National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief granted for extension of lapse date of prospectus -- Lapse date extended due to Filer's inadvertent failure to file a pro forma prospectus not less than thirty days prior to the lapse date as per section 62(2) of the Securities Act (Ontario).
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 62(5).
April 29, 2014
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF ARROW CAPITAL MANAGEMENT INC. (the Manager) AND IN THE MATTER OF EXEMPLAR CANADIAN FOCUS PORTFOLIO AND EXEMPLAR DIVERSIFIED PORTFOLIO (collectively the Portfolios, and together with the Manager, the Filers)
The principal regulator in the Jurisdiction has received an application from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the time limits pertaining to filing a renewal prospectus of the Portfolios be extended as if the lapse date of the prospectus of the Portfolios dated April 29, 2013, as amended on December 11, 2013, (the Current Prospectus) was May 8, 2014 (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, and Yukon (the Passport Jurisdictions).
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filers:
1. The Manager is the investment fund manager and portfolio advisor of the Portfolios. The head office of the Manager is located in Toronto, Ontario.
2. The Portfolios are open-ended commodity pools, each of which is a class of shares of Exemplar Portfolios Ltd., a mutual fund corporation existing under the laws of the province of Ontario.
3. The Portfolios are reporting issuers in the Jurisdiction and each of the Passport Jurisdictions.
4. Neither the Manager nor the Portfolios are in default of the Legislation.
5. The Portfolios filed the Current Prospectus, a long form prospectus dated April 29, 2013, for which it obtained a receipt and under which it has been distributing the Portfolios' respective securities since the date of the Current Prospectus.
6. Other than material changes for which amendments to the Current Prospectus have already been filed and receipted, there have been no material changes in the affairs of the Portfolios since the date of the Current Prospectus. Accordingly, the Current Prospectus, as amended, represents current information regarding the Portfolios.
7. The lapse date for the Current Prospectus is April 29, 2014 (the Lapse Date) and, to qualify for the timelines stipulated by subsection 62(2) of the Securities Act (Ontario) (the Act), a pro forma prospectus should have been filed no later than March 30, 2014 (the Pro Forma Filing Deadline), being 30 days before the Lapse Date in accordance with subsection 62(2)(a) of the Act.
8. The Manager intended to file a pro forma prospectus on or before the Pro Forma Filing Deadline, but through inadvertence failed to do so. As soon as the Manager realized that the Pro Forma Filing Deadline had passed, it filed a pro forma prospectus (the Renewal Prospectus) as expeditiously as possible.
9. The Portfolios filed the Renewal Prospectus on April 8, 2014 under SEDAR Project No. 21912427 in connection with the continuous public offering of the securities of the Portfolios beyond the Lapse Date.
10. Subsection 62(5) of the Act provides that the Commission may, upon an application of a reporting issuer, extend, subject to such terms and conditions as it may impose, the time provided by Subsection 62(2) of the Act where in its opinion it would not be prejudicial to the public interest to do so.
11. If the Relief Sought is not granted, the Portfolios will have to cease distribution of their securities to investors after the Lapse Date.
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted.