Representatives of mutual fund dealer exempted from the prohibition against paymentof commission/fee rebates to clients who switch investments from one mutual fund toanother mutual fund related to the dealer, subject to specified conditions.
National Instrument Cited
NI 81-105, ss. 4.2(1), 7.1(1)(a), 7.1(1)(b), 9.1, Part 8
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
DYNAMIC MUTUAL FUNDS LTD. DUNDEE SECURITIES CORPORATION
DUNDEE PRIVATE INVESTORS INC.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "DecisionMaker") in each of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, NewBrunswick, Nova Scotia, Prince Edward Island, Newfoundland, Nunavut and the Yukonand Northwest Territories (the "Jurisdictions") has received an application from DynamicMutual Funds Ltd., Dundee Securities Corporation and Dundee Private Investors Inc.(collectively, "Dundee") on behalf of themselves and future affiliates of Dynamic MutualFunds Ltd. who are dealers (the "Future Affiliated Dealers") and their respective salesrepresentatives (the " Representatives") from time to time for a decision pursuant tosection 9.1 of National Instrument 81-105 ("NI 81-105") that the prohibitions on certainrebates ("Rebates") of redemption commissions or fees contained in paragraph 7.1(1)(b)of NI 81-105 shall not apply to Rebates paid by Representatives to clients who switch fromthird party mutual funds to Dynamic Funds (as hereinafter defined) ("Proprietary Rebates");
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 Dundee has represented to the Decision Makers that:
1. Dundee Private Investors Inc. ("Dundee Private Investors") is a subsidiary ofDundee Wealth Management Inc. ("Dundee Wealth") and is registered as amutual fund dealer in the Provinces of British Columbia, Alberta, Saskatchewan,Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Newfoundland,and Dundee Securities Corporation ("Dundee Securities") is a subsidiary ofDundee Wealth and is registered as a securities dealer in the Provinces ofBritish Columbia, Alberta, Saskatchewan, Ontario, Quebec, New Brunswick,Nova Scotia and Newfoundland;
2. Dynamic Mutual Funds Ltd. ("Dynamic") is a subsidiary of Dundee Wealth and isregistered as an adviser in the categories of investment counsel and portfoliomanager in the Provinces of Ontario, Manitoba, Saskatchewan, Alberta andBritish Columbia, and as a mutual fund dealer in the Provinces of Quebec,British Columbia, Manitoba and Ontario;
3. Dynamic is the manager of mutual funds known as the Dynamic Funds, theViscount Funds and the Canmore Funds (these mutual funds together with anymutual funds of which Dynamic or any affiliate of Dynamic becomes manager inthe future are referred to collectively as the "Dynamic Funds");
4. Dundee Private Investors and Dundee Securities are participating dealers of theDynamic Funds as well as of third party mutual funds ("Third Party Funds");
5. No Representative owns more than 10% of the outstanding voting or equitysecurities of Dundee Wealth and no Representative owns any of the outstandingvoting or equity securities of Dynamic, Dundee Securities or Dundee PrivateInvestors;
6. Dundee Securities and Dundee Private Investors are affiliates of Dynamic andare therefore "members of the organization" of the Dynamic Funds pursuant toNI 81-105;
7. Paragraph 7.1(1)(b) of NI 81-105 prohibits Representatives from payingProprietary Rebates;
8. This relief is being applied for in order to permit Rebates to be paid byRepresentatives to clients who are switching from Third Party Funds to DynamicFunds;
9. The decision to provide Proprietary Rebates will be made by theRepresentatives based on the best interests of the client;
10. Representatives are not required by Dynamic or any of its affiliates to sellDynamic Funds to clients and accordingly have no quotas in respect of sellingDynamic Funds and are not provided with incentives by Dynamic (other than aspermitted by NI 81-105) or any of its affiliates to sell Dynamic Funds.
AND WHEREAS pursuant to the System this Decision Document evidences thedecision of each Decision Maker (collectively the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test containedin NI 81-105 that provides the Decision Maker with the jurisdiction to make the Decisionhas been met;
THE DECISION of the Decision Makers pursuant to section 9.1 of NI 81-105 isthat the Representatives are exempt from the prohibitions on Rebates contained inparagraph 7.1(1)(b) of NI 81-105 to the extent necessary to allow Representatives topay Proprietary Rebates;
PROVIDED that in respect of each such payment:
(i) Dynamic, the relevant affiliate of Dynamic and the relevant Representative, asthe case may be, complies with the informed written consent provisions ofparagraph 7.1(1)(a) and the disclosure and consent provisions of Part 8 of NI81-105 except to the extent that Dundee obtains or has obtained permissionfrom the Canadian Securities Administrators to deviate from such requirements;
(ii) clients are advised, in advance, that any Rebate proposed to be made availableby a Representative in connection with the purchase of securities of DynamicFunds will be available to the client regardless of whether the redemptionproceeds are invested in a Dynamic Fund or a Third Party Fund (to a maximumof the commission earned by the Representative on the purchase);
(iii) neither Dynamic nor any of its affiliates provided a monetary or non-monetarybenefit other than is permitted by NI 81-105;
(iv) neither Dundee Private Investors, Dundee Securities nor the Future AffiliatedDealers provided an incentive to the Representative to recommend a DynamicFund over a Third Party Fund, other than as is permitted by NI 81-105;
(v) the amount of the Proprietary Rebate is determined by the Representative andthe client;
(vi) the Representative who makes the Proprietary Rebate is not and will not bereimbursed directly or indirectly for such payment by Dynamic or any affiliateother than through the commissions (including trailing commissions) earned bythe Representative on the purchase of the Dynamic Fund;
AND PROVIDED FURTHER that:
(vii) Representatives are not and shall not in the future be subject to quotas (eitherexpress or implied) in respect of the distribution of Dynamic Funds and shallcontinue to be entitled to sell Third Party Funds;
(viii) a Representative who makes a Proprietary Rebate is employed by or on contractwith a dealer that is an affiliate of Dynamic registered in the jurisdiction in whichthe Proprietary Rebate is paid.
AND PROVIDED FURTHER that this Decision Document shall cease to beoperative with respect to a Decision Maker following the entry into force of a rule of thatDecision Maker that replaces or amends section 7.1 of NI 81-105.
April 28th, 2000.
"J. A. Geller" "Theresa McLeod"