Securities Law & Instruments

Headnote

One time trade of securities between a non-redeemable investment fund and an affiliated fund, both advised by the same portfolio manager, to implement a merger -- costs of the merger borne by the manager -- sale of securities exempt from the self-dealing prohibitions in paragraph s.13.5(2)(b)(iii), National Instrument 31-103 -- Registration Requirements and Exemptions.

Applicable Legislative Provisions

National Instrument 31-103 -- Registration Requirements and Exemptions, s.13.5(2)(b)(iii), 15.1.

May 3, 2010

IN THE MATTER OF

THE SECURITIES LEGISLATION OF QUÉBEC

AND ONTARIO (THE JURISDICTIONS)

AND

IN THE MATTER OF THE

PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

STANTON ASSET MANAGEMENT INC.

(THE FILER)

AND

O'LEARY GLOBAL INFRASTRUCTURE FUND

(THE TERMINATING FUND)

AND

O'LEARY GLOBAL INFRASTRUCTURE YIELD FUND

(THE CONTINUING FUND, AND TOGETHER WITH

THE TERMINATING FUND, THE FUNDS)

DECISION

Background

The securities regulatory authority or regulators in each of the Jurisdictions (Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) for exemptive relief from Section 13.5(2)(b)(iii) of National Instrument 31-103 -- Registration Requirements and Exemptions (NI 31-103) in connection with the transfer of the investment portfolio of the Terminating Fund to the Continuing Fund in order to implement the merger (the Merger) of O'Leary Global Infrastructure Fund with O'Leary Global Infrastructure Yield Fund (the Exemption Sought).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):

(a) L'Autorité des marchés financiers is the principal regulator (the Principal Regulator) for this application;

(b) the decision is the decision of the Principal Regulator and evidences the decision of the securities regulatory authority or regulator in Ontario; and

(c) the Filer has provided notice that section 4.7(2) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Prince Edward Island, Nova Scotia and Newfoundland and Labrador.

Interpretation

Terms defined in MI 11-102 and National Instrument 14-101 -- Definitions have the same meaning if used in this decision, unless otherwise defined.

Representations

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

1. The Filer intends to merge the Terminating Fund into the Continuing Fund which will involve the transfer of assets of the Terminating Fund in exchange for series X units (the Series X Units) of the Continuing Fund. Holders of units of the Terminating Fund (Unitholders) will receive Series X Units, the value of which will be equal to the net asset value (NAV) of the units held by such Unitholder.

2. The Filer is a corporation existing under the Business Corporations Act (Canada) and is registered as a portfolio manager under the securities legislation of each of Québec and Ontario.

3. At the time that the Merger steps are completed, the Filer will manage the investment portfolios of each of the Terminating Fund and the Continuing Fund.

4. Each Fund was established pursuant to a declaration of trust under the laws of the Province of Ontario and the Filer is the portfolio manager of each Fund.

5. The Terminating Fund is a "non-redeemable investment fund" as defined in the Legislation and the units of the Terminating Fund (the Class A Units) are listed on the Toronto Stock Exchange (TSX).

6. The Continuing Fund is a mutual fund for the purposes of the Legislation and offers its Series A, F, H, I, M and X units pursuant to an amended and restated simplified prospectus dated December 22, 2009, as further amended on March 26, 2010.

7. The head office of the Filer is located in Québec. The Filer is not in default of securities legislation in any jurisdiction.

8. The Funds are reporting issuers under the applicable securities legislation of each province of Canada and are not on the list of defaulting reporting issuers maintained under such securities legislation.

9. Unless an exemption has been obtained, each of the Funds follows the standard investment restrictions and practices established under the applicable securities legislation of each province of Canada.

10. The NAV for units of the Terminating Fund and for units of the Continuing Fund is calculated on a daily basis on each day that the TSX is open for trading.

11. The board of directors of O'Leary Funds Management Inc., the general partner of the manager of the Funds, O'Leary Funds Management LP (the Manager), approved the Merger and a press release and material change report in respect of the Merger were filed on SEDAR on March 16, 2010 and March 17, 2010, respectively.

12. The Merger will be effected in accordance with the "permitted merger" provision set out in the declaration of trust of the Terminating Fund dated October 29, 2008 (the Terminating Fund Declaration). This provision provides that the Manager may, without obtaining Unitholder approval and subject to TSX approval, merge the Terminating Fund with another fund or funds, provided that:

(a) the fund(s) with which the Fund is merged must be managed by the Manager or an affiliate of the Manager (the Affiliated Fund(s));

(b) Unitholders are permitted to redeem their Class A Units at a redemption price equal to 100% of the NAV per Class A Unit, less any costs of funding the redemption, including commissions, prior to the effective date of the merger;

(c) the funds being merged have similar investment objectives as set forth in their respective declarations of trust, as determined in good faith by the Manager and by the manager of the Affiliated Funds in their sole discretion;

(d) the Manager must have determined in good faith that there will be no increase in the management expense ratio borne by the Unitholders as a result of the merger;

(e) the merger of the funds is completed on the basis of an exchange ratio determined with reference to the NAV per unit of each fund; and

(f) the merger of the funds must be capable of being accomplished on a tax-deferred rollover basis for unitholders of each of the funds.

