National Policy 11-203 -- Process for Exemptive Relief Applications in Multiple Jurisdictions -- relief from self-dealing prohibition of the Act to allow in specie transfers between pooled funds and separately managed accounts -- ss. 118(2)(b) and 121(2)(a)(ii) of Securities Act, R.S.O. 1990, c. S.5, as am.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 118(2)(b), 121(2)(a)(ii).
July 28, 2009
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
MONDRIAN INVESTMENT PARTNERS LIMITED
MRRS DECISION DOCUMENT
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the "Legislation") that the prohibitions contained in the Legislation that prohibits a portfolio manager from knowingly causing an investment portfolio managed by it to purchase or sell the securities of any issuer from or to the account of a responsible person, any associate of a responsible person or the portfolio manager (the "Self-Dealing Prohibition") shall not apply to effect certain transfers of securities between Separately Managed Accounts and the Funds ("In Specie Transfers"), all as defined below.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions:
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in , Alberta, Saskatchewan, New Brunswick, and Nova Scotia.
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning in this decision unless they are defined in this decision.
This decision is based on the following facts represented by the Filer:
1. The Filer is a corporation organized under the laws of England and Wales. The Filer is registered in England with the Financial Services Authority and in the United States with the Securities and Exchange Commission. The Applicant is registered in Ontario as an international adviser, in Alberta as a portfolio manager and investment counsel (foreign) and in Manitoba as a securities adviser. The principal office of the Filer is 10 Gresham Street, London EC2V 7JD, United Kingdom.
2. The Filer currently acts as portfolio manager of certain institutional segregated accounts in Ontario and in a number of other Canadian provinces. The Filer provides discretionary portfolio management services to Canadian clients pursuant to investment management agreements between the clients and the Filer ("Managed Account Agreements").
3. The Filer also acts as the investment manager of Mondrian Emerging Markets Equity Fund and Mondrian International Small Cap Equity Fund (collectively, the "Existing Funds"). The Existing Funds, together with any other mutual or pooled funds established in the future for which the Filer is a portfolio manager from time to time, are collectively hereinafter referred to as the "Funds".
4. As the Filer is not a resident of Canada and Canadian institutional clients desired to have Canadian resident pooled funds available to them, Brockhouse Cooper Asset Management Inc. ("BCAM"), BCAM agreed with the Filer to act as the manager of the Existing Funds. Each of the Funds is or will be an open-end mutual fund trust established under the laws of the Province of Ontario. The Funds are not and will not be reporting issuers in any province or territory of Canada.
5. Based on the size of the assets of the clients and depending on the allocation of a client's assets to a particular asset class, the Filer may manage the client's assets either on a segregated account basis ("Separately Managed Accounts") or on a pooled basis.
6. Pursuant to its Managed Account Agreements with its clients, the Filer has full authority to provide its portfolio management services, including investing clients in mutual funds for which the Filer is the portfolio manager and for changing those funds as the Filer determines in accordance with the mandate of the clients. To the extent the Filer either currently does not have such authority or enters into an agreement with a new client, the Filer will obtain the prior specific written consent of the relevant Separately Managed Account client before it engages in any In Specie Transfers, as defined below, in connection with the purchase or redemption of units of the Funds for its Separately Managed Accounts.
7. Pursuant to its Managed Account Agreements with its clients, the Filer has full authority to provide its portfolio management services, including investing clients in mutual funds for which the Filer is the portfolio manager and for changing those funds as the Filer determines in accordance with the mandate of the clients. To the extent the Filer either currently does not have such authority or enters into an agreement with a new client, the Filer will obtain the prior specific written consent of the relevant Separately Managed Account client before it engages in any In Specie Transfers, as defined below, in connection with the purchase or redemption of units of the Funds for its Separately Managed Accounts.
8. The Filer may determine that, in lieu of holding securities in a Separately Managed Account, the clients would be better served to be invested in one or more of the Funds. As a result, the Filer desires to have such clients subscribe in kind for units of the relevant Funds, where appropriate. Further, future clients of the Filer may have an existing portfolio of securities when they retain the Filer such that the Filer may similarly desire to have the clients subscribe for the Funds in kind provided these securities are appropriate for the Fund.
9. In addition, due to portfolio changes for a client, the Filer may determine, in connection with a redemption, to redeem in kind certain portfolio securities held by a Fund. Alternatively, the client may determine to terminate its relationship with the Filer or to change its mandate and may request an in kind redemption of its units in a Fund.
10. To ensure that neither the Separately Managed Accounts nor a Fund incurs significant expenses related to the disposition and acquisition of portfolio securities in connection with the purchase or redemption of units of a Fund, the Filer proposes to facilitate such purchases and redemptions of Fund units by transfers in kind of portfolio securities between a Separately Managed Account and a Fund ("In Specie Transfers"). These transactions will either involve the payment of the purchase price for units of a Fund or the payment of the redemption price of units of a Fund by In Specie Transfers between the Separately Managed Account and the Funds.
