ING Investment Management, Inc. - s. 121(2)(a)(ii)

Order

Headnote

Relief from self-dealing prohibition of the Act to allow in specie transfers of securities between managed accounts of related parties and pooled fund - relief from requirement that management report transactions between related companies and pooled fund - ss. 117(1)(a), 118(2)(b) and 121(2)(a)(ii) of Securities Act , R.S.O. 1990, c.S.5, as amended.

Applicable Legislative Provisions

Securities Act , R.S.O. 1990, c. S.5, as am., ss. 117(1)(a), 118(2)(b), 121(2)(a)(ii).

October 10, 2008

IN THE MATTER OF

THE SECURITIES ACT,

R.S.O. 1990, CHAPTER S.5, AS AMENDED

AND

IN THE MATTER OF

ING INVESTMENT MANAGEMENT, INC.

 

ORDER

(clause 121(2)(a)(ii))

WHEREAS the Ontario Securities Commission has received an application (the "Application") from ING Investment Management, Inc. (the "Filer") for an order pursuant to clause 121(2)(a)(ii) of the Securities Act (Ontario) (the "Securities Act") for relief from the prohibition in paragraphs 117(1)(a) and 118(2)(b) of the Securities Act in connection with certain contributions to be made by ING Insurance Company of Canada, ING Novex Insurance Company of Canada, The Nordic Insurance Company of Canada, Trafalgar Insurance Company of Canada and Belair Insurance Company (each an "Existing Company" and collectively, the "Existing Companies") to a limited partnership formed under the laws of Ontario (the "Partnership") and possible contributions to be made to the Partnership by other insurance subsidiaries of ING Canada Inc. (the "Future Companies") in the future (the Existing Companies and the Future Companies are collectively referred to herein as the "Companies");

AND WHEREAS it has been represented by the Filer that:

1. The Filer, a wholly-owned subsidiary of ING Canada Inc. ("ING Canada"), is registered as, inter alia, an adviser under the categories of investment counsel and portfolio manager with the Ontario Securities Commission.

2. The Filer currently manages the investment portfolios of the Existing Companies, each of which is a wholly-owned subsidiary of ING Canada, and in the future the Filer may manage the investment portfolios of the Future Companies.

3. The Existing Companies are insurance companies that are regulated by either the Office of the Superintendent of Financial Institutions ("OSFI") or l' Autorité des marchés financiers (the "AMF"). The Existing Companies have received authorization from OSFI and the AMF to proceed with the restructuring step set out below.

4. Pursuant to a restructuring, each Existing Company proposes to contribute over time a part of its investment portfolio to the Partnership. The general partner of the Partnership is a wholly-owned subsidiary of ING Canada.

5. The Partnership is a mutual fund in Ontario as that term is defined in the Securities Act.

6. The Partnership does not intend to become a reporting issuer, as such term is defined in the Securities Act, and its securities will not be listed on any stock exchange.

7. It is intended that the Existing Companies will be the initial limited partners of the Partnership and that Future Companies may become additional limited partners of the Partnership.

8. At any time, one or more Companies could be related persons or companies of the Partnership as they may be substantial securityholders of the Partnership and because ING Canada, a substantial securityholder of the Filer, has or will have a significant interest in each of them. In addition, the Companies may be responsible persons as such term is defined in subsection 118(1) of theSecurities Act.

9. The Filer will be retained as the investment manager of the Partnership and will have discretionary authority to manage the assets of the Partnership.

10. The proposed contributions to the Partnership from the Companies will be consistent with the investment objectives and strategies of the Partnership and will be eligible investments for the Partnership.

11. The proposed contributions to the Partnership will take place at the prevailing market price of the securities of the portfolios based on public quotations in common use for the market facilities through which the portfolio securities are traded.

12. In the absence of an exemption from the Filing Requirements, the Filer would be required to file a report for every contribution to the Partnership by a Company if the Company is a related person or company of the Partnership at the time of the contribution.

13. In the absence of an exemption from the Responsible Person Requirements, the Filer would not be permitted to cause each Company and the investment portfolio of the Partnership to purchase or sell the securities of any issuer from or to the account of the Partnership or a Company, respectively;

AND WHEREAS the Commission is satisfied that the test contained in the Securities Act that provides the Commission with the jurisdiction to make the Order has been met;

IT IS ORDERED pursuant to clause 121(2)(a)(ii) that paragraph 118(2)(b) of the Securities Act shall not apply so as to prevent contributions to the Partnership by the Companies and that paragraph 117(1)(a) of the Securities Act shall not apply so as to require the reporting by the Filer of the contributions to the Partnership to the extent otherwise required.

"Wendell S. Wigle"
Commissioner
Ontario Securities Commission
 
"Suresh Thakrar"
Commissioner
Ontario Securities Commission