IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
MACKENZIE FINANCIAL CORPORATION AND UNIVERSAL RSP ETHICAL OPPORTUNITIES FUND, UNIVERSAL RSP FAR EAST FUND, UNIVERSAL RSP FINANCIAL SERVICES FUND,UNIVERSAL RSP HEALTH SCIENCES FUND, UNIVERSAL RSP INTERNET TECHNOLOGIES FUND, UNIVERSAL RSP JAPAN FUND, UNIVERSAL RSP TELECOMMUNICATIONS FUND,(collectively, the "RSP Funds")UNIVERSAL ETHICAL OPPORTUNITIES FUND, UNIVERSAL FAR EAST FUND, UNIVERSAL FINANCIAL SERVICES FUND,UNIVERSAL HEALTH SCIENCES FUND, UNIVERSAL INTERNET TECHNOLOGIES FUND, UNIVERSAL JAPAN FUND, UNIVERSAL TELECOMMUNICATIONS FUND(collectively, the "Underlying Funds")
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "DecisionMaker") in each of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba,Ontario, Nova Scotia and Newfoundland (the "Jurisdictions") has received an application(the "Application") from Mackenzie Financial Corporation ("Mackenzie" or the "Manager"),the RSP Funds and the Underlying Funds for a decision pursuant to the securitieslegislation of the Jurisdictions (the "Legislation") that:
1. the requirements contained in the Legislation requiring the mutual fund securityholder to issue a news release and file a report where its aggregate holdings ofsecurities of a reporting issuer exceed 10% of the outstanding securities of thereporting issuer and refrain from purchasing additional securities of the UnderlyingFunds for a specified period of time once its holdings exceed this 10% level, andbefore such holdings exceed the 20% level, shall not apply in respect ofinvestments to be made by the RSP Funds in their corresponding UnderlyingFunds;
2. the restrictions contained in the Legislation prohibiting a mutual fund fromknowingly making and holding an investment in a person or company in which themutual fund, alone or together with one or more related mutual funds, is asubstantial securityholder shall not apply in respect of certain investments to bemade by the RSP Funds in their corresponding Underlying Funds;
3. the requirements contained in the Legislation requiring the management companyto file a report relating to a purchase or sale of securities between the mutual fundand any related person or company, or any transaction in which, by arrangementother than an arrangement relating to insider trading in portfolio securities, themutual fund is a joint participant with one or more of its related persons orcompanies, shall not apply in respect of certain investments to be made by the RSPFunds in their corresponding Underlying Funds; and
4. the requirements contained in the Legislation prohibiting the portfolio manager (orin the case of the Securities Act (British Columbia), the mutual fund or responsibleperson) from knowingly causing an investment portfolio managed by it (the mutualfund) to invest in the securities of an issuer in which a responsible person is anofficer or director unless the specific fact is disclosed to the client, if applicable, andthe written consent of the client to the investment is obtained before the purchaseshall not apply in respect of certain investments to be made by the RSP Funds intheir corresponding Underlying Funds;
The Legislation outlined above in paragraphs 1 through 4 will be referred to in thisDecision Document as the "Applicable Legislation";
AND WHEREAS pursuant to the Mutual Reliance Review System for ExemptiveRelief Applications (the "System"), the Ontario Securities Commission is the principalregulator for this application;
AND WHEREAS it has been represented by the Manager to the Decision Makersthat:
1. Each of the RSP Funds will be and each of the Underlying Funds is an open-endedmutual fund trust established under the laws of the Province of Ontario. Mackenzieis a corporation established under the laws of the Province of Ontario and for eachof the RSP Funds will be and for each of the Underlying Funds is the trustee,manager and promoter. Mackenzie is and will be the registrar and transfer agentfor all of the Underlying Funds and the RSP Funds. The head office of Mackenzieis in Toronto, Ontario.
2. The RSP Funds will be, and the Underlying Funds are, reporting issuers and theUnderlying Funds are not in default of any requirements of the act or rulesapplicable in each of the provinces and territories of the various securitiesauthorities of Canada. The securities of each of the Underlying Funds are currentlyqualified for distribution pursuant to a simplified prospectus and annual informationform and the securities of the RSP Funds will be qualified under a simplifiedprospectus and annual information form (collectively, the "Prospectus") to be filedshortly in all provinces and territories.
3. Each of the RSP Funds seeks to achieve its investment objective while ensuringthat securities of the RSP Fund do not constitute "foreign property" for registeredretirement savings plans, registered retirement income funds and deferred profitsharing plans ("Registered Plans").
4. To achieve its investment objective, each of the RSP Funds invests its assets insecurities such that its units will, in the opinion of tax counsel to the RSP Funds,be "qualified investments" for Registered Plans and will not constitute foreignproperty in a Registered Plan. This will primarily be achieved through theimplementation of a derivative strategy. However, the RSP Funds also intend toinvest a portion of their assets in securities of the Underlying Funds. Thisinvestment by the RSP Funds will at all times be below the maximum foreignproperty limit prescribed for Registered Plans (the "Permitted Limit").
5. The investment objectives of the Underlying Funds are achieved throughinvestment primarily in foreign securities.
6. The direct investments by the RSP Funds in the Underlying Funds will be within thePermitted Limit (the "Permitted RSP Fund Investment"). The Manager and the RSPFunds will comply with the conditions of this Decision in respect of suchinvestments. The amount of direct investment by each RSP Fund in itscorresponding Underlying Fund will be adjusted from time to time so that, exceptfor transitional cash, the aggregate of derivative exposure to, and direct investmentin, the Underlying Fund will equal 100% of the assets of the RSP Fund.
