Securities Law & Instruments

Headnote

Exemption for pooled funds from the requirementto file with the Commission interim financial statements undersection 77(2) of the Act and comparative financial statementsunder section 78(1) of the Act, subject to conditions.

Statutes Cited

Securities Act, R.S.O. 1990, c. S.5 as am.,ss. 74(1).

National Instrument 13-101 -- System for ElectronicDocument Analysis and Retrieval (SEDAR), s. 2.1(1)1.

Regulations Cited

Regulation made under the Securities Act, R.R.O.Reg. 1015, as am.

IN THE MATTER OF

THE SECURITIES ACT (ONTARIO),

R.S.O. 1990, CHAPTER S.5 ASAMENDED

(THE "ACT")

AND

IN THE MATTER OF

TD ASSET MANAGEMENT INC.

AND

THE FUNDS LISTED ON SCHEDULEA

(The "Existing PooledFunds")

 

ORDER

(Subsection 147 of the Act)

UPON the application (the "Application")of TD Asset Management Inc. ("TDAM"), the managerof the Existing Pooled Funds and other pooled funds establishedand managed by TDAM from time to time (collectively, the "PooledFunds"), to the Ontario Securities Commission (the "Commission")for an order pursuant to subsection 147 of the Act exemptingthe Pooled Funds from filing with the Commission the interimand annual financial statements prescribed by sections 77(2)and 78(1), respectively, of the Act;

AND UPON considering the Applicationand the recommendation of the staff of the Commission;

AND UPON TDAM having represented to theCommission that:

1. TDAM is a corporation existing under thelaws of Ontario with its head office in Toronto, Ontario.TDAM is, or will be, the manager of the Pooled Funds. TDAMis registered under the Act as an adviser in the categoriesof investment counsel and portfolio manager and a limitedmarket dealer and under the Commodity Futures Act (Ontario)in the category of commodity trading manager.

2. The Pooled Funds are, or will be, open-endmutual fund trusts established under the laws of Ontario.The Pooled Funds will not be reporting issuers in any provinceor territory of Canada. Units of the Pooled Funds are, orwill be, distributed in each of the provinces and territoriesof Canada without a prospectus pursuant to exemptions fromthe prospectus delivery requirements of applicable securitieslegislation.

3. The Pooled Funds represent an administrativelyefficient model that is designed to permit TDAM to build largerinvestment portfolios rather that reproduce those same portfoliosin individual segregated accounts.

4. The Pooled Funds fit within the definitionof "mutual fund in Ontario" in section 1(1) of theAct and are thus required to file with the Commission interimfinancial statements under section 77(2) of the Act and comparativeannual financial statements under section 78(1) of the Act(collectively, the "Financial Statements").

5. Unitholders of the Pooled Funds ("Unitholders")receive the Financial Statements for the Pooled Funds theyhold. The Financial Statements are prepared and deliveredto Unitholders in the form and for the periods required underthe Act and the regulation or rules made thereunder (the "Regulation").TDAM and the Pooled Funds will continue to rely on subsection94(1) of the Regulation and will omit statements of portfoliotransactions from the Financial Statements (such statementsfrom which the statements of portfolio transactions have beenomitted, the "Permitted Financial Statements").

6. As required by subsection 94(1) of theRegulation, the Permitted Financial Statements will containa statement indicating that additional information as to portfoliotransactions will be provided to a Unitholder without chargeon request to a specified address and,

(a) the omitted information shall be sentpromptly and without charge to each Unitholder that requestsit in compliance with the indication; and

(b) where a person or company requests thatsuch omitted information be sent routinely to that Unitholder,the request shall be carried out while the information continuesto be omitted from the subsequent Financial Statements unitthe Unitholder requests, or agrees to, termination of thearrangement or is no longer a Unitholder.

7. Section 2.1(1)1 of National Instrument13-101 - System for Electronic Document Analysis and Retrieval(SEDAR) ("Rule 13-101") requires that every issuerrequired to file a document under securities legislation makeits filing through SEDAR. The Financial Statements filed withthe Commission thus become publicly available.

AND UPON the Commission being satisfiedthat to do so would not be prejudicial to the public interest,

IT IS ORDERED by the Commission pursuantto subsection 147 of the Act that the Pooled Funds be exemptedfrom the requirements in sections 77(2) and 78(1) of the Actto file the Financial Statements with the Commission provided:

(a) In the absence of other regulatory relief,the Pooled Funds will prepare and deliver to the Unitholdersof the Pooled Funds the Permitted Financial Statements, inthe form and for the periods required under the Act and theRegulation;

(b) The Pooled Funds will retain the FinancialStatements indefinitely;

(c) The Pooled Funds will provide the FinancialStatements to the Commission or any member, employee or agentof the Commission immediately upon request of the Commissionor any member, employee or agent of the Commission;

(d) The Pooled Funds will provide a list ofthe Pooled Funds relying on this Order to the Investment FundsBranch of the Commission on an annual basis;

(e) Unitholders of the Pooled Funds will benotified that the Pooled Funds are exempted from the requirementsin sections 77(2) and 78(1) of the Act to file the FinancialStatements with the Commission;

(f) In all other aspects, the Pooled Fundswill comply with the requirements in Ontario securities lawfor financial statements; and

(g) This decision, as it relates to the Commission,will terminate after the coming into force of any legislationor rule of the Commission dealing with the matters regulatedby sections 77(2) and 78(1) of the Act.

August 29, 2003.

"Wendell S. Wigle"
"H. Lorne Morphy"

 

SCHEDULE A

POOLED FUNDS

Emerald Pooled Fund Trusts
Emerald Canadian Bond Pooled Fund Trust
Emerald Canadian Large Cap Pooled Fund Trust
Emerald Canadian Small Cap Pooled Fund Trust
Emerald Canadian Equity Market Pooled FundTrust
Emerald Hedged Synthetic U.S. Equity PooledFund Trust
Emerald Unhedged Synthetic U.S. Equity PooledFund Trust
Emerald Long Bond Pooled Fund Trust
Emerald Canadian Bond Duration Tilt PooledFund Trust
Emerald Hedged Synthetic International EquityPooled Fund Trust
Emerald Unhedged Synthetic International EquityPooled Fund Trust
Emerald Global Equity Pooled Fund Trust
Emerald Enhanced Canadian Equity Pooled FundTrust
Emerald Canadian Mid Cap Pooled Fund Trust
Emerald Canadian Equity Market Pooled FundTrust II
Emerald Extended U.S. Market Pooled Fund Trust
Emerald Canadian Market Capped Pooled FundTrust
Emerald Enhanced Canadian Market Capped PooledFund Trust
Emerald Canadian Real Return Bond Pooled FundTrust
Emerald Enhanced Canadian Bond Pooled FundTrust
Emerald Pooled U.S. Fund
Emerald Enhanced U.S. Equity Pooled Fund Trust
 
Emerald Private Capital
Emerald Private Capital Investment Trust
 
Emerald Hedge Fund Trusts
Emerald Canadian Equity Market Neutral Fund
Emerald U.S. Large Cap Equity Market NeutralFund
Emerald North American Equity Long/Short Fund
 
TD Harbour Pooled Funds
TD Harbour Capital Canadian Balanced Fund
TD Harbour Capital Foreign Balanced Fund
TD Harbour Capital Balanced Fund
 
Lancaster Pooled Funds
Lancaster Balanced Fund II
Lancaster Fixed Income Fund II
Lancaster Canadian Equity Fund
Lancaster Global (Ex-Canada) Fund
Lancaster Money Market Fund
Lancaster Short Bond Fund