$) and any future applicable high net worth series securities of the Funds (the High Net Worth Series) have, or will have, lower management fees than the corresponding Series A, A(US$), F, F(US$) and any future applicable retail series securities (the Retail Series) and are, or will be, only available to investors who meet the High Net Worth Criteria (as defined below).

13. The securities of the Existing Funds are currently offered under a simplified prospectus, Fund Facts and annual information form dated July 27, 2017, as amended and restated as of August 29, 2017.

14. If the Exemption Sought is granted, the Filer will file an amended and restated simplified prospectus and annual information form and Fund Facts to announce the Fee Alignment Program (as defined below).

15. The Existing Funds are not in default of securities legislation in any of the Jurisdictions.

Fee Alignment Switches

16. Subject to receiving the Exemption Sought, the Filer may implement a program (the Fee Alignment Program), effective on or about June 29, 2018 (the Implementation Date), whereby investors holding Retail Series securities will be switched into the corresponding High Net Worth Series securities (each of Series A and O, Series A(US$) and O(US$), Series F and M, and Series F(US$) and M(US$) is a Program Set and together are the Program Sets) if they meet the following criteria (the High Net Worth Criteria):

To switch from Series A to Series O

If an investor holds, on the last business day of a quarter, a minimum of $100,000{*} of Series A units of a single Fund, based on the higher of market value or Book Value, all of that investor's Series A units{**} will be switched into Series O units, if the Fund offers Series O units and the switch would not trigger a redemption fee.

 

To switch from Series A(US$) to Series O(US$)

If an investor holds, on the last business day of a quarter, a minimum of $100,000{*} of Series A(US$) units of a single Fund, based on the higher of market value or Book Value, all of that investor's Series A(US$) units{**} will be switched into Series O(US$) units, if the Fund offers Series O(US$) units and the switch would not trigger a redemption fee.

 

To switch from Series F to Series M

If an investor holds, on the last business day of a quarter, a minimum of $100,000{*} of Series F units of a single Fund, based on the higher of market value or Book Value, all of that investor's Series F units{**} will be switched into Series M units, if the Fund offers Series M units.

 

To switch from Series F(US$) to Series M(US$)

If an investor holds, on the last business day of a quarter, a minimum of $100,000{*} of Series F(US$) units of a single Fund, based on the higher of market value or Book Value, all of that investor's Series F(US$) units{**} will be switched into Series M(US$) units, if the Fund offers Series M(US$) units.

 

To switch from Series O to Series A

If an investor holds, on the last business day of a quarter, less than $100,000{*} of Series O units of a single Fund, based on the higher of market value or Book Value{***}, that investor's series O units will be switched to Series A units, if the Fund offers Series A units.

 

To switch from Series O(US$) to Series A(US$)

If an investor holds, on the last business day of a quarter, less than $100,000{*} of Series O(US$) units of a single Fund, based on the higher of market value or Book Value{***}, that investor's series O(US$) units will be switched to Series A(US$) units, if the Fund offers Series A(US$) units.

 

To switch from Series M to Series F

If an investor holds, on the last business day of a quarter, less than $100,000{*} of Series M units of a single Fund, based on the higher of market value or Book Value{***}, that investor's series M units will be switched to Series F units, if the Fund offers Series F.

 

To switch from Series M(US$) to Series F(US$)

If an investor holds, on the last business day of a quarter, less than $100,000{*} of series M(US$) units of a single Fund, based on the higher of market value or Book Value{***}, that investor's Series M(US$) units will be switched to Series F(US$) units, if the Fund offers Series F(US$).

{*} Future series may have a minimum amount that may be more or less than $100,000.

{**} No partial account switches will be permitted.

{***} The switches may occur because of redemptions that decrease the amount of total investment in a Fund. Market value declines alone will not lead to a switch.

17. The Filer may switch these Retail Series investors into the High Net Worth Series (the Lower Fee Switches) without the Dealer or investor initiating the trade. If an investor holding High Net Worth Series securities ceases to meet the High Net Worth Criteria, the Filer will switch the High Net Worth Series securities into the applicable Retail Series securities without the Dealer or investor initiating the trade (the Higher Fee Switches, and together with the Lower Fee Switches, the Fee Alignment Switches). Eligibility for a Fee Alignment Switch is determined on the last business day of a quarter. The Fee Alignment Switches will be processed on or about the first business day of the next quarter.

