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Brandes Investment Partners & Co. et al. - MRRS Decision
Headnote
Investment by Top Funds in securities of UnderlyingFunds under common management on a cost basis, as defined inthe Income Tax Act (Canada), for specified purpose exemptedfrom the reporting requirements and self-dealing prohibitionsof clauses 111(2)(b), 111(3) and clauses 117(1)(a) and (d).
Percentage of one Top Fund's assets investedin Underlying Funds limited to the foreign property limit underthe Income Tax Act (Canada) for registered plans.
Statutes Cited
Securities Act (Ontario), R.S.O. 1990 c. S.5,as am., 111(2)(b), 111(3), 117(1)(a), and 117(1)(d).
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,SASKATCHEWAN, ONTARIO,
NOVA SCOTIA AND NEWFOUNDLANDAND LABRADOR
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
BRANDES INVESTMENT PARTNERS& CO.,
BRANDES CANADIAN EQUITY FUND
AND
BRANDES CANADIAN BALANCEDFUND
MRRS DECISION DOCUMENT
WHEREAS the Canadian securities regulatoryauthority or regulator (collectively, the "Decision Makers")in each of the provinces of British Columbia, Alberta, Saskatchewan,Ontario, Nova Scotia and Newfoundland and Labrador (collectively,the "Jurisdictions") has received an application fromBrandes Investment Partners & Co. ("Brandes" orthe "Manager") in its own capacity and on behalf ofthe Brandes Canadian Equity Fund and the Brandes Canadian BalancedFund and other mutual funds managed by Brandes after the dateof this Decision (defined herein) having an investment strategythat involves investing in one or more mutual funds managedby Brandes for foreign property exposure while remaining eligiblefor Registered Plans (defined herein) (individually, a "TopFund", collectively, the "Top Funds") for a decisionpursuant to the securities legislation of the Jurisdictions(the "Legislation") that the following provisionsof the Legislation (the "Applicable Requirements")shall not apply to a Top Fund or Brandes, as the case may be,in respect of certain investments to be made from time to timeby a Top Fund in units of Brandes Global Equity Fund, BrandesInternational Equity Fund, Brandes U.S. Equity Fund and suchother mutual funds managed by Brandes after the date of thisDecision (individually, an "Underlying Fund, collectively,the "Underlying Funds") from time to time:
(a) the restrictions contained in the Legislationprohibiting a mutual fund from knowingly making or holdingan investment in a person or company in which the mutualfund, alone or together with one or more related mutualfunds, is a substantial securityholder; and
(b) the requirements contained in the Legislationrequiring a management company or, in British Columbia,a mutual fund manager, to file a report relating to a purchaseor sale of securities between the mutual fund and any relatedperson or company, or any transaction in which, by arrangementother than an arrangement relating to insider trading inportfolio securities, the mutual fund is a joint participantwith one or more of its related persons or companies.
AND WHEREAS pursuant to the Mutual RelianceReview System ("MRRS") for Exemptive Relief Applications(the "System"), the Ontario Securities Commissionis the principal regulator for this application.
AND WHEREAS it has been represented byBrandes to the Decision Makers that:
1. Brandes is a corporation incorporated underthe laws of the Province of Nova Scotia and is or will bethe Manager and trustee of the Top Funds and the UnderlyingFunds (collectively, the "Brandes Funds"). Brandes'head office is located in Toronto, Ontario.
2. Each Top Fund and Underlying Fund is orwill be an open-ended mutual fund trust established underthe laws of the Province of Ontario. Units of each of theBrandes Funds are or will be qualified for distribution inall provinces and territories of Canada pursuant to a simplifiedprospectus and annual information form filed with and acceptedby the Decision Makers.
3. Each of the Brandes Funds is or will bea reporting issuer in each of the provinces and territoriesof Canada and is not or will not be in default of any requirementsof the Legislation.
4. Each of the Top Funds seeks or will seekto achieve its investment objective while ensuring that itssecurities do not constitute "foreign property"under the Income Tax Act (Canada) (the "ITA")for registered retirement savings plans, registered retirementincome funds, deferred profit sharing plans and similar plans("Registered Plans"). Each of the Top Funds is orwill be a "registered investment" for RegisteredPlans under the ITA.
5. The investment objectives of the UnderlyingFunds are or will be achieved through investment primarilyin foreign securities.
6. As part of achieving its investment objective,each Top Fund seeks to obtain foreign content exposure byinvesting fixed percentages (the "Fixed Percentages")of its assets (other than cash or cash equivalents) on a costamount basis (as defined under the Income Tax Act (Canada)(the "ITA")) in units of one or more UnderlyingFunds, subject to a variation of 1.0 percent above or belowthe Fixed Percentages (the "Permitted Ranges").
7. The aggregate of the Fixed Percentages(including the upper Permitted Range) at any time will notexceed an amount, expressed as a percentage, prescribed fromtime to time under the ITA as the maximum amount of foreignproperty that may be held by a Registered Plan determinedas if such time were the end of a month (the "PermittedAggregate Investment").
8. Each Top Fund will invest its assets inaccordance with the Fixed Percentages and the Permitted AggregateInvestment.
9. The simplified prospectus for the Top Fundswill disclose the name, investment objectives, investmentstrategies, risks and restrictions of the Top Funds and theapplicable Underlying Funds, the Fixed Percentages and PermittedRanges.