If the Manager determines that a merger is appropriate and desirable, the Manager can effect the merger, including any required changes to the Terminating Fund Declaration, without seeking Unitholder approval for the merger or such amendments. If a decision is made to merge, the Manager will issue a press release at least thirty (30) business days prior to the proposed effective date thereof disclosing details of the proposed merger.

13. As required by National Instrument 81-107 -- Independent Review Committee for Investment Funds (NI 81-107), an Independent Review Committee (IRC) has been appointed for the Funds, and the Filer presented the terms of the Merger to the IRC for a recommendation. The IRC considered the proposed Merger and approved the proposed merger on the basis that the Merger would achieve a fair and reasonable result for each of the Funds.

14. It is proposed that the Merger will occur on or about June 1, 2010 (the Merger Date), subject to regulatory approval.

15. All costs and expenses associated with the Merger will be borne by the Manager. No sales charges, redemption fees or other fees or commissions will be payable by unitholders of the Funds in connection with the Merger.

16. Subject to regulatory approval, the Merger will be implemented on a tax-deferred basis after the expiry of the annual redemption notice period of the Terminating Fund.

17. The Merger is expected to take place using the following steps:

(a) Effective as of close of business on May 4, 2010, the Class A Units of the Terminating Fund will be de-listed from the TSX.

(b) On the Merger Date, the Terminating Fund will transfer all of its assets (other than such assets as are sufficient to satisfy its liabilities) to the Continuing Fund in exchange for Series X Units, the value of which will be equal to the NAV of the Terminating Fund transferred to the Continuing Fund, calculated as of the close of business on the Merger Date.

(c) Immediately thereafter, the Series X Units of the Continuing Fund will be distributed to unitholders of the Terminating Fund and the Unitholder's units of such Terminating Fund will be redeemed and cancelled. Each Unitholder will receive Series X Units of the applicable Continuing Fund, the value of which will be equal to the NAV of the units of the Terminating Fund previously held by the Unitholder as of the close of business on the Merger Date. Once the Merger is completed on or about June 1, 2010, subscriptions for additional investments and redemptions of the Continuing Fund will be made via FundSERV. Determination by the Manager of the exchange ratio with reference to NAV per unit of the Terminating Fund and NAV per unit of the Continuing Fund will be made as at the close of business on May 31, 2010.

(d) Subsequent to completion of the Merger, the Terminating Fund will be wound up and terminated.

(e) The Filer will issue a press release forthwith after the Merger is completed announcing the completion of the Merger and the respective ratios by which units of the Terminating Fund were exchanged for Series X Units.

18. The Terminating Fund is and the Continuing Fund will be a mutual fund trust under the Income Tax Act (Canada) (Tax Act) and, accordingly, units of all of the Funds are "qualified investments" under the Tax Act for registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans, registered education savings plans and tax-free savings accounts.

19. The Filer is a "responsible person" as a result of being the portfolio manager of the Funds.

20. The transfer of the investment portfolio of the Terminating Fund to the Continuing Fund (and the corresponding purchase of such investment portfolio by the Continuing Fund) as a step in the Merger may be considered a purchase or sale of securities, knowingly caused by a registered adviser that manages the investment portfolio of the applicable Funds, from or to the investment portfolio of an investment fund for which a "responsible person" acts as an adviser, contrary to NI 31-103.

21. In the absence of this order, the Filer would be prohibited from purchasing and selling the securities of the Terminating Fund (and thereby transferring their investment portfolios to the Continuing Fund) in connection with the Merger.

22. In the opinion of the Filer, the Merger will not adversely affect unitholders of the Terminating Fund or the Continuing Fund and will in fact be in the best interests of Unitholders of the Terminating Fund. The Filer believes that the Merger will be beneficial to Unitholders for the following reasons:

(a) The Continuing Fund has the potential to have a larger portfolio, as the Continuing Fund will be in continuous distribution, and so should offer improved portfolio diversification to Unitholders;

(b) Series X Units of each Continuing Fund will have greater liquidity through daily purchases and redemptions of units than the Terminating Fund and the Merger will eliminate the discount to NAV for the Terminating Fund;

(c) The management fees for the units of the Terminating Fund are substantially the same as the management fees for the Series X Units of the Continuing Fund. If any difference exists between the management fees of the Fund, the fees of the Continuing Fund will be lower than those of the Terminating Fund; and

(d) The Continuing Fund allows greater unitholder flexibility with respect to switches, reclassifications and conversions.

Decision

Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.

The decision of the Decision Makers is that the Exemption Sought is granted provided that:

(a) upon a request by a Unitholder for financial statements, the Filer will make best efforts to provide the unitholder with financial statements of the Continuing Fund; and

(b) the Terminating Fund and the Continuing Fund with respect to a Merger have an unqualified audit report in respect of their last completed financial period.

“Mario Albert”
Superintendent, Client Services, Compensation and Distribution