Securities Law & Instruments

Headnote

Mutual Reliance Review System for Exemptive Relief Applications -- Relief granted to allow mutual funds to short sell up to 20% of net assets, subject to certain conditions - Prior short selling exemption revoked - National Instrument 81-102 Mutual Funds.

Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, ss. 2.6(a), 2.6(c), 6.1(1), 19.1.

November 16, 2007

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ONTARIO, ALBERTA, SASKATCHEWAN, MANITOBA,

BRITISH COLUMBIA, QUÉBEC, NEW BRUNSWICK,

NOVA SCOTIA, NEWFOUNDLAND AND LABRADOR,

PRINCE EDWARD ISLAND

(the "Jurisdictions")

AND

IN THE MATTER OF

THE MUTUAL RELIANCE REVIEW SYSTEM

FOR EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF

CRESTSTREET ASSET MANAGEMENT LIMITED

(the "Filer")

AND

IN THE MATTER OF

CRESTSTREET RESOURCE CLASS

CRESTSTREET MANAGED INCOME CLASS

CRESTSTREET MANAGED EQUITY INDEX CLASS

CRESTSTREET ALTERNATIVE ENERGY CLASS

(collectively, the "Existing Funds" and,

individually, an "Existing Fund")

 

MRRS DECISION DOCUMENT

Background

The local securities regulatory authority or regulator (the "Decision Maker") in each of the Jurisdictions has received an application from the Filer, on behalf of the Existing Funds and other mutual funds established and managed by the Filer or an affiliate of the Filer after the date of this decision (the "Future Funds" and together with the Existing Funds, the "Funds"), for a decision under the securities legislation of the Jurisdictions (the "Legislation")

(a) revoking the Prior Short Selling Exemption (as defined below) and replacing it with this decision; and

(b) exempting the Funds from the following requirements of the Legislation (the "Requested Relief"), subject to certain terms and conditions:

(i) the requirement contained in paragraph 2.6(a) of National Instrument 81-102 Mutual Funds ("NI 81-102") prohibiting a mutual fund from providing a security interest over a mutual fund's assets;

(ii) the requirement contained in paragraph 2.6(c) of NI 81-102 prohibiting a mutual fund from selling securities short; and

(iii) the requirement contained in subsection 6.1(1) of NI 81-102 prohibiting a mutual fund from depositing any part of a mutual fund's assets with an entity other than the mutual fund's custodian.

Under the Mutual Reliance Review System ("MRRS") for Exemptive Relief Applications:

(a) the Ontario Securities Commission is the principal regulator for this application; and

(b) this MRRS decision document evidences the decision of each Decision Maker.

Interpretation

Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless they are defined in this decision.

Representations

This decision is based on the following facts represented by the Filer:

1. The Filer is a company incorporated under the laws of Canada and is or will be the manager of the Funds.

2. Each Existing Fund is a class of shares of Creststreet Mutual Funds Limited, a mutual fund corporation established under the Canada Business Corporations Act.

3. Each Fund is or will be a reporting issuer in each of the Jurisdictions. A preliminary simplified prospectus and annual information form dated October 19, 2007 for the Creststreet Alternative Energy Fund has been filed with the Decision Makers.

4. The Filer proposes that each Fund be authorized to engage in a limited, prudent and disciplined amount of short selling, up to a maximum of 20% of net assets of each Fund on a daily marked-to-market basis. The Filer is of the view that the Funds could benefit from the implementation and execution of a controlled and limited short selling strategy. This strategy would operate as a complement to the Funds' current primary discipline of buying securities with the expectation that they will appreciate in market value.

5. Under a MRRS decision dated November 3, 2004 (the "Prior Decision"), three of the Existing Funds, namely Creststreet Resource Class, Creststreet Managed Income Class and Creststreet Managed Equity Index Class (together, the "Prior Decision Funds") were granted relief from the requirements in sections 2.6(a), 2.6(c) and 6.1(1) of NI 81-102 so as to be able to sell securities short up to 10% of total assets on a daily marked-to-market basis, subject to certain conditions (the "Prior Short Selling Exemption"). The Prior Decision also granted the Creststreet Resource Fund an exemption from section 10.3 of NI 81-102.

6. The Filer wishes to increase the Prior Decision Funds' ability to engage in short sales from 10% to 20% of net assets of each Fund on a daily marked-to-market basis. The Filer also wishes for the Creststreet Alternative Energy Fund and all Future Funds to have the ability to short sell up to 20% of net assets. The Filer therefore requests that the Prior Short Selling Exemption granted under the Prior Decision be revoked and replaced with this decision.

7. In order to effect a short sale, a Fund will borrow securities from either its custodian or a dealer (in either case, the "Borrowing Agent"), which Borrowing Agent may be acting either as principal for its own account or as agent for other lenders of securities.