10. The investments by the Top Fund in securitiesof the Underlying Funds represent the business judgement of"responsible persons" (as defined in the Legislation)uninfluenced by considerations other than the best interestsof the Top Fund.
11. Except to the extent evidenced by thisDecision and specific approvals granted by the Decision Makerspursuant to National Instrument 81-102 Mutual Funds ("NI81-102"), the investments by the Top Funds in the UnderlyingFunds have been structured to comply with the investment restrictionsof the Legislation and NI 81-102.
12. In the absence of this Decision, pursuantto the Legislation, each Top Fund is prohibited from knowinglymaking or holding an investment in a person or company inwhich the mutual fund, alone or together with one or morerelated mutual funds, is a substantial securityholder. Asa result, in the absence of this Decision each Top Fund wouldbe required to divest itself of any such investments.
13. In the absence of the Decision, the Legislationrequires Brandes to file a report on every purchase or saleof units of the Underlying Funds by a Top Fund.
AND WHEREAS pursuant to the System thisMRRS Decision Document evidences the decision of each DecisionMaker (collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the tests contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers pursuantto the Legislation is that the Applicable Requirements shallnot apply so as to prevent the Top Funds from making and holdingan investment in securities of the Underlying Funds or requireBrandes to file a report relating to the purchase or sale ofsuch securities;
PROVIDED IN EACH CASE THAT:
1. the Decision, as it relates to the jurisdictionof a Decision Maker, will terminate one year after the publicationin final form of any legislation or rule of that DecisionMaker dealing with matters in section 2.5 of NI 81-102.
2. the Decision shall only apply if, at thetime a Top Fund makes or holds an investment in the UnderlyingFunds, the following conditions are satisfied:
(a) the securities of both the Top Fundand the Underlying Funds are being offered for sale in thejurisdiction of the Decision Maker pursuant to a simplifiedprospectus and annual information form which have been filedwith and accepted by the Decision Maker;
(b) the investment by the Top Fund in theUnderlying Funds is compatible with the fundamental investmentobjectives of the Top Fund;
(c) the simplified prospectus disclosesthe intent of the Top Fund to invest in securities of theUnderlying Funds, the names of the Underlying Funds, theFixed Percentages and the Permitted Ranges within whichsuch Fixed Percentages may vary;
(d) the Underlying Funds are not mutualfunds whose investment objective includes investing directlyor indirectly in other mutual funds;
(e) the Top Fund invests its assets (exclusiveof cash and cash equivalents) in the Underlying Funds inaccordance with the Fixed Percentages disclosed in the simplifiedprospectus and in accordance with the Permitted AggregateInvestment;
(f) if the Fixed Percentages and the UnderlyingFunds which are disclosed in the simplified prospectus havebeen changed, either the Top Fund's simplified prospectushas been amended or a new simplified prospectus has beenfiled to reflect the change, and the security holders ofthe Top Fund have been given at least 60 days' notice ofthe change;
(g) there are compatible dates for the calculationof the net asset value of the Top Fund and the UnderlyingFunds for the purpose of the issue and redemption of thesecurities of such mutual funds;
(h) no sales charges are payable by theTop Fund in relation to its purchases of securities of theUnderlying Funds;
(i) no redemption fees or other chargesare charged by an Underlying Fund in respect of the redemptionby the Top Fund of securities of the Underlying Fund ownedby the Top Fund;
(j) no fees or charges of any sort are paidby the Top Fund and the Underlying Funds, by their respectivemanagers or principal distributors, or by any affiliateor associate of any of the foregoing entities, to anyonein respect of the Top Fund's purchase, holding or redemptionof the securities of the Underlying Funds;
(k) the arrangements between or in respectof the Top Fund and the Underlying Funds are such as toavoid the duplication of management fees;
(l) any notice provided to securityholdersof an Underlying Fund as required by applicable laws orthe constating documents of that Underlying Fund is deliveredby the Top Fund to its securityholders;
(m) all the disclosure and notice materialprepared in connection with a meeting of securityholdersof the Underlying Funds and received by the Top Fund areprovided to its securityholders, the securityholders arepermitted to direct a representative of the Top Fund tovote its holdings in the Underlying Fund in accordance withtheir direction, and the representative of the Top Funddoes not vote its holdings in the Underlying Funds exceptto the extent the securityholders of the Top Fund have directed;
(n) in addition to receiving the annualand, upon request, the semi-annual financial statementsof the Top Fund, securityholders of a Top Fund are providedappropriate summary disclosure in respect of the Top Fund'sholdings of securities of the Underlying Funds in the financialstatements of the Top Fund; and
(o) to the extent that the Top Fund andthe Underlying Funds do not use a combined simplified prospectusand annual information form containing disclosure aboutthe Top Fund and the Underlying Funds, copies of the simplifiedprospectus and annual information form of the UnderlyingFunds are provided upon request to securityholders of theTop Fund, and the right to receive these documents is disclosedin the simplified prospectus of the Top Fund.
November 5, 2002.
"Mary Theresa McLeod" "KerryD. Adams"