Investment by RSP fund in securities of another mutual fund that is under commonmanagement for specified purpose exempted from the reporting requirements and self-dealing prohibitions of clauses 111(2)(a), 111(3) and clauses 117(a) and (d).
Investment by the RSP Fund in forward contracts issued by related counterparties or itsaffiliates exempted from the requirements of clause 111(2)(c) and 118(2)(a), subject tospecified conditions.
Securities Act (Ontario), R.S.O. 1990 c.S.5, as am., 111(2)(a), 111(2)(c), 111(3),117(1)(a), 117(1)(d), 117(2), 118(2)(a) and 121(2)(a).
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
ELLIOTT & PAGE LIMITED, ELLIOTT & PAGE RSP GLOBAL EQUITY FUND
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "DecisionMaker") in each of British Columbia, Alberta, Saskatchewan, Ontario, Québec, NovaScotia and Newfoundland (the "Jurisdictions") has received an application from Elliott &Page Limited ("EPL"), as manager and trustee of Elliott & Page RSP Global EquityFund (the "RSP Global Equity Fund") and other mutual funds managed by EPL afterthe date of this Decision having an investment objective or strategy that is linked to thereturns or portfolio of another specified Elliott & Page mutual fund while remaining100% eligible for registered plans (together with the RSP Global Equity Fund, the "RSPFunds") for a decision by each Decision Maker (collectively, the "Decision") under thesecurities legislation of the Jurisdictions (the "Legislation") that the following provisionsin the Legislation (the "Applicable Requirements") shall not apply to the RSP Funds orEPL, as the case may be, in respect of certain investments to be made by RSP GlobalEquity Fund in Elliott & Page Global Equity Fund (the "Global Equity Fund") and byother RSP Funds in their applicable corresponding Elliott & Page mutual fund from timeto time (together with the Global Equity Fund, the "Underlying Funds"):
i. the provisions requiring the management company of a mutual fund to file areport relating to the purchase or sale of securities between the mutual fund andany 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;
ii. the provisions prohibiting a mutual fund from knowingly making and holding aninvestment in a person or company in which the mutual fund, alone or togetherwith one or more related mutual funds, is a substantial security holder;
iii. the provisions prohibiting a mutual fund from knowingly making and holding aninvestment in an issuer in which any person or company who is a substantialsecurity holder of the mutual fund, its management company or distributioncompany has a significant interest;
iv. the provisions prohibiting a portfolio manager from knowingly causing aninvestment portfolio managed by it to invest in any issuer in which a "responsibleperson" (as that term is defined in the Legislation) is an officer or director, unlessthe specific fact is disclosed to the client and, if applicable, the written consent ofthe client to the investment is obtained before the purchase.
AND WHEREAS under the Mutual Reliance Review System for Exemptive ReliefApplications (the "System"), the Ontario Securities Commission is the principalregulator for this application;
AND WHEREAS EPL has represented to the Decision Makers as follows:
1. EPL is a corporation established under the laws of Ontario and its head officeand registered office are located in the Province of Ontario. EPL is or will be themanager, trustee and promoter of the RSP Funds and the Underlying Funds(collectively, the "Funds").
2. The Funds are or will be open-end mutual fund trusts established under the lawsof Ontario. The Advisor Class units, the Class F units and the Class T units ofthe Funds are or will be qualified in all of the provinces and territories of Canada(the "Prospectus Jurisdictions") pursuant to prospectus(es) and annualinformation form(s) and each renewal prospectus(es) and annual informationform(s) (in each case, together the "Prospectus").
3. Each of the Funds is or will be a reporting issuer under the Legislation of each ofthe Prospectus Jurisdictions (other than those jurisdictions which do notrecognize reporting issuers).
4. EPL has retained ABN AMRO Asset Management Canada Limited as theportfolio sub-advisor of the Global Equity Fund.
5. The Prospectus will contain disclosure with respect to the respective investmentobjectives, investment practices and restrictions of the Funds.
6. The investment objectives of the RSP Funds are or will be to provide long-termgrowth of capital, primarily through investment in derivatives that provide areturn linked to the return of the applicable Underlying Fund. The RSP Fundswill seek to achieve their investment objective by primarily investing in:
(a) forward contracts or other derivatives that are linked to the returns earnedby the applicable Underlying Fund;
(b) bank deposits and/or money market instruments to support theirobligations under the forward contracts; and
(c) units of the applicable Underlying Fund and/or other securities whichconstitute foreign property under applicable tax legislation up to themaximum permitted amount (the "Foreign Property Maximum") which maybe invested in foreign property under the Income Tax Act (Canada) (the"Tax Act") for registered retirement savings plans and other registeredplans ("Registered Plans").
