Mackenzie Financial Corporation et al. - s. 80 of the CFA

Section 80 of the Commodity Futures Act (Ontario) -- Relief from the adviser registration requirements of subsection 22(1)(b) of the CFA granted to sub-advisers not ordinarily resident in Ontario in respect of advice regarding trades in commodity futures contracts and commodity futures options traded on commodity futures exchanges outside of Canada and cleared through clearing corporations outside of Canada, subject to certain terms and conditions. Relief mirrors exemption available in section 7.3 of Ontario Securities Commission Rule 35-502 -- Non-Resident Advisers made under the Securities Act (Ontario) -- Exemption expires in five years.

Statutes Cited

Commodity Futures Act, R.S.O. 1990, c. C.20, as am., ss. 22(1)(b), 80.

Securities Act, R.S.O. 1990, c. S.5, as am. -- Rule 35-502 -- Non Resident Advisers.

March 18, 2008

IN THE MATTER OF

THE COMMODITY FUTURES ACT, R.S.O. 1990,

CHAPTER C. 20, AS AMENDED

(the CFA)

AND

IN THE MATTER OF

MACKENZIE FINANCIAL CORPORATION

AND

ABERDEEN ASSET MANAGEMENT INC.

AND

EATON VANCE MANAGEMENT

AND

HENDERSON GLOBAL INVESTORS LIMITED

AND

IVY INVESTMENT MANAGEMENT COMPANY

AND

POLAR CAPITAL LLP

AND

PUTNAM INVESTMENTS LIMITED

AND

RCM ASIA PACIFIC LIMITED

AND

SETANTA ASSET MANAGEMENT LTD.

AND

THE PUTNAM ADVISORY COMPANY, LLC

ORDER

(Section 80)

UPON the application (the Application) of Mackenzie Financial Corporation (the Principal Adviser) and Aberdeen Asset Management Inc., Eaton Vance Management, Henderson Global Investors Limited, Ivy Investment Management Company, Polar Capital LLP, Putnam Investments Limited, RCM Asia Pacific Limited, Setanta Asset Management Ltd., and The Putnam Advisory Company, LLC (each, a Sub-Adviser, and collectively the Sub-Advisers) to the Ontario Securities Commission (the Commission) for an order, pursuant to section 80 of the CFA, that each Sub-Adviser, including their respective directors, partners, officers, and employees (the Sub-Adviser Representatives), be exempt, for a period of five years, from the registration requirements of paragraph 22(1)(b) of the CFA in respect of acting as a sub-adviser to certain mutual funds (the Managed Funds, as defined below) in respect of trades in commodity futures contracts and commodity futures options traded on commodity futures exchanges outside of Canada and cleared through clearing corporations outside of Canada;

AND UPON considering the Application and the recommendation of staff of the Commission;

AND UPON the Principal Adviser and the Sub-Advisers having represented to the Commission that:

1. The Principal Adviser is a corporation organized under the laws of Ontario with its head office located in Toronto, Ontario.

2. The Principal Adviser is registered:

(a) under the Securities Act (Ontario) (the OSA), as an adviser in the categories of investment counsel and portfolio manager and as a dealer in the category of limited market dealer; and

(b) under the CFA as an adviser in the categories of commodity trading counsel and commodity trading manager.

3. The Principal Adviser retains the services of the Sub-Advisers in connection with the management of the investments of the Managed Funds.

4. Each of the Sub-Advisers is organized under the laws of a jurisdiction other than Canada or the provinces or territories thereof. In particular, the Sub-Advisers are:

(a) Aberdeen Asset Management Inc., a corporation organized under the laws of the State of Delaware, United States;

(b) Eaton Vance Management, a corporation organized under the laws of the State of Massachusetts, United States;

(c) Henderson Global Investors Limited, a corporation organized under the laws of England;

(d) Ivy Investment Management Company, a corporation organized under the laws of the State of Delaware, United States;

(e) Polar Capital LLP, a corporation organized under the laws of England;

(f) Putnam Investments Limited, a company organized under the laws of England and Wales;

(g) RCM Asia Pacific Limited, a corporation organized under the laws of Hong Kong;

(h) Setanta Asset Management Ltd., a corporation organized under the laws of Ireland; and

(i) The Putnam Advisory Company, LLC, a corporation organized under the laws of the State of Delaware, United States.

