Mutual Reliance Review System for ExemptiveRelief Applications - fund filed prospectus that contained fouryears of audited financial statements for underlying business- fund itself had not completed financial year - fund unableto use prospectus as a "current AIF" under MultilateralInstrument 45-102 - fund exempt from "current AIF"requirement, subject to conditions.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990 c. S.5, as am.
Applicable Ontario Rules
Multilateral Instrument 45-102 Resale Of Securities(2001) 24 OSCB 7029, Sections. 1.1, 4.1.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
ALBERTA, BRITISH COLUMBIA,NEWFOUNDLAND AND LABRADOR,
NORTHWEST TERRITORIES, NOVASCOTIA, NUNAVUT,
ONTARIO AND SASKATCHEWAN
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
CUSTOM DIRECT INCOME FUND
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof Alberta, British Columbia, Newfoundland and Labrador, NorthwestTerritories, Nova Scotia, Nunavut, Ontario and Saskatchewan(the "Jurisdictions") has received an applicationfrom Custom Direct Income Fund (the "Fund") for adecision under the securities legislation of the Jurisdictions(the "Legislation") that the requirement containedin the Legislation to have a "current AIF" (a "CurrentAIF") as defined in Multilateral Instrument 45-102 Resaleof Securities ("MI 45-102") filed on SEDAR tobe a "qualifying issuer" (a "Qualifying Issuer")under MI 45-102 shall not apply to the Fund;
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System")the Ontario Securities Commission is the principal regulatorfor this application;
AND WHEREAS, unless otherwise defined,the terms herein have the meaning set out in National Instrument14-101 Definitions;
AND WHEREAS the Fund has representedto the Decision Makers that:
1. The Fund is an open-ended limited purposetrust established under the laws of Ontario on March 18, 2003pursuant to a declaration of trust which was amended and restatedon May 14, 2003.
2. The head office of the Fund is locatedat 79 Wellington Street West, Toronto, Ontario, Canada, M5K1N2.
3. The authorized capital of the Fund is anunlimited number of units of which 15,613,804 units are outstanding.
4. The operations and assets of Custom Direct,Inc. (the "Custom Direct Business") constitute theonly business of the Fund and the Fund is entirely dependenton the Custom Direct Business through the indirect ownershipof its shares. Custom Direct, Inc. is not a reporting issueror the equivalent under the Legislation.
5. A decision document pursuant to NationalPolicy 43-201 Mutual Reliance Review for Prospectuses andAnnual Information Forms was issued on May 16, 2003 for theFund's (final) prospectus dated May 15, 2003 (the "Prospectus").
6. Since the Fund had not completed a fullfinancial year, the Prospectus did not include audited financialstatements for the Fund's most recently completed financialyear. The Prospectus did include (a) audited combined financialstatements of the Custom Direct Business for the years endedDecember 31, 2002, 2001, 2000 and 1999 and (b) unaudited proforma consolidated financial statements of the Fund for theyear ended December 31, 2002 giving effect to the acquisitionby the Fund of 80% of the Custom Direct Business from MDC.
7. The Fund is a reporting issuer or its equivalentin each of the Jurisdictions. The Fund is not in default ofits reporting issuer obligations under the Legislation.
8. The units of the Fund are listed and postedfor trading on The Toronto Stock Exchange.
9. To be a Qualifying Issuer under MI 45-102,the Fund must have a Current AIF that contains audited financialstatements for the issuer's most recently completed financialyear filed on SEDAR.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that the requirement contained in the Legislationto have a Current AIF filed on SEDAR in order to be a QualifyingIssuer under MI 45-102 shall not apply to the Fund providedthat:
(a) the Fund files a notice on SEDAR advisingthat it has filed the Prospectus as an alternative form ofannual information form and identifying the SEDAR projectnumber under which the Prospectus was filed;
(b) the Fund, or a selling securityholderin the case of a control distribution, files a Form 45-102F2on or before the tenth day after the distribution date ofany securities certifying that the Fund is a Qualifying Issuerexcept for the requirement that it have a Current AIF; and
(c) this Decision expires on the earlier of(i) the 140th day after completion of the Fund's financialyear ending December 31, 2003; and (ii) the date that theFund files an Annual Information Form in the form requiredby Form 44-101F1 in each of the provinces and territoriesof Canada.
July 29, 2003.