18. The Filer may not initiate a Fee Alignment Switch or may cancel a Fee Alignment Switch if, between the day on which the High Net Worth Criteria is evaluated and the day on which a Fee Alignment Switch is processed, the investor switches its securities to another Fund.

19. In a situation where fund performance reduces an investor's total investments in a Fund below the minimum amounts set out in the High Net Worth Criteria, which were previously met by the investor, the investor's account would not be subject to a Higher Fee Switch and will continue to enjoy the benefit of the lower management fees associated with the High Net Worth Series.

20. Investors may access High Net Worth Series securities by: (a) initially investing in High Net Worth Series securities if they meet the High Net Worth Criteria; or (b) initially investing in Retail Series securities and then, upon meeting the High Net Worth Criteria, having those Retail Series securities switched into High Net Worth Series securities by way of a Lower Fee Switch.

21. Investors may access Retail Series securities by: (a) initially investing in Retail Series securities; or (b) initially investing in High Net Worth Series securities and then, upon not meeting the High Net Worth Criteria, having those High Net Worth Series securities switched into Retail Series securities by way of a Higher Fee Switch.

22. The trailing commissions for the High Net Worth Series and the Retail Series securities, eligible for the Fee Alignment Program, of each Fund, as applicable, are, or will be, identical.

23. Further to each Lower Fee Switch, an investor's account would continue to hold securities in the same Fund(s) as before the Lower Fee Switch, with the only material difference to the investor being that the management fee charged for the High Net Worth Series securities would be lower than that charged for Retail Series securities.

24. In no event will an investor who meets the High Net Worth Criteria and is switched into the High Net Worth Series as part of a Fee Alignment Switch be subject to a management fee higher than that of the Retail Series for which the investor initially subscribed.

25. Further to each Higher Fee Switch, an investor's account would continue to hold securities in the same Fund(s) as before the Higher Fee Switch, with the only material difference to the investor being that the management fee charged for the Retail Series securities would be higher than that charged for High Net Worth Series securities.

26. There are no sales charges, switch fees, short term trading fees or other fees payable by the investor upon a Fee Alignment Switch. Redemption fees will not be waived, so a Fee Alignment Switch will not take place if it would trigger a redemption fee (i.e. a low load fee).

27. Implementation of the Fee Alignment Program will have no adverse tax consequences on investors under Canadian tax legislation.

Multiple Fund Facts Document Relief

28. The Filer proposes to prepare, for each of their Funds, a consolidated Fund Facts for each Program Set (the Multiple Fund Facts Document), which Multiple Fund Facts Document will be delivered to securityholders in satisfaction of the Pre-Sale Fund Facts Delivery Requirement in connection with initial purchases of Retail Series or High Net Worth Series securities following the Implementation Date.

29. Each Multiple Fund Facts Document will include the information required by Form 81-101F3 for each of the series in the applicable Program Set, except for the past performance section, which will only disclose past performance data of the applicable Retail Series, as the case may be, as further described in representations 30(h) and (i) below.

30. Specifically, for each Multiple Fund Facts Document, the Filer proposes to deviate from the following requirements in Form 81-101F3:

a. General Instructions (10) and (16), to permit the Multiple Fund Facts Document to be the Fund Facts for, and disclose information relating to, each of the series in the applicable Program Set, except as further described below;

b. Item 1 (c.1) of Part I, to permit the Multiple Fund Facts Document to name each of the series in the applicable Program Set in the heading;

c. Instruction (0.1) of Item 2 of Part I, to permit the Multiple Fund Facts Document to identify the fund codes of each of the series in the applicable Program Set;

d. Instruction (1) of Item 2 of Part I, to permit the Multiple Fund Facts Document to list the date that each of the series in the applicable Program Set first became available to the public;

e. Instruction (3) of Item 2 of Part I, to permit the Multiple Fund Facts Document to disclose the management expense ratio (the MER) of each of the series in the applicable Program Set;

f. Instruction (6) of Item 2 of Part I, to permit the Multiple Fund Facts Document to specify the minimum investment amount and the additional investment amount for each of the series in the applicable Program Set;

g. General Instruction (8), to permit the Multiple Fund Facts Document to include a footnote under the "Quick Facts" table that:

i. states that the Fund Facts pertains to each of the series in the applicable Program Set; and

ii. cross-references the "How much does it cost?" section of the Fund Facts for further details about the Fee Alignment Program;

h. Item 5(1) of Part I, to permit the Multiple Fund Facts Document to:

