Securities Law & Instruments

Headnote

Item E(1) of Appendix C of OSC Rule 13-502 Fees -- exemption for pooled funds from paying an activity fee of $5,500 in connection with an application brought under subsection 147 of the Act, provided an activity fee be paid on the basis that the application be treated as an application for other regulatory relief under item E(3) of Appendix C of the Rule.

Rules Cited

Ontario Securities Commission Rule 13-502, Fees, (2003) 26 OSCB 891.

Securities Act, R.S.O. 1990, c. S.5 as am., ss. 77(2) and ss. 78(1).

National Instrument 13-101 -- System for Electronic Document Analysis and Retrieval (SEDAR), s. 2.1(1)1.

February 19, 2004

Stikeman Elliott LLP
5300 Commerce Court West
199 Bay Street
Toronto, ON M5L 1B9

Attention: Ms. Justine Plenkiewicz

Dear Sirs/Mesdames:

Re:
C.A. Delaney Capital Management Ltd.
Application for Exemptive Relief under OSC Rule 13-502 Fees
(the "Rule" or "Rule 13-502")
Application No. 061/04

By letter dated January 15, 2004 (the "Application"), you applied on behalf of C.A. Delaney Capital Management Ltd. (the "Company"), the manager of The Delaney Capital Equity Fund (the "Existing Pooled Fund") and other pooled funds created and managed by the Company from time to time (collectively with the Existing Pooled Fund, the "Pooled Funds"), to the Ontario Securities Commission (the "Commission") under subsection 147 of the Securities Act Ontario (the "Act") for relief from subsections 77(2) and 78(1) of the Act, which requires every mutual fund in Ontario to file interim and comparative annual financial statements (the "Financial Statements") with the Commission.

By same date and cover, you additionally applied to the securities regulatory authority in Ontario (the "Decision Maker") on behalf of the Company, the manager of the Existing Pooled Fund, for an exemption, pursuant to subsection 6.1 of Rule 13-502, from the requirement to pay an activity fee of $5,500 in connection with the Application in accordance with item E(1) of Appendix C of the Rule, on the condition that fees be paid on the basis that the Application be treated as an application for other regulatory relief under item E(3) of Appendix C of Rule 13-502.

Item E of Appendix C of Rule 13-502 specifies the activity fee applicable for applications for discretionary relief. Item E(1) specifies that applications under subsection 147 of the Act pay an activity fee of $5,500, whereas item E(3) specifies that applications for other regulatory relief pay an activity fee of $1,500.

From our review of the Application and other information communicated to staff, we understand the relevant facts and representations to be as follows:

1. The Company is a corporation existing under the laws of Ontario with its head office in Toronto, Ontario. The Company is, or will be, the manager of the Pooled Funds. The Company is registered with the Commission as an adviser in the categories of investment counsel and portfolio manager and as a limited market dealer.

2. The Pooled Funds are, or will be, open-end mutual fund trusts established under the laws of the Province of Ontario. The Pooled Funds are not and will not be reporting issuers in any province or territory of Canada. Units of the Pooled Funds are, or will be, distributed in Canada without a prospectus pursuant to exemptions from the registration and prospectus delivery requirements of applicable securities legislation.

3. The Existing Pooled Fund fits within the definition of "mutual fund in Ontario" in section 1(1) of the Act and is thus required to file Financial Statements with the Commission under subsections 77(2) and 78(1) of the Act.

4. Section 2.1(1)1 of National Instrument 13-101 -- System for Electronic Document Analysis and Retrieval (SEDAR) requires that every issuer required to file a document under securities legislation make its filing through SEDAR. The Financial Statements filed with the Commission thus become publicly available.

5. In the Application, the Company and the Pooled Funds have requested under subsection 147 of the Act relief from filing the Financial Statements with the Commission. The activity fee associated with the Application is $5,500 in accordance with item E(1) of Appendix C of Rule 13-502.

6. If the Company and the Pooled Funds had, as an alternative to the Application, sought an exemption from the requirement to file the Financial Statements via SEDAR, the activity fee for that application would be $1,500 in accordance with item E(3) of Appendix C of Rule 13-502.

7. If the Pooled Funds were reporting issuers seeking the same relief as requested in the Application, such relief could be sought under section 80 of the Act, rather than under subsection 147 of the Act, and the activity fee for that application would be $1,500 in accordance with item E(3) of Appendix C of Rule 13-502.

Decision

This letter confirms that, based on the information provided in the Application, other communications to staff, and the facts and representations above, and for the purposes described in the Application, the Decision Maker hereby exempts the Company and the Existing Pooled Fund from (i) paying an activity fee of $5,500 in connection with the Application, provided that the Company and the Existing Pooled Fund pay an activity fee on the basis that the Application be treated as an application for other regulatory relief under item E(3) of Appendix C to Rule 13-502; and (ii) paying an activity fee of $1,500 in connection with the Fees Exemption application under item E(3) of Appendix C to Rule 13-502.

"Leslie Byberg"