SEI Investments Canada Company and the Top Funds
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Mutual funds that are not a reporting issuers granted 90-day extension of the annual financial statement filing and delivery deadlines under NI 81-106 -- Top Funds invests the majority of its assets in Underlying Funds -- Underlying Funds are subject to a variety of financial reporting deadlines, in some cases extending beyond annual financial statement filing and delivery deadline under NI 81-106 -- Relief granted provided that no less than 25% of the total assets of the Top Fund as at its financial year end of June 30 are invested in Underlying Funds that have financial reporting periods that end on June 30 of each year and subject to laws of their jurisdictions that require their annul financial statements to be delivered within 120 days of their financial year ends.
Applicable Legislative Provisions
National Instrument 81-106 Investment Fund Continuous Disclosure, ss. 2.2, 5.1(2)(a), and 17.1.
August 16, 2022
IN THE MATTER OF THE SECURITES LEGISLATION OF ONTARIO (the "Jurisdiction") AND IN THE MATTER OF SEI INVESTMENTS CANADA COMPANY AND THE TOP FUNDS (as defined below)
ORDER
Background
The Ontario Securities Commission (the "Commission") has received an application from SEI Investments Canada Company (the "Filer"), as investment fund manager of SEI Global Bond Fund (the "Initial Top Fund") and any other existing or future mutual fund that is not and will not be a reporting issuer, and that is, or will be, managed by the Filer and invests in underlying funds as part of its investment strategy (the "Future Top Funds", and together with the Initial Top Fund, the "Top Funds") for a decision under the securities legislation of the Jurisdiction (the "Legislation") in respect of the Fund-on-Fund Structure (as described below) exempting the Filer and the Top Funds from:
1. the requirement in section 2.2 of National Instrument 81-106 Investment Fund Continuous Disclosure ("NI 81-106") that the Top Funds file their audited annual financial statements and auditor's report (the "Annual Filing Requirement") on or before the 90th day after the Top Funds most recently completed financial year (the "Annual Filing Deadline"); and
2. the requirement in paragraph 5.1(2)(a) of NI 81-106 that the Top Funds deliver their audited financial statement by the Annual Filing Deadline (the "Annual Delivery Requirement")
(collectively, relief from the Annual Filing Requirement and the Annual Delivery Requirement, the "Requested Relief").
Representations
This decision is based on the following facts represented by the Filer.
The Filer
1. The Filer is an unlimited liability company organized under the laws of the Province of Nova Scotia with its head office in Toronto, Ontario.
2. The Filer is registered as a commodity trading manager in Ontario, investment fund manager, portfolio manager and exempt market dealer in each of Ontario, Québec, and Newfoundland and Labrador, and as a portfolio manager and an exempt market dealer in each of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Saskatchewan, Northwest Territories, Nunavut and Yukon.
3. The Filer is not a reporting issuer in any jurisdiction and is not in default of securities legislation of any jurisdiction of Canada.
4. The Filer is the investment fund manager and portfolio manager of the Initial Top Fund. The Filer is, or will be, the investment fund manager and portfolio manager of each Future Top Fund. The Filer or a third party will act as trustee of each Top Fund.
The Top Funds
5. The Initial Top Fund is a trust organized under the laws of the Province of Ontario pursuant to an amended and restated trust agreement dated September 27, 2021 (the "Trust Agreement"). Each Future Top Fund will be organized as a pooled fund trust or limited partnership under the laws of Ontario.
6. Each Top Fund will be a "mutual fund" for the purpose of the Legislation.
7. Securities of each Top Fund will only be offered for sale on a continuous basis to qualified investors in all provinces and territories in Canada pursuant to an exemption from the prospectus requirements under National Instrument 45-106 Prospectus Exemptions ("NI 45-106").
8. Units of each Top Fund will only be distributed in Canada pursuant to exemptions from the prospectus requirement in accordance with NI 45-106.
9. None of the Top Funds is, or will be, a reporting issuer in any province or territory of Canada.
10. In order to ensure the efficiency of operations, minimize fund costs and to avoid duplicating the substantive testing procedures and processes completed by the auditors of the Top Funds (including, for example, the security valuations and testing of controls and procedures associated with the reliance on service organization controls (SOC) report completed by the auditors of the Top Funds), each Top Fund has the same financial year end, being June 30.
11. The Initial Top Fund invests in units of underlying funds (the "Initial Underlying Funds").
12. In addition, each Top Fund may also invest in units of one or more future underlying funds (each, a "Future Underlying Fund" and, together with the Initial Underlying Funds, the "Underlying Funds") which investment or investments will be consistent with the Top Fund's investment objectives and strategies. Each Top Fund is expected to at all times be only a very minor securityholder in the Underlying Fund(s) in which such Top Fund invests.
13. Each Top Fund will have its own investment objective. In order to meet its investment objective, the investment strategy of each Top Fund is, or will be, to invest all or substantially all of the Top Fund's assets in one or more Underlying Funds that are not reporting issuers in Canada and that are managed and/or advised by the Filer or one of the Filer's affiliates.
14. The Filer believes that investing in the Underlying Funds offers benefits not available through a direct investment in the companies, other issuers or assets held by the Underlying Fund. The Filer desires to offer exposure to the Underlying Funds to its Canadian clients because it believes such Underlying Funds will be attractive and appropriate solutions for Canadian clients.