8. Each Fund will implement the following controls when conducting a short sale:

(a) securities will be sold short for cash, with the Fund assuming the obligation to return to the Borrowing Agent the securities borrowed to effect the short sale;

(b) the short sale will be effected through market facilities through which the securities sold short are normally bought and sold;

(c) the Fund will receive cash for the securities sold short within normal trading settlement periods for the market in which the short sale is effected;

(d) the securities sold short will be "liquid securities" in that:

(i) the securities will be listed and posted for trading on a stock exchange, and

A. the issuer of the security will have a market capitalization of not less than CDN$100 million, or the equivalent thereof, at the time the short sale is effected; or

B. the investment advisor will have pre-arranged to borrow for the purposes of such short sale; or

(ii) the securities will be bonds, debentures or other evidences of indebtedness of or guaranteed by:

A. the Government of Canada or any province or territory of Canada; or

B. the Government of the United States of America;

(e) at the time securities of a particular issuer are sold short:

(i) the aggregate market value of all securities of that issuer sold short by the Fund will not exceed 5% of the net assets of the Fund; and

(ii) the Fund will place a "stop-loss" order with a dealer to immediately purchase for the Fund an equal number of the same securities if the trading price of the securities exceeds 120% (or such lesser percentage as the Manager may determine) of the price at which the securities were sold short;

(f) the Fund will deposit Fund assets with the Borrowing Agent as security in connection with the short sale transaction;

(g) the Fund will keep proper books and records of all short sales and Fund assets deposited with Borrowing Agents as security;

(h) the Fund will develop written policies and procedures for the conduct of short sales prior to conducting any short sales; and

(i) the Fund will provide disclosure in its prospectus of the short selling strategies and the details of this exemptive relief prior to implementing the short selling strategy.

Decision

Each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the decision has been met.

The decision of the Decision Makers under the Legislation is that the Prior Short Selling Exemption is revoked and that the Requested Relief is granted provided that in respect of each Fund:

1. the aggregate market value of all securities sold short by the Fund does not exceed 20% of the net assets of the Fund on a daily marked-to-market basis;

2. the Fund holds "cash cover" (as defined in NI 81-102) in an amount, including the Fund assets deposited with Borrowing Agents as security in connection with short sale transactions, that is at least 150% of the aggregate market value of all securities sold short by the Fund on a daily marked-to-market basis;

3. no proceeds from short sales by the Fund are used by the Fund to purchase long positions in securities other than cash cover;

4. the Fund maintains appropriate internal controls regarding its short sales including written policies and procedures, risk management controls and proper books and records;

5. for short sale transactions in Canada, every dealer that holds Fund assets as security in connection with short sale transactions by the Fund shall be a registered dealer in Canada and a member of a self-regulatory organization that is a participating member of the Canadian Investor Protection Fund;

6. any short sale made by the Fund is subject to compliance with the investment objective of the Fund;

7. the Requested Relief will not apply to a Fund that is classified as a money market fund or a short-term income fund;

8. for short sale transactions outside of Canada, every dealer that holds Fund assets as security in connection with short sale transactions by the Fund shall:

(a) be a member of a stock exchange and, as a result, be subject to a regulatory audit; and

(b) have a net worth in excess of the equivalent of CDN$50 million determined from its most recent audited financial statements that have been made public;

9. except where the Borrowing Agent is the Fund's custodian, when the Fund deposits Fund assets with a Borrowing Agent as security in connection with a short sale transaction, the amount of Fund assets deposited with the Borrowing Agent does not, when aggregated with the amount of Fund assets already held by the Borrowing Agent as security for outstanding short sale transactions of the Fund, exceed 10% of the total assets of the Fund, taken at market value as at the time of the deposit;

10. the security interest provided by a Fund over any of its assets that is required to enable the Fund to effect short sale transactions is made in accordance with industry practice for that type of transaction and relates only to obligations arising under such short sale transactions;

11. prior to conducting any short sales, the Fund discloses in its simplified prospectus a description of: (a) short selling, (b) how the Fund intends to engage in short selling, (c) the risks associated with short selling, and (d) in the Investment Strategy section of the simplified prospectus, the Fund's strategy and this exemptive relief;

12. prior to conducting any short sales, the Fund discloses in its annual information form the following information:

(a) that there are written policies and procedures in place that set out the objectives and goals for short selling and the risk management procedures applicable to short selling;

(b) who is responsible for setting and reviewing the policies and procedures referred to in the preceding paragraph, how often the policies and procedures are reviewed, and the extent and nature of the involvement of the board of directors in the risk management process;

(c) the trading limits or other controls on short selling in place and who is responsible for authorizing the trading and placing limits or other controls on the trading;

(d) whether there are individuals or groups that monitor the risks independent of those who trade; and

(e) whether risk measurement procedures or simulations are used to test the portfolio under stress conditions;

13. this decision shall terminate upon the coming into force of any legislation or rule of the Decision Makers dealing with matters referred to in subsections 2.6(a), 2.6(c) and 6.1(1) of NI 81-102.

"Vera Nunes"
Assistant Manager, Investment Funds Branch
Ontario Securities Commission