Securities Law & Instruments

Headnote

National Policy 11-203 -- Existing and future mutual funds granted exemption to invest in an exchange traded fund that is listed on the London Stock Exchange as if the exchange traded fund was an index participation unit -- relief is subject to certain conditions and requirements.

Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, ss. 2.5(2) and 2.5(3).

July 23, 2009

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ONTARIO

(the Jurisdiction)

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

GOODMAN & COMPANY, INVESTMENT

COUNSEL LTD.

AND

IN THE MATTER OF

DYNAMIC GLOBAL VALUE FUND; DYNAMIC

EUROPEAN VALUE FUND; DYNAMIC FAR EAST

VALUE FUND; DYNAMIC EAFE VALUE CLASS;

AND DYNAMIC GLOBAL VALUE CLASS

 

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer on behalf of Dynamic Global Value Fund, Dynamic European Value Fund, Dynamic Far East Value Fund, Dynamic EAFE Value Class and Dynamic Global Value Class and such other funds as the Filer may establish in the future that have similar investment objectives and are operated on a similar basis to the Funds (collectively, the Funds) for a decision (the Exemption Sought) under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) exempting the Funds from the prohibition in subsection 2.5(2) of National Instrument 81,102 -- Mutual Funds (NI 81-102) to permit the Funds to invest in securities of the Deutsche Bank db x-trackers FTSE Vietnam ETF (the ETF) as if the securities of the ETF were "index participation units" (IPUs) within the meaning of NI 81-102.

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions:

(a) the Ontario Securities Commission is the principal regulator for the 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 relief upon in all of the provinces and territories of Canada other than Ontario (together with Ontario, the Jurisdictions).

Representations

The Manager and the Funds

1. The Filer is a corporation incorporated under the laws of the Province of Ontario, and holds a registration in the categories of "investment counsel" and "portfolio manager" in Ontario. The Filer also holds a registration in the categories of "investment counsel" and "portfolio manager", or the equivalent, in British Columbia, Alberta, Manitoba, Quebec, New Brunswick, and Nova Scotia.

2. The head office of the Filer is in Toronto, Ontario.

3. The Filer acts, or will act, as trustee and/or manager, principal distributor, and registrar of each of the Funds.

4. Each Fund is, or will be, a mutual fund trust governed by the laws of Ontario and a reporting issuer under the laws of all of the Jurisdictions.

5. Neither the Filer nor the Funds are in default of securities legislation in any of the Jurisdictions.

6. Each Fund is, or will be, governed by NI 81-102, subject to exemptive relief granted by the securities regulatory authorities.

7. The investment objective of each of the Funds is to provide long-term capital growth through investment in a broadly diversified portfolio consisting primarily of equity securities of businesses based outside of Canada.

8. In order to achieve its investment objective, each Fund may, among other things, (i) invest in equity securities, warrants and derivatives (such as options, forward contracts, futures contracts and swaps) and (ii) engage in short selling. It is expected that any new Funds will use similar investment strategies.

9. The investment objective of each Fund, as well as its investment strategy, will be disclosed on an ongoing basis in the prospectus of each Fund.

The ETF

10. The ETF is a sub-fund of the db x-trackers SICAV (the Company), an umbrella investment company with variable capital domiciled in Luxembourg, which has issued a prospectus (the db x-trackers Prospectus) dated February 16, 2009. Securities of the ETF are offered in the primary market pursuant to a simplified prospectus (the Simplified Prospectus) dated February 16, 2009.

11. The Company is registered in the Grand-Duchy of Luxembourg as an undertaking for collective investment pursuant to Part I of the Luxembourg law of 20 December 2002 relating to undertakings for collective investment, as amended. The Company qualifies as an undertaking for collective investment in transferable securities (UCITS) under article 1(2) of the Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities as amended (amongst others) by the directives 2001/107/EC and 2001/108/EC (the UCITS Directive) and may therefore be offered for sale in each member state of the European Union, subject to registration.

12. Securities of the ETF are listed on the London Stock Exchange (the LSE). The LSE is subject to regulatory oversight by the UK Listing Authority, which is part of the Financial Services Authority of the United Kingdom (the FSA). Securities of the ETF are also listed on the following stock exchanges: XETRA, Borsa Italiana, SIX Swiss Exchange and SGX-ST.

13. The ETF is a "mutual fund" within the meaning of applicable Canadian securities legislation.

14. Securities of the ETF would be "index participation units" within the meaning of NI 81-102 but for the fact that they are not traded on a stock exchange in Canada or the United States.

15. The investment objective of the ETF is to track the performance of the FTSE Vietnam Index (the Index). The Index, as further described in both the db x-trackers Prospectus and the Simplified Prospectus, is part of the FTSE Vietnam All-Share Index and comprises those companies (approximately 20) that have sufficient foreign ownership availability. The Index is a "permitted index" within the meaning of NI 81-102.

16. The ETF is an "index mutual fund" within the meaning of NI 81-102, which tracks an index in markets and asset classes which the Funds do not track. The Filer considers that investments in the ETF would provide a very cost effective way to obtain exposure to the markets and asset classes in which the ETF invests.

17. Deutsche Bank acts as the promoter of the ETF.

18. State Street Bank (State Street) acts as the following with respect to the ETF:

(a) investment manager;

(b) administrative agent, paying agent, domiciliary agent and listing agent;

(c) registrar and transfer agent; and

(d) custodian.

19. Pursuant to subsection 2.5(2) of NI 81-102, a Fund is not permitted to invest in securities of the ETF unless the requirements of subsections 2.5(2) and (3) are satisfied.

20. If the securities of the ETF were "index participation units" within the meaning of NI 81-102, a Fund would be permitted under the requirements of NI 81-102 to invest in such securities.

21. But for the requirement in the definition of index participation unit that a security be traded on a stock exchange in Canada or the United States, securities of the ETF would be index participation units.

22. It is the Filer's understanding that the regulatory regime, administration, operation, investment objectives and restrictions applicable to the ETF are as rigorous as those applicable to similar Canadian funds.

23. It is the Filer's understanding that the LSE is subject to equivalent regulatory oversight to securities exchanges in Canada and the United States.

24. It is the Filer's understanding that the listing requirements to be complied with by the ETF are consistent with the TSX listing requirements.

25. The Filer considers that investments in the ETF provide a cost effective way for the Funds to obtain exposure to the markets and asset classes in which the ETF invests.

26. Investment by the Funds in the ETF meets, or will meet, the investment objectives of the Funds.

27. The Fund, together with all related mutual funds, will not hold more than 20% of the voting rights attached to all the voting securities of the ETF.

28. The Fund will not invest in the ETF if as a result of the investment the Fund would have more than 10% of its net assets (taken at market value at the time of the transaction) invested, directly or indirectly, in the ETF.

Decision

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 under the Legislation is that the Exemption Sought is granted provided that:

(a) the ETF is:

(i) a sub-fund of the db x-trackers SICAV, an investment company incorporated with limited liability domiciled in Luxembourg, which qualifies as a UCITS under the UCITS Directive;

(ii) an index mutual fund;

(iii) operated in a manner substantially similar to the manner described above;

(b) the securities of the ETF purchased by a Fund are:

(i) listed on the LSE;

(ii) securities which, but for the requirement that securities be traded on a stock exchange in Canada or the United States, would be IPUs; and

(c) the other provisions of subsections 2.5(2) and 2.5(3) and of other sections of NI 81-102 that apply to an investment in securities of a mutual fund that are IPUs apply in respect of an investment in securities of the ETF.

Vera Nunes
Assistant Manager, Investment Funds Branch
Ontario Securities Commission