National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief granted to mutual fund for extension of lapse date of prospectus for 132 days. Filer will incorporate offering of the Fund under the same offering documents as related family of funds when they are renewed- Extension of lapse date will not affect the currency or accuracy of the information contained in the prospectus -- Securities Act (Ontario).
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.
May 7, 2014
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF COUNSEL PORTFOLIO SERVICES INC. (the Filer) AND BRIGATA DIVERSIFIED PORTFOLIO (the Fund)
The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Fund for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for an extension of the time limits pertaining to filing the renewal prospectus of the Fund in all Provinces of Canada, other than Quebec, as if the lapse date of the simplified prospectus and annual information form of the Fund dated June 21, 2013 was November 1, 2014 (the Requested Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission (OSC) is the principal regulator for this application; and
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador (the Other Jurisdictions).
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Fund is an open-ended mutual fund established under the laws of the Province of Ontario.
2. Units of the Fund are currently offered for distribution in each of the provinces of Canada under a simplified prospectus and annual information form dated June 21, 2013, each as amended (the Current Prospectus).
3. Amended fund facts that incorporate the requirements of Form 81-101F3 that came into effect on January 13, 2013 were filed on March 31, 2014 (the Fund Facts).
4. Pursuant to Legislation, the lapse date for the Current Prospectus is June 21, 2014 (the Current Lapse Date). Accordingly, under the Legislation, the distribution of units of the Fund would have to cease on the Current Lapse Date unless (i) the Fund files a pro-forma prospectus for the Fund at least 30 days prior to the Current Lapse Date; (ii) the final simplified prospectus is filed no later than 10 days after the Current Lapse Date, and (iii) a receipt for the final simplified prospectus is obtained within 20 days of the Current Lapse Date.
5. The Filer is the trustee and manager of the Fund.
6. The Filer is also the trustee, manager and portfolio manager of 37 other mutual funds (the Counsel Funds) which are offered for distribution under a separate simplified prospectus and annual information form dated November 1, 2013 in each of the provinces of Canada, other than Quebec (the Jurisdictions).
7. The Filer would like to incorporate the offering of the Fund in the Jurisdictions under the same offering documents as the Counsel Funds once they are renewed in or about October or November 2014. Offering the Fund under the same offering documents as the Counsel Funds would facilitate the distribution of the Fund in the Jurisdictions under the same simplified prospectus and it would also assist in disseminating information with respect to the Fund and the Counsel Funds in such matters such as switching between the Fund and the Counsel Funds.
8. If the Requested Relief is granted, it is the Filer's intention to file a standalone simplified prospectus, fund facts document and annual information form for the Fund in the province of Quebec only because the Counsel Funds are not currently offered for distribution in Quebec with the view to renewing the distribution of the Fund in Quebec for a further year based on the Current Lapse Date.
9. Given the disclosure obligations of the Fund, should any material changes be proposed, the Current Prospectus will be amended accordingly.
10. There have been no material changes in the affairs of the Fund since the date of the Current Prospectus. Accordingly, the Current Prospectus represents current information of the Fund. In addition, the Fund Facts filed on March 31, 2014 provides even more current information to investors regarding the Fund.
11. After June 13, 2014, new investors will receive delivery of the Fund Facts dated March 31, 2014. The Current Prospectus will still be available upon request.
12. The Requested Relief will not affect the accuracy of the information contained in the Current Prospectus or the Fund Facts and therefore will not be prejudicial to the public interest.
13. None of the Fund, Counsel Funds, or the Filer is in default of securities legislation in any jurisdiction of Canada.
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 Requested Relief is granted.