i. reference only the applicable Retail Series in the introduction under the heading "How has the fund performed?"; and

ii. include, as a part of the introduction, disclosure explaining that the performance for each of the applicable High Net Worth Series in the Program Set would be similar to the performance of the corresponding Retail Series, but would vary as a result of the difference in fees compared to the corresponding Retail Series;

i. Instruction (4) of Item 5 of Part I, to permit a Multiple Funds Facts Document to show the required performance data under the sub-headings "Year-by-year returns," "Best and worst 3-month returns," and "Average return" relating only to the applicable Retail Series;

j. Item 1(1.1) of Part II, to permit a Multiple Fund Facts Document to:

i. refer to each of the series in the applicable Program Set in the introductory statement under the heading "How much does it cost?"; and

ii. include, as a part of the introductory statement, a summary of the Fee Alignment Program, consisting of:

1. a statement explaining that the High Net Worth Series charges lower management fees than the corresponding Retail Series;

2. a statement explaining the scenarios in which the Fee Alignment Switches will be due to the investor not meeting the eligibility requirements for a particular High Net Worth Series;

3. a statement explaining that a Fee Alignment Switch will not take place if it would trigger a redemption fee (i.e. a low load fee);

4. a cross-reference to specific sections of the simplified prospectus of the Funds for more details about the Fee Alignment Program; and

5. a statement disclosing that investors should speak to their representative for more details about the Fee Alignment Program;

k. Instruction (1) of Item 1 of Part II, to permit a Multiple Fund Facts Document to refer to each of the series in the applicable Program Set in the introduction under the sub-heading "Sales charges", if applicable;

l. Item 1(1.3)(2) of Part II, to permit a Multiple Fund Facts Document, where the applicable Fund is not new, to:

i. disclose the MER, trading expense ratio and fund expenses of each of the series in the applicable Program Set, and where certain information is not available for a particular series, to state "not available" in the corresponding part of the table; and

ii. disclose the management fee of each series in the applicable Program Set in a new row at the bottom of the table;

m. Item 1(1.3)(3) of Part II, to permit a Multiple Fund Facts Document, where the applicable Fund is not new, to provide the required disclosure for each series in the applicable Program Set; and

n. Item 1(1.3)(4) of Part II, to permit a Multiple Fund Facts Document, where the applicable Fund is new, to provide the required disclosure for each series in the applicable Program Set;

(collectively, the Program Disclosure)

31. The Filer submits that, given that each of the series in a Program Set are part of the Fee Alignment Program, and an investor in these series would make one investment decision at the outset by purchasing the series, a Multiple Fund Facts Document containing the Program Disclosure will provide investors with a more comprehensive disclosure about the Fee Alignment Program and each of the series into which it can be switched as part of the Fee Alignment Program compared to disclosure in separate Fund Facts for each of the series in the applicable Program Set.

32. Since, if the Fund Facts Delivery Relief described below is granted, the Fund Facts for the Retail Series or High Net Worth Series, as applicable, would not be delivered in connection with a Fee Alignment Switch, the Filer submits that there is little benefit to preparing separate Fund Facts for each of the series in the applicable Program Set. The Filer submits that the Multiple Fund Facts Document containing the Program Disclosure, which would be delivered to investors before their initial investment of Retail Series or High Net Worth Series securities of a Fund, as applicable, provides investors with better disclosure than if investors received the Fund Facts pertaining only to the applicable Retail Series or High Net Worth Series under the Fee Alignment Program.

Fund Facts Delivery Requirement

33. Each Fee Alignment Switch will entail a redemption of the Retail Series or High Net Worth Series securities, as applicable, immediately followed by a purchase of the corresponding High Net Worth Series or Retail Series securities, as applicable, and will be a "distribution" under the Legislation, which triggers the Pre-Sale Fund Facts Delivery Requirement.

34. Pursuant to the Pre-Sale Fund Facts Delivery Requirement, a dealer is required to deliver the Fund Facts of a series of a fund to an investor before the dealer accepts an instruction from the investor for the purchase of securities of that series of the fund.

