Mutual Reliance Review System for Exemptive Relief Application -- Extension of distribution beyond lapse date for certain funds until the effective date of the terminations or mergers of the funds.
In Ontario, application pursuant to s.6.1 of OSC Rule 13-502 Fees -- exemption from requirement to pay activity fee of $5,500 in connection with an application brought under s.147 of the Act because the application is in substance an application for a lapse date extension under s.62(5) of the Act to which an activity fee of only $1,500 should apply.
September 22, 2005
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN,
MANITOBA, ONTARIO, QUEBEC, NEW BRUNSWICK,
NOVA SCOTIA, PRINCE EDWARD ISLAND,
NEWFOUNDLAND AND LABRADOR,
YUKON AND NUNAVUT
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR
EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
TD CANADIAN GOVERNMENT BOND INDEX FUND,
TD INTERNATIONAL GROWTH FUND, TD U.S. BLUE CHIP EQUITY RSP FUND,
TD GLOBAL SELECT RSP FUND, TD EUROPEAN GROWTH RSP FUND,
TD EMERGING MARKETS RSP FUND, TD HEALTH SCIENCES RSP FUND,
TD ENTERTAINMENT & COMMUNICATIONS RSP FUND AND
TD SCIENCE & TECHNOLOGY RSP FUND
(the TD Funds)
MRRS DECISION DOCUMENT
The local securities regulatory authority or regulator (the Decision Maker) in each of the Jurisdictions has received an application (the Application) from TD Asset Management Inc. (TDAM) dated August 22, 2005, for a decision pursuant to securities legislation of the Jurisdictions (the Legislation) that the time limits pertaining to the distribution of securities under the current simplified prospectuses and annual information forms of the TD Funds dated October 1, 2004, as amended from time to time (the TD Prospectuses), be extended to permit the continued distribution of securities of the TD Funds until the effective date of the Mergers (as defined below) or Terminations (as defined below), as applicable, which shall be no later than October 31, 2005 (the Lapse Date Relief).
The Ontario Securities Commission (the OSC) has also received an application (the Fee Relief Application) for a decision pursuant to Ontario securities legislation that an exemption be granted 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 Ontario Securities Commission Rule 13-502, 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 and an exemption from the requirement to pay an activity fee of $1,500 in connection with the Fee Relief Application (collectively, the Fee Relief).
Under the Mutual Reliance Review System for Exemptive Relief Applications:
(a) the OSC is the principal regulator for the Application, and
(b) this MRRS decision document evidences the decision of each Decision Maker.
Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless they are defined in this decision.
This decision is based on the following facts represented by TDAM:
1. TDAM is a wholly-owned subsidiary of The Toronto-Dominion Bank and is registered under the Securities Act (Ontario) (the Act) as an adviser in the categories of investment counsel and portfolio manager and as a limited market dealer and under the Commodity Futures Act (Ontario) in the category of commodity trading manager.
2. TDAM is the manager of the TD Funds. Each of the TD Funds is a trust established under the laws of Ontario and is a reporting issuer as defined in the securities legislation of each province and territory of Canada and is not in default of any of the requirements of such legislation. Each of the TD Funds currently distributes its securities in each of the Jurisdictions on a continuous basis pursuant to the TD Prospectuses. The TD Prospectuses were prepared and filed in accordance with Canadian securities regulatory requirements (SEDAR project nos. 818661 and 818876).
3. The earliest lapse date of the TD Prospectuses under the Legislation is October 1, 2005.
4. There have been no material changes in the affairs of any of the TD Funds since the filing of the TD Prospectuses, other than those for which amendments have been filed or for which amendments are not required under the terms of relief granted by the Decision Makers. Accordingly, the TD Prospectuses represent current information regarding each of the TD Funds.
5. Pursuant to relief previously granted by the Decision Makers, on or before October 31, 2005, TDAM intends to terminate TD U.S. Blue Chip Equity RSP Fund, TD Global Select RSP Fund, TD European Growth RSP Fund, TD Emerging Markets RSP Fund, TD Health Sciences RSP Fund, TD Entertainment & Communications RSP Fund and TD Science & Technology RSP Fund (the Terminations). In accordance with the regulatory approval, TDAM issued a press release in connection with the Terminations on July 21, 2005.
6. Subject to regulatory and unitholder approval; which were granted on July 28, 2005 and August 24, 2005 respectively, on or about October 7, 2005, TDAM intends to merge TD Canadian Government Bond Index Fund and TD International Growth Fund with other mutual funds managed by TDAM (the Mergers). Amendments to the TD Prospectus, material change reports and press releases were filed on July 6, 2005.
7. The Terminations and Mergers will be effected in accordance with the requirements of National Instrument 81-102 and any applicable regulatory relief.
8. On August 15, 2005, renewal prospectuses were filed by TDAM for the mutual funds distributing securities under the TD Prospectuses not the subject matter of the Terminations or Mergers.
9. If the Lapse Date Relief in respect of the TD Funds is not granted, TDAM will be required to file a renewal prospectus for the TD Funds, notwithstanding that the TD Funds will be terminated prior to October 31, 2005. The financial costs and time involved in producing, filing, and printing prospectuses for the TD Funds would be unduly costly. It may also cause confusion among investors who may assume that the TD Funds continue to be available for purchase after the effective date of the Terminations or Mergers.
10. The requested lapse date extension will not affect the accuracy of the information in the TD Prospectuses and therefore will not be prejudicial to the public interest.
11. If TDAM were renewing the TD Prospectuses, rather than Terminating or Merging the TD Funds, it could have sought an extension of the lapse date applicable to the TD Prospectuses pursuant to subsection 62(5) of the Securities Act (Ontario). The activity fee in Ontario for such an application would be $1,500 in accordance with item F(3) of Appendix C of Rule 13-502.
Each of the Decision Makers is satisfied that, based on the information and representations contained in the Application and this decision that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make this decision has been met.
The decision of the Decision Makers under the Legislation is that the Lapse Date Relief is granted.
"Paul M. Moore"
"Robert L. Shirriff"
The decision of the OSC under Ontario securities legislation is that the Fee Relief is granted.
Manager, Investment Funds Branch