11. Effecting such internal cross-trades of securities between the Separately Managed Accounts and the Funds will allow the Filer to manage each asset class more effectively and reduce transaction costs for the client and the Fund. For example, cross-trading reduces market impact costs, which can be detrimental to the clients and/or the Fund(s). Cross-trading also allows a portfolio manager to retain within its control institutional-size blocks of securities that otherwise would need to be broken and re-assembled. Such securities often are those that trade in lower volumes, with less frequency, and have larger bid-ask spreads.
12. The Filer will issue a statement of policies to clients setting out the relationship of the Funds to the Filer. In addition, clients specifically will consent to invest in the Funds either separately or pursuant to the terms of their Managed Account Agreements.
13. The only cost which will be incurred by a Fund or Separately Managed Account for an In Specie Transfer is a nominal administrative charge levied by the custodian of the Separately Managed Account or Fund in recording the trades (the "Custodial Charge") and the brokerage commissions or other costs, if any, necessary to effect any re-registration of the delivered securities required as a result of the local practices of any particular market (the "Re-registration Charge"). Re-registration Charges for In Specie Transfers are generally more cost-effective than the brokerage commissions or other costs necessary to effect purchases and redemptions of Fund units in cash between a Separately Managed Account and a Fund.
14. The Filer will value the securities under an In Specie Transfer using the same values to be used on that day to calculate the net asset value for the purpose of the purchase or sale of the portfolio securities and for the purpose of the issue price or redemption price of a unit of a Fund.
15. None of the securities which are the subject of In Specie Transfers are or will be securities of related issuers of the Filer.
16. Prior to executing an In Specie Transfer, it will be reviewed by the Filer's Board of Directors to ensure that the conditions of the exemptive relief are or will be met at the time of the transaction and to determine that the transaction represents the business judgment of the Filer acting in its discretionary capacity with respect to the Fund and the Separately Managed Account, uninfluenced by considerations other than the best interests of the Fund or the Separately Managed Account.
17. Since the Filer is the portfolio manager of the Separately Managed Accounts, it would be considered a "responsible person" within the meaning of subsection 118(1) of the Act with respect to such Separately Managed Accounts. Each of the Funds is an associate of the Filer within the meaning of paragraph (c) of the definition of "associate" contained in subsection 1(1) of the Act because the Filer and BCAM serve in a similar capacity to a trustee in respect of the Funds.
18. In the absence of the order, the Filer would be prohibited by the Self Dealing Prohibition from: (a) causing a Separately Managed Account to make In Specie Transfers of securities of any issuer to a Fund in payment of the purchase price for units of a Fund subscribed for by the Separately Managed Account; and (b) causing the Fund to make In Specie Transfers of securities of any issuer to a Separately Managed Account in payment of the redemption price for units of the Fund redeemed by a Separately Managed Account.
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator is that the Self-Dealing Prohibition shall not apply to the Filer in connection with the payment of the purchase price or redemption price of units of a Fund by In Specie Transfers between the Funds and the Separately Managed Accounts, provided that:
(a) in connection with the purchase of units of a Fund by a Separately Managed Account:
(i) the Filer obtains the prior written consent of the client of the relevant Separately Managed Account before it engages in any In Specie Transfers;
(ii) the Fund would at the time of payment be permitted to purchase those securities;
(iii) the securities are acceptable to the Filer as portfolio manager of the Fund and consistent with the Fund's investment objectives;
(iv) the value of the securities is at least equal to the issue price of the units of the Fund for which they are used as payment, valued as if the securities were portfolio assets of the Fund; and
(v) the statement of portfolio transactions next prepared for the Separately Managed Account shall include a note describing the securities delivered to the Fund and the value assigned to such securities;
(b) in connection with the redemption of units of a Fund by a Separately Managed Account:
(i) the Filer obtains the prior written consent of the client of the relevant Separately Managed Account to the payment of redemption proceeds in the form of an In Specie Transfer;
(ii) the securities are acceptable to the Filer as portfolio manager of the Separately Managed Account and consistent with the Separately Managed Account's investment objective;
(iii) the value of the securities is equal to the amount at which those securities were valued in calculating the net asset value per unit used to establish the redemption price;
(iv) the holder of the Separately Managed Account has not provided notice to terminate its Managed Account Agreement with the Filer; and
(v) the statement of portfolio transactions next prepared for the Separately Managed Account shall include a note describing the securities delivered to the Separately Managed Account and the value assigned to such securities;
(c) the Filer does not receive any compensation in respect of any sale or redemption of units of a Fund and, in respect of any delivery of securities further to an In Specie Transfer, the only charge paid by the Separately Managed Account or the Fund is the Custodial Charge and the Re-Registration.