Securities Law & Instruments

Headnote

Exemption for pooled funds from the requirement to file with the Commission interim financial statements under section 77(2) of the Act and comparative financial statements under section 78(1) of the Act, subject to conditions.

Statutes Cited

Securities Act, R.S.O. 1990, c. S.5 as am., ss. 74(1).

Ontario Securities Commission Rule 45-501 -- Exempt Distributions, s. 1.1 and s. 2.12.

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

Regulations Cited

Regulation made under the Securities Act, R.R.O. 1990, Reg. 1015, as am.

IN THE MATTER OF

THE SECURITIES ACT (ONTARIO) R.S.O. 1990,

CHAPTER S.5 AS AMENDED (THE "ACT")

AND

IN THE MATTER OF

TREMONT CAPITAL MANAGEMENT, CORP. AND

TREMONT CORE DIVERSIFIED FUND

 

ORDER

(Subsection 147 of the Act)

UPON the application (the "Application") of Tremont Capital Management, Corp. ("Tremont"), the manager of Tremont Core Diversified Fund (the "Existing Fund") and any similar trust managed by Tremont, now or in the future (collectively with the Existing Fund, the "Funds"), to the Ontario Securities Commission (the "Commission") for an order pursuant to section 147 of the Act exempting the Funds from filing with the Commission the interim and comparative financial statements prescribed by subsections 77(2) and 78(1), respectively, of the Act;

AND UPON considering the Application and the recommendation of the staff of the Commission;

AND UPON Tremont having represented to the Commission that:

1. Tremont is a corporation existing under the laws of New Brunswick with its head office in Toronto, Ontario. Tremont is, or will be, the manager of the Funds.

2. Tremont is registered with the Commission as dealer in the category of limited market dealer, as an adviser in the categories of investment counsel and portfolio manager and as a commodity trading manager.

3. The Existing Fund is an investment trust established under the laws of the Province of Ontario. The Existing Fund is governed by a trust agreement, as amended and restated from time to time, between Tremont as manager and The Royal Trust Company as trustee. The Funds are not and will not be reporting issuers in any province or territory of Canada. Units of the Funds are, or will be, distributed in each of the provinces and territories of Canada without a prospectus pursuant to exemptions from the registration and prospectus delivery requirements of applicable securities legislation.

4. The Existing Fund's fiscal year ends on December 31st of each year.

5. The Funds fit within the definition of "mutual fund in Ontario" in subsection 1(1) of the Act and are thus required to file with the Commission interim financial statements under subsection 77(2) of the Act and comparative financial statements under subsection 78(1) of the Act (collectively, the "Financial Statements").

6. Unitholders of the Funds receive the Financial Statements for the Funds they hold. The Financial Statements are prepared and delivered to unitholders in the form and for the periods required under the Act and the regulation or rules made thereunder (the "Regulation"). Tremont and the Funds will rely on subsection 94(1) of the Regulation and will omit statements of portfolio transactions from the Financial Statements (such statements from which the statement of portfolio transactions have been omitted, the "Permitted Financial Statements").

7. As required by subsection 94(1) of the Regulation, the Permitted Financial Statements will contain a statement indicating that additional information as to portfolio transactions will be provided to a unitholder without charge on request to a specified address and,

(a) the omitted information shall be sent promptly and without charge to each unitholder that requests it in compliance with the indication; and

(b) where a person or company requests that such omitted information be sent routinely to that unitholder, the request shall be carried out while the information continues to be omitted from the subsequent Financial Statements until the unitholder requests, or agrees to, termination of the arrangement or is no longer a unitholder.

8. Paragraph 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.

AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;

IT IS ORDERED by the Commission pursuant to section 147 of the Act that the Funds be exempt from the requirements in subsections 77(2) and 78(1) of the Act to file the Financial Statements with the Commission, provided:

(a) the Funds will prepare and deliver to the unitholders of the Funds the Permitted Financial Statements, in the form and for the periods required under the Act and the Regulation;

(b) the Funds will retain the Financial Statements indefinitely;

(c) the Funds will provide the Financial Statements to the Commission or any member, employee or agent of the Commission immediately upon request of the Commission or any member, employee or agent of the Commission;

(d) Tremont will provide a list of the Funds relying on this Order to the Investment Funds Branch of the Commission on an annual basis;

(e) unitholders of the Funds will be notified that the Funds are exempted from the requirements in subsections 77(2) and 78(1) of the Act to file the Financial Statements with the Commission;

(f) in all other aspects, the Funds will comply with the requirements in Ontario securities law for financial statements; and

(g) this decision, as it relates to the Commission, will terminate after the coming into force of any legislation or rule of the Commission dealing with the matters regulated by subsection 77(2) and 78(1) of the Act.

August 27, 2004.

"Paul K. Bates"
"Robert L. Shirriff"