Burgundy Asset Management Ltd. - ss. 144 and 147 and ss. 59(1) of Sched I of Reg. 1015
Headnote
Exemption from the fees otherwise due undersubsection 14 (1) of Schedule 1 of the Regulation to the SecuritiesAct (Ontario) on the distribution of units made by public "underlying"funds arising from the context of fund-of-fund structures. Exemptionfrom fees otherwise due under Rule 45-501 on the distributionof units made by private "underlying" funds arisingin the context of fund-of-fund structures.
Statutes Cited
Securities Act, R.S.O. 1990, c. S.5 as am.,ss. 144 and 147.
Regulations Cited
Regulations made under the Securities Act R.S.O.1990, Reg, 1015, as am., Schedule 1, ss. 14 (1), 14 (4) and59 (1).
Applicable Ontario Rule
OSC Rule 45-501, s. 7.3, 7.5, 7.5.
IN THE MATTER OF
THE SECURITIES ACT, R.S.O.1990,
CHAPTER S.5, AS AMENDED
(the "Act")
AND
IN THE MATTER OF
BURGUNDY ASSET MANAGEMENTLTD.
AND
IN THE MATTER OF
BURGUNDY BALANCED INCOME FUND
BURGUNDY FOUNDATION TRUSTFUND
BURGUNDY PENSION TRUST FUND
BURGUNDY PARTNERS' RSP FUND
BURGUNDY AMERICAN EQUITY FUND
BURGUNDY PARTNERS' FUND
BURGUNDY PARTNERS EQUITY RSPFUND
(the "Public Top Funds")
AND
IN THE MATTER OF
BURGUNDY BALANCED PENSIONFUND
BURGUNDY BALANCED FOUNDATIONFUND
(the "Private Top Funds")
ORDER
(Sections 144 and 147 of theAct)
(Subsection 59(1) of ScheduleI of the Securities Act General Regulations under the Act (the"Regulation"))
WHEREAS the Ontario Securities Commission(the "Commission") has received an application (the"Application") from Burgundy Asset Management Ltd.("Burgundy"), the manager of the Public Top Fundsand the Private Top Funds (collectively the "Top Funds")and the manager of Burgundy Bond Fund, Burgundy European Fundand Burgundy European Foundation Fund (the "Public UnderlyingFunds"), Burgundy Japan Fund and Burgundy Smaller CompaniesFund (the "Private Underlying Funds"), and other similarmutual funds that may receive investments from a Top Fund inthe future (together with the Public Underlying Funds and thePrivate Underlying Funds, the "Underlying Funds")for a decision under the Securities Act (Ontario) (the"Legislation") revoking the decision document datedNovember 8, 2002 entitled In the Matter of Burgundy AssetManagement Ltd. (the "Existing Order") and replacingit with a decision (the "Decision") :
(a) pursuant to subsection 59(1) of ScheduleI of the Regulation exempting the Public Underlying Fundfrom the payment of the annual filing fees payable underSection 14 of Schedule I of the Regulation in respect ofthe distribution of units (the "Public Fund Units")of the Public Underlying Fund to the Top Funds and the reinvestmentin units of the Public Underlying Funds of distributionspaid in respect of units held by the Top Funds (the "PublicReinvested Units"); and
(b) pursuant to section 147 of the Act exemptingthe Private Underlying Funds from paying duplicate proceedsof distribution fees on an annual basis in respect of thedistribution of units (the "Private Fund Units")of the Private Underlying Funds to the Top Funds and thereinvestment in units of the Private Underlying Funds ofdistributions paid in respect of units held by the Top Funds(the "Private Reinvested Units").
AND UPON considering the applicationand the recommendations of the staff of the Commission.
AND UPON Burgundy having representedto the Commission that:
1. The Top Funds and the Underlying Fundsare open-end mutual funds established as trusts.
2. Burgundy is the manager of the Top Fundsand the Underlying Funds.
3. All distributions by the Underlying Fundsof (i) Public Fund Units and Private Fund Units (collectively,the "Units") to the Top Funds and (ii) Public ReinvestedUnits and Private Reinvested Units (collectively, "ReinvestedUnits") to the Top Funds, are made in Ontario.