35. While the Filer will initiate each trade done as part of a Fee Alignment Switch, the Filer does not propose to deliver the Fund Facts to investors in connection with the purchase of securities made pursuant to a Fee Alignment Switch for the following reasons:

a. since Retail Series investors would have received the Fund Facts disclosing the higher level of fees which applied to the Retail Series for which they initially subscribed, the investor would derive little benefit from receiving a further Fund Facts document for each Lower Fee Switch; and

b. since a Multiple Fund Facts Document containing the Program Disclosure will provide investors with a more comprehensive disclosure about the Fee Alignment Program and each of the series into which it can be switched as part of the Fee Alignment Program compared to disclosure in separate Fund Facts for each of the series in the applicable Program Set.

36. The Filer or the Dealer will deliver or will arrange for the delivery of trade confirmations to investors in connection with each trade done further to a Fee Alignment Switch. Furthermore, details of the changes in series of securities held will be reflected in the account statements sent to investors for the quarter in which the change occurred.

37. The Filer will communicate with Dealers about the Fee Alignment Switches so that Dealers will be well prepared to appropriately communicate with existing Retail Series investors about the changes applying to their investments and will appropriately advise new Retail Series investors about the Fee Alignment Switches.

38. In the absence of the Exemption Sought, the Filer may not carry out the Fee Alignment Switches without compliance with the Pre-Sale Fund Facts 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 provided that:

1. the Multiple Fund Facts Relief is granted provided that each Multiple Fund Facts Document contains the Program Disclosure; and

2. the Fund Facts Delivery Relief is granted provided that:

a. For investors invested in Retail Series or the High Net Worth Series prior to the Implementation Date, the Filer will liaise with the relevant Dealers to devise and implement a notification plan for such investors regarding the Fee Alignment Switches to communicate the following:

i. that their investment may be automatically switched to a High Net Worth Series with lower management fees upon meeting the High Net Worth Criteria;

ii. that their investment may be switched to a Retail Series with higher fees upon ceasing to meet the High Net Worth Criteria;

iii. that other than a difference in management fees there will be no other material difference between the Retail Series and the High Net Worth Series; and

iv. that they will not receive the Fund Facts in connection with a Fee Alignment Switch, but that:

1. they may request the Fund Facts for the relevant series (which will be the Multiple Fund Facts) by calling a specified toll-free number or by sending a request via email to a specified address;

2. the Fund Facts will be sent or delivered to them at no cost, if requested;

3. the Fund Facts may be found either on the SEDAR website or on the Filer's website; and

4. they will not have the right to withdraw from an agreement of purchase and sale (a Withdrawal Right) in connection with a Fee Alignment Switch, but they will have the right of action for damages or rescission in the event any Fund Facts or document incorporated by reference into a simplified prospectus for the relevant series contains a misrepresentation, whether or not they request the Fund Facts;

b. The Filer has incorporated, or will incorporate, disclosure in the simplified prospectus for the High Net Worth Series and Retail Series that sets out the following:

i. the High Net Worth Criteria;

ii. the fees applicable to investments in the High Net Worth Series and Retail Series;

iii. that in the event a High Net Worth Series investor ceases to meet the High Net Worth Criteria, their investment will be switched into the corresponding Retail Series, with a higher management fee; and

iv. that a Fee Alignment Switch will not take place if it would trigger a redemption fee (i.e. a low load fee).

c. The Multiple Fund Facts Document containing the Program Disclosure is delivered to investors prior to the time of first purchase of High Net Worth Series and Retail Series securities, as applicable, in accordance with the Pre-Sale Fund Facts Delivery Requirement; and

d. For Retail Series and High Net Worth Series investors, the Filer will send these investors an annual reminder notice advising that they will not receive the Fund Facts in connection with a Fee Alignment Switch, but that:

i. they may request the Fund Facts for the relevant series by calling a specified toll-free number or by sending a request via email to a specified address;

ii. the Fund Facts will be sent or delivered to them at no cost;

iii. the Fund Facts may be found either on the SEDAR website or on the Filer's website; and

iv. they will not have a Withdrawal Right in respect of the securities they receive in connection with a Fee Alignment Switch, but they will have a right of action for damages or rescission in the event any Fund Facts or document incorporated by reference into a simplified prospectus for the relevant series contains a misrepresentation, whether or not they request the Fund Facts.

e. The Filer provides to the principal regulator, on an annual basis, beginning 60 days after the date upon which the Fund Facts Delivery Relief is first relied upon by a Dealer, either:

i. a current list of all such Dealers that are relying on the Fund Facts Delivery Relief; or

ii. an update to the list of such Dealers or confirmation that there has been no change to such list;

"Stephen Paglia"
Manager
Investment Funds & Structured Products Branch
Ontario Securities Commission