Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Approval granted for change of manager of investment funds -- change of manager is not detrimental to securityholders or the public interest -- change of manager to be approved by the funds' securityholders at a special meeting of the securityholders -- National Instrument 81-102 Investment Funds.

Applicable Legislative Provisions

National Instrument 81-102 Investment Funds, s. 5.5(1)(a).

July 30, 2019

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 FORESTERS ASSET MANAGEMENT INC. (the Filer or FAM) AND IN THE MATTER OF IMAXX SHORT TERM BOND FUND, IMAXX CANADIAN BOND FUND, IMAXX EQUITY GROWTH FUND, IMAXX CANADIAN FIXED PAY FUND, IMAXX CANADIAN DIVIDEND PLUS FUND, IMAXX GLOBAL FIXED PAY FUND, (collectively, the Funds)

DECISION

Background

The Ontario Securities Commission (the Commission) has received an application from the Filer for an order under the securities legislation of Ontario (the Legislation) for approval of the proposed change of manager of the Funds from the Filer to Fiera Capital Corporation (FCC) pursuant to section 5.5(1)(a) of National Instrument 81-102 Investment Funds (NI 81-102) (the Requested Approval).

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

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

b) the Filer has 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 and Newfound-land and Labrador (together with Ontario, the Jurisdictions).

Interpretation

Terms defined in National Instrument 14-101 Definitions, MI 11-102, and NI 81-102 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:

The Current Manager

1. The Filer is a corporation amalgamated under the laws of Canada. The Filer's head office is located in Toronto, Ontario.

2. The Filer is registered as an investment fund manager in Ontario, Newfoundland and Labrador and Québec, as a portfolio manager in each of the provinces of Canada, and as an exempt market dealer in Ontario and Québec.

3. The Filer is the investment fund manager and portfolio manager of each of the Funds.

4. The Filer acts as exempt market dealer in respect of securities of Foresters Asset Management Canadian Bond Pool and in respect of non-prospectus-qualified securities of the Funds, and acts as portfolio manager in respect of discretionary-managed accounts for institutional investors.

5. The Filer is not in default of any requirements of applicable securities legislation.

The Funds

6. The Funds are open-end mutual funds structured as trusts established under the laws of Ontario and governed by an amended and restated master trust agreement dated February 21, 2017, as amended on May 18, 2017 and August 20, 2018.

7. RBC Investor Services Trust acts as trustee, registrar, custodian, record keeper and valuation agent of the Funds.

8. Each of the Funds is authorized to issue an unlimited number of transferrable, redeemable trust units of one or more classes.

9. Each of the Funds is a reporting issuer in each of the Jurisdictions and offers its securities to the public pursuant to a simplified prospectus, annual information form and fund facts, each dated May 15, 2019, as amended May 24, 2019.

10. None of the Funds is in default of any requirements of applicable securities legislation.

Fiera Capital Corporation

11. FCC is a corporation established under the laws of Ontario. FCC's head office is located in Montreal, Québec.

12. FCC is a reporting issuer in each of the provinces of Canada. The common shares of FCC are listed for trading on the Toronto Stock Exchange under the symbol "FSZ".

13. FCC is registered as an investment fund manager in Ontario, Newfoundland and Labrador and Québec, as a portfolio manager and an exempt market dealer in each of the provinces and territories of Canada, as an adviser in Manitoba, as a commodity trading manager in Ontario and as a derivatives portfolio manager in Québec.

14. FCC's primary business is to act as portfolio manager in respect of institutional, retail and private wealth clients. It acts as manager and portfolio manager of various pooled funds sold pursuant to exemptions from the prospectus requirement, as portfolio manager in respect of discretionary managed account clients, as manager and, in some cases, portfolio manager of certain closed-end funds and as manager and portfolio manager of a commodity pool (that will shortly convert to an alternative mutual fund).

15. FCC is not in default of any requirements of applicable securities legislation.

Details of the Proposed Transaction

16. On May 15, 2019, FCC announced that it had entered into a definitive purchase agreement with Foresters Life Insurance Company (FLIC), the parent company of the Filer, pursuant to which FCC will acquire all of the outstanding shares of the Filer from FLIC (the Proposed Transaction).

17. Following closing of the Proposed Transaction (the Closing), FCC will incorporate the FAM business into its existing Canadian operations, including by effecting certain changes to FAM's senior officers and directors and portfolio managers, as well as by way of an amalgamation of FCC and FAM to be completed prior to December 31, 2019. Accordingly, the Proposed Transaction will result in a change of investment fund manager of the Funds (the Change of Manager).