All purchases by an RSP Fund of units of the applicable Underlying Fund will bemade through EPL.
7. The investment objectives of each of the Underlying Funds is or will be achievedthrough investment primarily in foreign securities.
8. Each of the RSP Funds will make investments such that its securities will be"qualified investments" for Registered Plans under the Tax Act.
9. The direct investment by an RSP Fund in the applicable Underlying Fund (the"Permitted RSP Fund Investments") will be within the Foreign PropertyMaximum. The amount of direct investment by an RSP Fund in the applicableUnderlying Fund will be adjusted from time to time so that, except for transitionalcash, the aggregate of derivative exposure to, and direct investment in theapplicable Underlying Fund will equal 100% of the net assets of the RSP Fund.
10. The RSP Funds will enter into forward contracts with one or more financialinstitutions (each a "Counterparty").
11. In order to hedge their obligations under the forward contracts, theCounterparties will likely, but are not required to, purchase Class T Units of theapplicable Underlying Fund (or another class of units that has no managementfee). In addition, any direct investment of securities in the Underlying Funds willbe in Class T Units (or another class of units that has no management fee). TheClass T Units have no management fee, ensuring that there is no duplication ofmanagement fees as between the RSP Funds and the applicable UnderlyingFunds. Class T Units will be offered pursuant to the Prospectus. If theCounterparties do not purchase Class T Units of the Underlying Funds (oranother class of units that has no management fee), management fees will becharged at the RSP Fund level, but the amount payable to the applicable RSPFund under the forward contract will be adjusted to eliminate the duplication ofmanagement fees.
12. Manulife Financial, a financial institution which owns 100% of EPL, or an affiliateof Manulife Financial, (Manulife Financial and/or its affiliates being hereinafterreferred to as "Manulife"), may be a Counterparty.
13. Except for the transaction costs payable to Manulife in relation to any forwardcontracts with Manulife, none of the RSP Funds, the Underlying Funds, EPL orany affiliate or associate of any of the foregoing will pay any fees or charges ofany kind to any other related party in respect of a trade in such forwardcontracts.
14. The Prospectus will disclose the involvement of Manulife in acting as aCounterparty as well as all applicable charges in connection with any forwardcontracts with Manulife.
15. Except as otherwise described herein, to the extent evidenced by a Decisiongranted pursuant to this application, as well as specific approval granted by theCanadian Securities Authorities pursuant to National Instrument NI 81-102 (the"NI 81-102"), any investment by the RSP Funds in forward contracts withManulife have been or will be structured to comply with the investmentrestrictions of the Legislation and NI 81-102.
16. In the absence of this Decision, an RSP Fund is prohibited from knowinglymaking and holding an investment in the applicable Underlying Fund in whichthe RSP Fund alone or together with one or more related mutual funds is asubstantial securityholder.
17. In the absence of this Decision, an RSP Fund is prohibited from knowinglymaking and holding an investment in securities of Manulife.
18. In the absence of this decision, EPL is required to file a report on everypurchase or sale of securities of Manulife.
19. In the absence of this Decision, EPL, as portfolio manager, is prohibited fromcausing an RSP Fund to invest their assets in securities of Manulife unless thespecific fact is disclosed to investors and, if applicable, the written consent ofinvestors is obtained before the purchase.
20. The investment in, or redemption of, securities of an Underlying Fund by an RSPFund will represent the business judgement of responsible persons uninfluencedby considerations other than the best interests of the RSP Fund.