7. Except to the extent evidenced by this Decision and specific approvals granted bythe Canadian securities administrators pursuant to National Instrument 81-102Mutual Funds ("NI 81-102"), the investments by the RSP Funds in the UnderlyingFunds have been structured to comply with the investment restrictions of theLegislation and NI 81-102.
8. In the absence of this Decision, as soon as the aggregate holdings by a RSP Fundof securities of the corresponding Underlying Fund exceed 10% of the outstandingsecurities of the Underlying Fund, the Manager, and possibly the RSP Fund, wouldbe required to comply with the reporting and other requirements of the Legislation.
9. In the absence of this Decision, pursuant to the Legislation, each of the RSP Fundsis prohibited from (a) knowingly making an investment in a person or company inwhich the mutual fund, alone or together with one or more related mutual funds, isa substantial securityholder; and (b) knowingly holding an investment referred toin subsection (a) hereof. As a result, in the absence of this Decision a RSP Fundwould be required to divest itself of any investments referred to in subsection (a)herein.
10. In the absence of this Decision, the Legislation requires the Manager to file a reporton every purchase or sale of securities of the Underlying Funds by the RSP Funds.
11. By virtue of Mackenzie being the trustee of the RSP Funds and the UnderlyingFunds and, therefore, an "associate" of each such mutual fund and becauseMackenzie is the portfolio manager of the RSP Funds and certain of the directorsand officers of Mackenzie are also officers of the RSP Funds and the UnderlyingFunds and, as such a "responsible person" pursuant to legislation, in the absenceof this Decision, Mackenzie would be prohibited from causing the RSP Funds toinvest in the Underlying Funds unless the specific fact is disclosed to investors and,if applicable, the written consent of investors is obtained before the purchase.
AND WHEREAS pursuant to the System this MRRS Decision Document evidencesthe decision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test contained inthe Legislation that provides the Decision Maker with the jurisdiction to make the Decisionhas been met;
The Decision of the Decision Makers pursuant to the Legislation is that theApplicable Legislation shall not apply so as to prevent the RSP Funds from investing in,or redeeming the securities of, the Underlying Funds and such investment does not requirefurther consent from or notice to securityholders of the RSP Funds or the Decision Makers.
PROVIDED IN EACH CASE THAT:
1. this Decision, as it relates to the jurisdiction of a Decision Maker, will terminate oneyear after the publication in final form of any legislation or rule of that DecisionMaker dealing with the matters in subsection 2.5(1) of NI 81-102; and
2. the foregoing Decision shall only apply in respect of investments in, or transactionswith, the Underlying Funds that are made by the RSP Funds in compliance with thefollowing conditions:
a) the RSP Funds and the Underlying Funds are under common managementand the Underlying Funds' securities are offered for sale in the jurisdictionof the Decision Maker pursuant to a prospectus which has been filed withand accepted by the Decision Maker;
b) each RSP Fund restricts its aggregate direct investment in its correspondingUnderlying Fund to a percentage of its assets that is within the PermittedLimit;
c) the investment by the RSP Funds in the Underlying Funds is compatible withthe fundamental investment objective of the RSP Funds;
d) the prospectus of the RSP Funds will describe the intent of the RSP Fundsto invest in a specified Underlying Fund;
e) the RSP Funds may change the Permitted RSP Fund Investments only ifthey change their fundamental investment objectives in accordance with theLegislation;
f) no sales charges are payable by the RSP Funds in relation to its purchasesof securities of the Underlying Funds;
g) there are compatible dates for the calculation of the net asset value of theRSP Funds and the Underlying Funds for the purpose of the issue andredemption of the securities of such mutual funds;
h) no redemption fees or other charges are charged by the Underlying Fundsin respect of the redemption by the RSP Funds of securities of theUnderlying Funds owned by the RSP Funds;
i) the arrangements between or in respect of the RSP Funds and theUnderlying Funds are such as to avoid the duplication of management fees;
j) no fees and charges of any sort are paid by a RSP Fund or by an UnderlyingFund or by the manager or principal distributor of a RSP Fund or anUnderlying Fund or by any affiliate or associate of any of the foregoingentities to anyone in respect of a RSP Fund's purchase, holding orredemption of the securities of the Underlying Fund;
k) in the event of the provision of any notice to securityholders of theUnderlying Funds, as required by the constating documents of theUnderlying Funds or by the laws applicable to the Underlying Funds, suchnotice will also be delivered to the securityholders of the RSP Funds; allvoting rights attached to the securities of the Underlying Funds that areowned by the RSP Funds will be passed through to the securityholders ofthe RSP Funds; in the event that a securityholders' meeting is called for anUnderlying Fund, all of the disclosure and notice material prepared inconnection with such meeting will be provided to the securityholders of thecorresponding RSP Fund and such securityholders will be entitled to directa representative of the RSP Fund to vote that RSP Fund's holding in theUnderlying Fund in accordance with their direction; and the representativeof the RSP Fund will not be permitted to vote the RSP Fund's holdings in theUnderlying Fund except to the extent the securityholders of the RSP Fundso direct;
l) in addition to receiving the annual and, upon request, the semi-annualfinancial statements, of the RSP Funds, securityholders of the RSP Fundswill receive the annual and, upon request, the semi-annual financialstatements, of the Underlying Funds in either a combined report, containingboth the RSP Funds' and Underlying Funds' financial statements, or in aseparate report containing the Underlying Funds' financial statements; and
m) to the extent that the RSP Funds and the Underlying Funds do not use acombined simplified prospectus and annual information form and financialstatements containing disclosure about the RSP Funds and the UnderlyingFunds, copies of the simplified prospectus, annual information form andannual and semi-annual financial statements relating to the UnderlyingFunds may be obtained upon request by a securityholder of the RSP Funds.
March 29th, 2000.
"J. A. Geller" "R. Stephen Paddon"