18. Pursuant to paragraph 5.1(1)(b) of NI 81-102, special meetings of the unitholders of the Funds will be held on or about August 9, 2019 for the purpose of seeking approval of the Proposed Transaction (the Meetings). The notice of Meetings and the management information circular in respect of the Meetings (the Circular) will be mailed to unitholders of the Fund and copies thereof will be filed on SEDAR in accordance with applicable securities legislation. The Circular contains sufficient information regarding the business, management and operations of FCC, including details of its officers and directors, and all information necessary to allow unitholders to make an informed decision about the Proposed Transaction. All other information and documents necessary to comply with applicable proxy solicitation requirements of securities legislation for the Meetings will be mailed to unitholders of the Funds.

Impact of the Change of Manager

19. Following Closing, the directors and officers of FAM will be as listed below, each of whom is currently an officer of FCC other than Pamela Brenman, who is currently the Chief Compliance Officer of FAM:

(i) Jean-Philippe Lemay -- Chief Executive Officer, Ultimate Designated Person and Director;

(ii) Vincent Duhamel -- President and Director;

(iii) Dominic Grimard -- Chief Financial Officer and Director; and

(iv) Pamela Brenman -- Chief Compliance Officer.

20. Following Closing the portfolio managers responsible for management of the Funds' assets will be as follows:

Fund

Post-Closing Portfolio Managers

imaxx Short Term Bond Fund

Imran Chaudhry

Kon-Yu Lau

imaxx Canadian Bond Fund

Imran Chaudhry

Kon-Yu Lau

imaxx Canadian Fixed Pay Fund

Imran Chaudhry

Kon-Yu Lau

Nessim Mansoor

imaxx Canadian Dividend Plus Fund

Nessim Mansoor

Nadim Rizk

imaxx Equity Growth Fund

Nessim Mansoor

Nadim Rizk

imaxx Global Fixed Pay Fund

Imran Chaudhry

Kon-Yu Lau

Nadim Rizk

21. Following Closing, FCC may also make adjustments to the investment strategies of the Funds to align with its investment approach. FCC has no current intention to change the investment objectives of the Funds.

22. At the Meetings, unitholders of the Funds will be asked to approve an amendment to the relevant trust agreement to allow the manager to effect a change of auditor without unitholder approval (the Trust Agreement Amendment) and, for any Funds where unitholders do not approve the Trust Agreement Amendment, unitholders of such Funds will be asked to approve a change in auditor from Ernst & Young LLP to PricewaterhouseCoopers LLP, (the Change of Auditor). As a result, following Closing, it is proposed that the auditor of the Funds will change from Ernst & Young LLP to PricewaterhouseCoopers LLP, subject to delivery of all necessary notices.

23. Following Closing, FCC intends to have RBC Investor Services Trust continue as trustee, registrar, custodian, record keeper and valuation agent of the Funds.

24. The Filer referred the Proposed Transaction to the Independent Review Committee (IRC) of the Funds on May 6, 2019 and the Trust Agreement Amendment and the Change of Auditor to the IRC on June 20, 2019, in each case pursuant to Section 5.1(2) of National Instrument 81-107 -- Independent Review Committee for Investment Funds (NI 81-107). The IRC determined that the Proposed Transaction, the Trust Agreement Amendment and the Change of Auditor would each achieve a fair and reasonable result for each of the Funds.

25. The Filer and FCC, and not the Funds, will bear all costs and expenses associated with calling and holding the Meetings and implementing the Proposed Transaction, including legal fees, filing fees and other expenses associated with preparing, printing and mailing the meeting materials and obtaining necessary regulatory approvals.

26. The Proposed Transaction will not adversely affect FCC's financial position or its ability to fulfill its regulatory obligations.

27. Upon Closing, the individuals that comprise the IRC of the Funds will cease to be members by operation of section 3.10(1)(c) of NI 81-107. Immediately following Closing, the new members of the imaxx Funds' IRC will be the same individuals that comprise the IRC for the pooled funds managed by FCC, namely: Robert F. Kay (Chair), Charles R. Moses and Jerry Patava.

28. Upon Closing, the individuals that will be principally responsible for the investment fund management of the Funds will have the requisite integrity and experience as contemplated under section 5.7(1)(a)(v) of NI 81-102.

29. Closing of the Proposed Transaction is expected to be completed in or about the third quarter of 2019. Closing is subject to the satisfaction of certain closing conditions, including:

(i) customary conditions of closing; and

(ii) the Requested Approval.

30. The Requested Approval will not be detrimental to the protection of investors in the Funds or prejudice the public interest.

Decision

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 Requested Approval is granted, provided that the Filer obtains the prior approval of securityholders of the Funds for the Proposed Transaction.

"Darren McKall"
Manager, Investment Funds and Structured Products Branch
Ontario Securities Commission