AND WHEREAS pursuant to the System, this Decision Document evidences theDecision:
AND WHEREAS each Decision Maker is satisfied that the test contained in theLegislation 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 Requirements shall not apply to EPL, the RSP Funds or a portfolio sub-advisor, as the case may be, in respect of investments to be made by the RSP Funds inunits of the Underlying Funds, or in forward contracts issued by Manulife;
PROVIDED THAT IN RESPECT OF the investment by the RSP Funds in units ofthe Underlying Funds:
1. the Decision, as it relates to the jurisdiction of the Decision Maker, will terminateone year after the publication in final form of any legislation or rule of thatDecision Maker dealing with the matters in section 2.5 of NI 81-102;
2. the Decision shall apply only to investments in, or transactions with, theapplicable Underlying Fund that are made by an RSP Fund in compliance withthe following conditions:
(a) the RSP Fund and the Underlying Fund are under common managementand the Advisor Class units and Class F units of both are offered for salein the jurisdiction of each Decision Maker pursuant to the Prospectuswhich has been filed with and accepted by the Decision Maker, and theClass T units of the Underlying Fund are offered for sale in the jurisdictionof each Decision Maker pursuant to the Prospectus which has been filedwith and accepted by the Decision Maker;
(b) the RSP Fund restricts its aggregate direct investment in securities of theapplicable Underlying Fund to a percentage of its assets that is within theForeign Property Maximum;
(c) the investment by the RSP Fund in its applicable Underlying Fund iscompatible with the fundamental investment objectives of the RSP Fund;
(d) the Prospectus discloses the intent of the RSP Fund to invest in securitiesof the Underlying Fund;
(e) the RSP Fund may change the Permitted RSP Fund Investments if itchanges its fundamental investment objective in accordance with theLegislation;
(f) no sales charges are payable by the RSP Fund in relation to itspurchases of securities of the Underlying Fund;
(g) there are compatible dates for the calculation of the net asset value of theRSP Fund and the Underlying Fund for the purpose of issuing andredeeming securities of both mutual funds;
(h) no redemption fees or other charges are charged by the Underlying Fundin respect of the redemption by the RSP Fund of securities of theUnderlying Fund owned by the RSP Fund;
(i) the arrangements between or in respect of the RSP Fund and theUnderlying Fund are such as to avoid the duplication of managementfees;
(j) no fees and charges of any sort are paid by the RSP Fund, theUnderlying Fund, the manager or principal distributor of the RSP Fund orthe Underlying Fund, or by any affiliate or associate of any of theforegoing entities to anyone in respect of the RSP Fund's purchase,holding or redemption of the securities of the Underlying Fund;
(k) in the event of the provision of any notice to securityholders of theUnderlying Fund, as required by the applicable laws or the constatingdocuments of the Underlying Fund, the notice will also be delivered to thesecurityholders of the RSP Fund; all voting rights attached to thesecurities of the Underlying Fund that are owned by the RSP Fund will bepassed through to the securityholders of the RSP Fund;
(l) in the event that a meeting of the securityholders of the Underlying Fundis called, all of the disclosure and notice material prepared in connectionwith such meeting and received by the RSP Fund will be provided to thesecurityholders of the RSP Fund; and each securityholder will be entitledto direct a representative of the RSP Fund to vote that securityholder'sproportion of the RSP Fund's holding in the Underlying Fund inaccordance with his or her direction; and the representative of the RSPFund 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;
(m) in addition to receiving the annual and, upon request, the semi-annualfinancial statements of the RSP Fund, securityholders of the RSP Fundwill receive the annual and, upon request, the semi-annual financialstatements, of the Underlying Fund in either a combined report,containing both the RSP Fund's and the Underlying Fund's financialstatements, or in a separate report containing the Underlying Fund'sfinancial statements; and
(n) to the extent that the RSP Fund and the Underlying Fund do not use acombined Prospectus and financial statements containing disclosureabout the RSP Fund and the Underlying Fund, copies of the simplifiedprospectus, and annual information form and financial statementsrelating to the Underlying Fund may be obtained upon request by asecurityholder of the RSP Fund.
AND PROVIDED THAT IN RESPECT OF investments by an RSP Fund in forwardcontracts, the Decision applies to investments in forward contracts of Manulife, asCounterparty, that are made in compliance with the following conditions:
(a) the pricing terms offered by Manulife to the RSP Fund under the forwardcontracts are at least as favourable as the terms committed by Manulife toother third parties, which are of similar size as the RSP Fund;
(b) prior to the RSP Fund entering into a forward contract transaction withManulife, the independent auditors of the RSP Fund will review thepricing offered by Manulife to the RSP Fund against the pricing offered byManulife to other fund groups offering RSP funds of similar size, to ensurethat the pricing is at least as favourable;
(c) the review by the independent auditors will be undertaken not lessfrequently than on a quarterly basis and, in addition, on every renewal orpricing amendment to each forward contract, during the term of suchcontract;
(d) the RSP Fund's Prospectus discloses the independent auditors' role andtheir review of the forward contracts, as well as the involvement ofManulife; and
(e) the RSP Fund will enter into forward contracts with Manulife only onceconfirmation of favourable pricing is received from the independentauditors of the RSP Fund.
August 16th, 2000.
"J. A. Geller" "R. Stephen Paddon"