15. Securities of the Underlying Funds are typically redeemable on a daily basis. Each Top Fund is able to manage its own liquidity requirements taking into consideration the frequency at which the securities of the Underlying Funds may be redeemed.
16. The net asset value of each Top Fund ("NAV") is calculated on a daily basis on each business day (the "Valuation Day"). Investors of each Top Fund are provided with the NAV on a daily basis.
17. The investment holdings of each Top Fund of securities of the Underlying Funds will be disclosed in the financial statements of such Top Fund.
Financial Statements
18. Generally, section 2.2 and subsection 5.1(2)(a) of NI 81-106 require a Top Fund to file and deliver its annual audited financial statements by the Annual Filing Deadline. As each Top Fund's financial year-end is or will be June 30, they will each have a filing and delivery deadline of September 28.
19. Section 2.11 of NI 81-106 provides an exemption (the "Filing Exemption") from the Annual Filing Requirement if, among other things, an investment fund delivers its annual financial statements in accordance with part 5 of NI 81-106 by the Annual Filing Deadline.
20. In order to formulate an opinion on the financial statement on each Top Fund, the Top Fund's auditor requires audited financial statements of the respective Underlying Funds in order to audit the information contained in the Top Fund's financial statements. The auditors of the Top Funds have advised the Filer that they will be unable to complete the audit of each Top Fund's annual financial statements until the audited financial statements of the Underlying Funds are completed and available to the respective Top Fund.
21. The Underlying Funds may be domiciled in Ireland or other international jurisdictions.
22. The Underlying Funds may have varying financial year-ends and may be subject to a variety of financial reporting deadlines. For example, a material amount of the assets of the Top Funds invested in Underlying Funds will be in Underlying Funds that are governed by laws that require the financial statements to be filed within 120 days of the financial year end of the Underlying Fund.
23. In most cases, the Top Funds will not be able to obtain the financial statements of the Underlying Funds sooner than the deadline for filing the financial statements of the Underlying Funds and, in all cases, no sooner than other unitholders of the Underlying Funds receive the financial statements of the Underlying Funds.
24. Although the Filer and the manager of the Underlying Funds are, or will be, affiliated, the added cost associated with having the Underlying Funds change their financial reporting deadlines in order to provide their financial statements at an earlier date outweigh the expected benefit to the unitholders in the Top Funds (the "Fund Unitholders").
25. The offering memorandum, if any, of each Top Fund that will be provided to investors will disclose or investors will be otherwise notified that annual audited financial statements for the Top Fund will be filed and delivered within 180 days of financial year end, subject to regulatory approval.
26. The Filer will notify Fund Unitholders that it has received and intends to rely on relief from the Annual Filing Deadline and Annual Delivery Requirement.
27. The Filer does not anticipate it will be able to rely on the Filing Exemption since it is unable to prepare and deliver the financial statements and auditor's report within ninety (90) days after the Top Fund's most recently completed financial year.
28. It is expected that each Top Fund will not be able to file the annual audited financial statements of the Top Fund by the Annual Filing Deadline. As a result, the Top Fund will not be able to meet the Annual Delivery Requirement. The Filer expects this timing delay in the completion of its annual audited financial statements to occur every year for the foreseeable future.
29. Each Top Fund therefore seeks an extension of the Annual Filing Deadline and Annual Delivery Requirement to permit delivery within 180 days of the Fund's year end, to enable the Top Fund's auditors to first receive the audited financial statements of the Underlying Funds so as to be able to prepare the Top Fund's annual audited financial statements.
Decision
The Commission is satisfied that the decision meets the test set out in the Legislation for the Commission to make the decision.
The decision of the Commission under the Legislation is that the Requested Relief is granted to a Top Fund for so long as:
1. The Top Fund has a financial year ended June 30.
2. The Top Fund's investment strategy is to invest its assets in one or more Underlying Funds that are not reporting issuers in Canada.
3. The Top Fund invests the majority of its assets in Underlying Funds.
4. No less than 25% of the total assets of the Top Fund as at its financial year end of June 30 are invested in Underlying Funds that have financial reporting periods that end on June 30 of each year and are subject to laws of their jurisdictions that require their financial statements to be delivered within 120 days of their financial year ends.
5. The offering memorandum, if any, of each Top Fund that will be provided to investors in such Top Fund will disclose or investors will be otherwise notified that the annual audited financial statements for the Top Fund will be filed and delivered within 180 days of financial year end, subject to regulatory approval.
6. The Top Fund notifies Fund Unitholders that the Top Fund has received and intends to rely on relief from the filing and delivery requirements under section 2.2 and subsection 5.1(2)(a) of NI 81-106.
7. The Top Fund is not a reporting issuer and the Filer is an unlimited liability company organized under the Province of Nova Scotia with its head office in Toronto, Ontario and has the necessary registrations to carry out its operations in each jurisdiction of Canada in which it operates.
(a) The audited annual financial statements of the Top Fund are filed on or before the 180th day after the Top Fund's most recently completed financial year; or
(b) the conditions in section 2.11 of NI 81-106 are met, except for paragraph 2.11(b), and the annual audited financial statements are delivered to Fund Unitholders in accordance with Part 5 of NI 81-106 on or before the 180th day after the Top Fund's most recently completed financial year.
8. The Requested Relief terminates within one year of the coming into force of any amendment to NI 81-106 or other rule that modifies how the Annual Filing Requirement or Annual Delivery Requirement applies in connection with mutual funds under the Legislation.