Securities Law & Instruments

Headnote

Mutual Reliance Review System for ExemptiveRelief Applications - Government-owned investment manager exemptedfrom early warning and insider reporting requirements providedthat it complies with reporting and filing requirements as ifit were an "eligible institutional investor" underNational Instrument 62-103.

Applicable Ontario Statutory Provisions

Securities Act, R.S.O. 1990, c. S.5, as am.,ss. 101, 104(2)(c), 107 and 121(2).

Applicable National Instruments

National Instrument 62-103 The Early WarningSystem and Related Take-over Bid and Insider Reporting Issues.

IN THE MATTER OF

THE SECURITIES LEGISLATIONOF

ALBERTA, BRITISH COLUMBIA,MANITOBA,

NEWFOUNDLAND AND LABRADOR,NOVA SCOTIA,

ONTARIO, QUEBEC, AND SASKATCHEWAN

AND

IN THE MATTER OF

THE MUTUAL RELIANCE REVIEWSYSTEM

FOR EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF

THE CANADA PENSION PLAN INVESTMENTBOARD

 

MRRS DECISION DOCUMENT

WHEREAS the Canadian securities regulatoryauthority or regulator (the "Decision Makers") ineach of Alberta, British Columbia, Manitoba, Newfoundland andLabrador, Nova Scotia, Ontario, Quebec and Saskatchewan (the"Jurisdictions") has received an application fromthe Canada Pension Plan Investment Board (the "CPP InvestmentBoard") for a decision pursuant to the securities legislationof the Jurisdictions (the "Legislation") that theCPP Investment Board be:

(i) exempt from the requirements triggeredby the acquisition of 10% or more of a class of voting orequity securities under the provisions of the Legislationlisted in Appendix B of NI 62-103 - Early Warning Systemand Related Take-Over Bid and Insider Reporting Issues ("NI62-103") (the "Early Warning Requirements");

(ii) exempt from the restrictions regardingfurther acquisitions of the securities described in (i)above under the provisions of the Legislation listed inAppendix C of NI 62-103 (the "Moratorium Requirements");and

(iii) exempt from the requirement in theLegislation for an insider of a reporting issuer to filereports disclosing the insider's direct or indirect beneficialownership of, or control or direction over, securities ofa reporting issuer (the "Insider Reporting Requirements")

provided that the CPP Investment Board complieswith, and otherwise meets, the reporting and filing requirementsand the other applicable conditions of NI 62-103, in each case,as if the CPP Investment Board is an "eligible institutionalinvestor" thereunder.

AND WHEREAS pursuant to the Mutual RelianceReview System for Exemptive Relief Applications (the "System")the Ontario Securities Commission is the principal regulatorfor this application;

AND WHEREAS the CPP Investment Boardhas represented to the Decision Makers that:

1. The CPP Investment Board was establishedas a corporation under the Canada Pension Plan InvestmentBoard Act (the "CPP Investment Board Act") andis governed by the CPP Investment Board Act and the Regulationsmade thereunder ("Regulations").

2. All of the share capital of the CPP InvestmentBoard is held by the Minister of Finance of Canada (the "Ministerof Finance").

3. The objects of the CPP Investment Boardunder the CPP Investment Board Act are to manage amounts thatare transferred to it by the Canada Pension Plan and to investits assets with a view to achieving a maximum rate of return,without undue risk of loss, having regard to the factors thatmay affect the funding of the Canada Pension Plan and theability of the Canada Pension Plan to meet its financial obligations.The CPP Investment Board does not manage any assets, otherthan those that are transferred to it under the Canada PensionPlan.

4. The CPP Investment Board is the sole providerof investment management services to the Canada Pension Plan.

5. The CPP Investment Board currently managesapproximately $14.6 billion, mostly invested in index funds,and expects to manage in excess of $130 billion in assetsby 2012.

6. The CPP Investment Board has the capacityof a natural person and its business is managed and supervisedby a board of directors (the "Board of Directors")appointed by the Governor in Council on the recommendationof the Minister of Finance.

7. The Board of Directors is required to establish,and has established, an audit committee and an investmentcommittee.

8. The Regulations establish the requirementsfor a written statement of investment policies, standardsand procedures ("Investment Statement") in respectof the CPP Investment Board's portfolio of investments, andthey also establish limitations on investments, includinga prohibition on any direct or indirect investment in thesecurities of a corporation to which are attached more than30% of the votes that may be cast to elect the directors ofthat corporation. Pursuant to the Regulations, the Board ofDirectors is required to review the Investment Statement atleast once each financial year.

9. The Board of Directors is required to sendcopies of unaudited quarterly financial statements to theMinister of Finance and the appropriate provincial Ministerswithin 45 days after the end of the three month period towhich they relate and also is required to provide the Ministerof Finance and the appropriate provincial Ministers with anannual report on the operations of the CPP Investment Board(the "Annual Report") within 90 days of the endof each financial year. The Annual Report is tabled in Parliamentand is made available to the public.

10. The Annual Report is required to include(i) audited annual financial statements in the form set outin the CPP Investment Board Act; (ii) a certificate of theBoard of Directors stating that the investments of the CPPInvestment Board held during the year were in accordance withthe CPP Investment Board Act and the Investment Statement;and (iii) the Investment Statement and information regardingthe objectives of the CPP Investment Board.

11. The Minister of Finance is required tocause a special examination to be carried out at least onceevery six years in respect of the CPP Investment Board andits subsidiaries to determine if financial and managementcontrol and information systems and management practices weremaintained in a manner that provided reasonable assurancethat (i) its assets are safeguarded and controlled; (ii) itsfinancial, human and physical resources are managed economicallyand efficiently; and (iii) its operations are carried outeffectively. The Minister of Finance is required to consultwith the appropriate provincial Ministers before a specialexamination is to be carried out. In addition, the Ministerof Finance may, at any time, appoint an auditor to conducta special audit of the CPP Investment Board or any of itssubsidiaries.

12. The CPP Investment Board provides investmentmanagement services to the Canada Pension Plan which are comparableto the services provided by "investment managers",as that term is defined in NI 62-103. However, the CPP InvestmentBoard is not an investment manager for purposes of NI 62-103because the CPP Investment Board is not, and is not requiredto be, registered as an "adviser" under the Legislation.Therefore, the CPP Investment Board is not an "eligibleinstitutional investor" under NI 62-103.

AND WHEREAS pursuant to the System thisMRRS Decision Document evidences the decision of each DecisionMaker (collectively, the "Decision");

AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make thedecision has been met;

THE DECISION of the Decision Makers pursuantto the Legislation is that the CPP Investment Board be exemptfrom the Early Warning Requirements, the Moratorium Requirementsand the Insider Reporting Requirements provided that the CPPInvestment Board complies with, and meets, the applicable reportingand filing requirements and other applicable conditions enumeratedin NI 62-103, in each case, as if the CPP Investment Board isan "eligible institutional investor" thereunder.

October 25, 2002.

"Theresa McLeod"                    "RobertL. Shirriff"