5. None of the Sub-Advisers are registered in any capacity under the CFA and are not required to do so under the laws of their respective jurisdiction in order to engage in the Sub-Advisory Services (as defined below).

6. The Principal Adviser acts as adviser (as defined in the OSA) and portfolio manager of Mackenzie Universal Sustainable Opportunities Class, Quadrus Eaton Vance U.S. Value Corporate Class, Mackenzie Focus Canada Class, Mackenzie Focus Canada Fund, Mackenzie Focus Class, Mackenzie Focus Fund, Mackenzie Focus Far East Class, Mackenzie Focus International Class, Mackenzie Focus Japan Class, Mackenzie Universal European Opportunities Class, Mackenzie Universal European Opportunities Fund, Mackenzie Universal International Stock Class, Mackenzie Universal International Stock Fund, Mackenzie Focus America Class, Mackenzie Sentinel Corporate Bond Fund, Mackenzie Sentinel Global Bond Fund, Mackenzie Universal U.S. Blue Chip Class, Mackenzie Universal U.S. Dividend Income Fund, Mackenzie Universal U.S. Emerging Growth Class, Mackenzie Universal U.S. Growth Leaders Class, Mackenzie Universal U.S Growth Leaders Fund, Symmetry Equity Class, Symmetry Registered Fixed Income Pool, Mackenzie Fixed Income Fund, Mackenzie Universal World Science & Technology Class, Putnam International Equity Fund, Quadrus Setanta Global Dividend Corporate Class, Putnam Global Equity Fund, Putnam U.S. Value Fund, Putnam U.S. Voyager Fund and Putnam International Equity Fund (collectively, the Existing Funds). The Principal Adviser may in the future establish or act as portfolio manager for certain other mutual funds, non-redeemable investment funds or similar investment vehicles (together with the Existing Funds, the Managed Funds each, a Managed Fund).

7. The Managed Funds may, as part of their investment strategies, invest in commodity futures contracts and commodity futures options traded on commodity futures exchanges outside of Canada and cleared through clearing corporations outside of Canada.

8. In connection with the Principal Adviser acting as an adviser to the Managed Funds, in respect of the purchase or sale of commodity futures contracts and commodity futures options, the Principal Adviser, may, from time to time, pursuant to a written agreement made between the Principal Adviser and each Sub-Adviser (the Sub-Advisory Agreement), retain each Sub-Adviser to act as Sub-Adviser to the Principal Adviser, by exercising discretionary authority, on behalf of the Principal Adviser, in respect of the investment portfolio of the Managed Funds, with discretionary authority to buy or sell commodity futures options and commodity futures contracts for the Managed Funds in accordance with the investment objective and/or strategies of the respective Managed Fund (the Sub-Advisory Services), provided that:

(i) in each case, the option or contract must be cleared through an acceptable clearing corporation; and

(ii) in no case will any trading in commodity futures contracts or commodity futures options constitute the primary focus or investment objective of the Managed Funds.

9. Paragraph 22(1)(b) of the CFA prohibits a person or company from acting as an adviser unless the person or company is registered as an adviser under the CFA, or is registered as a partner or an officer of a registered adviser and is acting on behalf of a registered adviser. Under the CFA, "adviser" means a person or company engaging in or holding himself, herself or itself out as engaging in the business of advising others as to trading in "contracts", and "contracts" means commodity futures contracts and commodity futures options.

10. By providing the Sub-Advisory Services, each Sub-Adviser will be providing advice to Ontario investors with respect to commodity futures contracts and commodity futures options and, in the absence of being granted the requested relief, would be required to register as an adviser under the CFA.