4. The Public Underlying Funds and the PublicTop Funds are reporting issuers and are not in default ofany requirement of the securities acts or regulations applicableto each. Units of the Public Top Funds and the Public UnderlyingFunds are qualified for distribution pursuant to a simplifiedprospectus and an annual information form dated July 8, 2002,in each province of Canada other than Quebec.
5. The Private Top Funds and the Private UnderlyingFunds are not reporting issuers and are not in default ofany requirement of the securities acts or regulations applicableto each. Units of the Private Top Funds and the Private UnderlyingFunds are distributed in Ontario without a prospectus pursuantto exemptions from the prospectus delivery requirements ofthe Act.
6. As part of their investment strategy theTop Funds invest a fixed amount of their assets in Units ofthe Underlying Funds.
7. Applicable securities regulatory approvalsfor the fund-on-fund investment strategies of the Top Fundshave been obtained.
8. Annually, each of the Public Top Fundswill be required to pay filing fees to the Commission in respectof the distribution of its units in Ontario pursuant to Section14 of Schedule I of the Regulation and will similarly be requiredto pay fees based on the distribution of its units in otherrelevant Canadian jurisdictions pursuant to applicable securitieslegislation in each of those jurisdictions.
9. Annually, each of the Public UnderlyingFunds will be required to pay filing fees to the Commissionin respect of the distribution of its units in Ontario, includingUnits issued to the Top Funds, pursuant to Section 14 of ScheduleI of the Regulation.
10. Within 30 days of their respective yearends, the Private Top Funds will be required to pay filingfees in respect of distributions of their units in Ontario,pursuant to subsections 7.5(1), 7.5(8) and 7.7 of CommissionRule 45-501 (the "Rule") and will similarly be requiredto pay fees in respect of the distribution of their securitiesin other Canadian jurisdictions pursuant to the applicablesecurities legislation in each of those jurisdictions.
11. Within 30 days of their respective yearends, the Private Underlying Funds will be required to payfiling fees in respect of distributions of their Units andReinvested Units to the Top Funds in Ontario, pursuant tosubsections 7.5(1), 7.5(8) and 7.7 of the Rule.
12. A duplication of filing fees pursuantto Section 14 of Schedule I of the Regulation and subsections7.5(1), 7.5(8) and 7.7 of the Rule may result when (a) assetsof a Top Fund are invested in the applicable Underlying Fundand (b) Reinvested Units are distributed to a Top Fund.
AND UPON the Commission being satisfiedthat to do so would not be prejudicial to the public interest.
THE DECISION of the Commission pursuantthe Legislation is that the Existing Decision is hereby revokedand replaced with the following decision with effect as of andfrom the date hereof;
AND THE DECISION of the Commission pursuantto subsection 59(1) of Schedule I of the Regulation that thePublic Underlying Fund and any similar mutual fund that is areporting issuer and that receives an investment from a TopFund, are exempt from the payment of duplicate filing fees onan annual basis pursuant to Section 14 of Schedule I of theRegulation in respect of the distribution of Units of the UnderlyingFunds to the Top Funds and the distribution of the ReinvestedUnits, provided that such Underlying Fund shall include in itsnotice filed under subsection 14(4) of Schedule I of the Regulationa statement of the aggregate gross proceeds realized in Ontarioas a result of the issuance by the Underlying Funds of (1) Unitsto the Top Funds and (2) Reinvested Units; together with a calculationof the fees that would have been payable in the absence of thisOrder.
AND THE DECISION of the Commission pursuantto section 147 of the Act, that the payment of the fees requiredunder section 7.3 of the Rule that would otherwise be applicableto the distribution of Units and Reinvested Units of the UnderlyingFunds to the Top Funds shall not be applicable provided that:
(i) such distribution of Units and ReinvestedUnits is made to the Top Fund which pays fees in respectof the issue of its own Units.
(ii) each Underlying Fund shall includein its form filed pursuant to subsection 7.5(1) and 7.5(8)of the Rule, a statement of the aggregate gross proceedsrealized in Ontario as a result of the issuance by suchUnderlying Funds of Units and Reinvested Units; togetherwith a calculation of the fees that would have been payablein the absence of the Order.
January 24, 2003.
"Howard I Wetston" "RobertL. Shirriff"