Securities Law & Instruments

Headnote

NP 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Coordinated Review -- The relief provides an exemption, pursuant to section 233 of Regulation 1015 (the Regulation) made under the Securities Act (Ontario) from the prohibition in section 227(2)(b)(ii) of the Regulation. The prohibition prevents a registrant, when acting as a portfolio manager with discretionary authority, from providing advice with respect to a client's account to purchase and/or sell the securities of a related issuer or a connected issuer of the registrant, unless the registrant (i) secures the specific and informed written consent of the client once in each twelve month period and (ii) provides the client with its statement of policies.

Statutes Cited

Regulation 1015 made under the Securities Act (Ontario), ss. 227(2)(b)(ii), 233.

March 4, 2009

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ONTARIO, NEW BRUNSWICK, NOVA SCOTIA

AND NEWFOUNDLAND AND LABRADOR

(the Jurisdictions)

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

MCLEAN BUDDEN LIMITED

(the Filer)

 

DECISION

Background

The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for a decision (the Exemptive Relief Sought) under the securities legislation of the Jurisdictions (the Legislation) exempting the Filer from the prohibition that a registrant shall not act as an adviser in respect of securities of the registrant or of a related issuer of the registrant or, in the course of a distribution, in respect of securities of a connected issuer of the registrant (the Related/Connected Issuer Prohibition) unless, before acquiring discretionary authority and once within each twelve month period thereafter, (i) a statement of policies of the registrant is provided to the client (the Statement of Policies Requirement), and (ii) the specific and informed written consent of the client to invest in related or connected issuers of the registrant has been obtained (the Annual Consent Requirement) in the case of the Filer acting as a portfolio manager where the Filer purchases or sells, under its discretionary authority in connection with its managed account programs, securities of Sun Life Financial Inc. (Sun Life) and its affiliates for the client's managed account.

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

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

(b) the decision is the decision of the principal regulator and evidences the decision of each other Decision Maker.

Interpretation

Terms defined in 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 is a corporation incorporated under the laws of Canada. The head office of the Filer is located in Ontario.

2. The Filer is registered under the Securities Act (Ontario) (the Act) as an adviser in the categories of investment counsel and portfolio manager (and in equivalent categories in the Non-Principal Jurisdictions). In addition, the Filer is registered under the Act as a dealer in the category of limited market dealer.

3. As part of its portfolio management business, the Filer manages, on a fully discretionary basis, assets of institutional and high net worth clients who enter into an investment management agreement (the Management Agreement) with the Filer (the Managed Accounts Program).

4. The Management Agreement authorizes the Filer to exercise discretion in managing the client's investments by investing in a variety of securities, which may include mutual or pooled funds managed by the Filer and securities of Sun Life and its affiliates. Under the Management Agreement, clients have the ability to set constraints regarding the securities that may or may not be purchased by the Filer for the client's account.

5. The Related/Connected Issuer Prohibition prohibits a registrant, such as the Filer, from acting as an adviser of securities of the registrant, or of a related issuer of the registrant, or in the course of a distribution in respect of securities of a connected issuer of the registrant.

6. The Annual Consent Requirement and the Statement of Policies Requirement, to the extent applicable, exempts a registrant from the Related/Connected Issuer Prohibition.

7. Sun Life and its affiliates are related issuers to the Filer by virtue of the fact that the Filer is an indirect subsidiary of Sun Life through the direct holding by Sun Life Global Investments Inc. of 14,483 of the class B voting shares (representing 64.5% of the outstanding voting shares) of the Filer.

8. As a result of this relationship, the Filer is prohibited from including securities of Sun Life and its affiliates in client accounts under the Managed Accounts Program, unless the Filer complies with the Annual Consent Requirement and the Statement of Policies Requirement. Clients thereby may be prevented from investing in securities of Sun Life and its affiliates, even where the inclusion of these securities would be in the best interests of the client.

9. All clients in the Managed Accounts Program receive a statement of policies that lists the related issuers of the Filer when the client enters into the Management Agreement. In the event of a significant change in its statement of policies, the Filer will provide each of its clients a copy of the revised version of, or amendment to, its statement of policies.

10. The Filer will disclose, in writing, to each of its clients in the Managed Accounts Program, the relationship between the Filer and Sun Life and its affiliates.

11. Under the Management Agreement, clients who participate in the Managed Accounts Program specifically authorize the Filer to invest in securities of Sun Life and its affiliates.

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 under the Legislation is that the Exemptive Relief Sought is granted to the Filer provided that:

(a) the Filer has secured the specific and informed written consent of the client in advance of the exercise of discretionary authority on behalf of the client in respect of securities of Sun Life and its affiliates;

(b) the Filer has previously provided the client with a statement of policies or equivalent document of the Filer, which identified the relationship between the Filer, Sun Life and its affiliates; and

(c) all investment decisions of the Filer to invest in securities of Sun Life or its affiliates are uninfluenced by considerations other than the best interest of the client.

"Suresh Thakrar"
Commissioner
Ontario Securities Commission
 
"Paul K. Bates"
Commissioner
Ontario Securities Commission