11. There is presently no rule under the CFA that provides an exemption from the adviser registration requirement in paragraph 22(1)(b) of the CFA for a person or company acting as an adviser in respect of commodity futures contracts and commodity futures options that is similar to the exemption from the adviser registration requirement in section 25(1)(c) of the OSA for acting as an adviser (as defined in the OSA) in respect of securities that is provided under section 7.3 of OSC Rule 35-502 -- Non Resident Advisers (Rule 35-502).

12. As would be required under section 7.3 of Rule 35-502:

(a) the obligations and duties of each Sub-Adviser in connection with the Sub-Advisory Services will be set out in a written agreement with the Principal Adviser;

(b) the Principal Adviser will contractually agree with the Managed Funds to be responsible for any loss that arises out of the failure of the Sub-Adviser:

(i) to exercise the powers and discharge the duties of its office honestly, in good faith and in the best interests of the Principal Adviser and the Managed Funds; or

(ii) to exercise the degree of care, diligence and skill that a reasonably prudent person would exercise in the circumstances (together with (i), the Assumed Obligations).

(c) the Principal Adviser cannot be relieved by the Managed Funds from its responsibility for any loss that arises out of the failure of the Sub-Advisers to meet the Assumed Obligations.

13. Each Sub-Adviser, where required, is or will be appropriately registered or licensed or is, or will be, entitled to rely on appropriate exemptions from such registrations or licences to provide advice to the Managed Funds pursuant to the applicable legislation of its principal jurisdiction.

14. All security holders of the Managed Funds have received written disclosure, in a prospectus or other offering document, that includes:

(a) a statement that the Principal Adviser is responsible for any loss that arises out of the failure of the Sub-Adviser to meet the Assumed Obligations; and

(b) a statement that there may be difficulty in enforcing any legal rights against the Sub-Adviser or the Sub-Adviser Representatives advising the relevant Managed Fund because it is resident outside of Canada and all or substantially all of its assets are situated outside of Canada.

AND UPON being satisfied that it would not be prejudicial to the public interest for the Commission to grant the exemption requested on the basis of the terms and conditions proposed;

IT IS ORDERED pursuant to section 80 of the CFA that each Sub-Adviser, including the Sub-Adviser Representatives, are exempted from the requirements of paragraph 22(1)(b) of the CFA in respect of the Sub-Advisory Services provided to the Principal Adviser, for a period of five years, provided that at the relevant time that such activities are engaged in:

(a) the Principal Adviser is registered under the CFA as an adviser in the categories of commodity trading counsel and commodity trading manager;

(b) the Sub-Advisers are appropriately registered to provide advice to the relevant Managed Fund pursuant to the applicable legislation of its principal jurisdiction;

(c) the duties and obligations of each Sub-Adviser is set out in the Sub-Advisory Agreement with the Principal Adviser;

(d) the Principal Adviser has contractually agreed with the respective Managed Funds to be responsible for any loss that arises out of any failure of the Sub-Adviser of the relevant Managed Fund to meet the Assumed Obligations;

(e) the Principal Adviser cannot be relieved by the Managed Funds or its security holders from its responsibility for any loss that arises out of the failure of the Sub-Advisers to meet the Assumed Obligations;

(f) all security holders of the Managed Funds will receive written disclosure, in a prospectus or other offering document, that includes:

(i) a statement that the Principal Adviser is responsible for any loss that arises out of the failure of the Sub-Advisers to meet the Assumed Obligations; and

(ii) a statement that there may be difficulty in enforcing any legal rights against the respective Sub-Adviser or the Sub-Adviser Representatives advising the relevant Managed Fund because the Sub-Adviser is resident outside of Canada and all or substantially all of its assets are situated outside of Canada; and

(g) all prospectus or offering documents of the Managed Funds filed and delivered after the date on which this Order is granted will contain written disclosure that includes:

(i) a statement that the respective Sub-Adviser advising the relevant Managed Fund is not, or will not be, registered with the Commission under the CFA and, accordingly, the protections available to clients of a registered adviser under the CFA will not be available to purchasers of units of the relevant Managed Fund.