TD Asset Management Inc. and the Top Funds

Decision

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief from conflict of interest investment restrictions and management company reporting requirements in ss. 111(2)(b) and (c), 111(4) and 117(1) of the Securities Act (Ontario), the self-dealing restrictions for dealer managed investment funds in s.4.1(2) of NI 81-102 and for registered advisers in s.13.5(2)(a) of NI 31-103 to permit public and private investment funds to invest in related underlying investment vehicles that are not investment funds and not reporting issuers -- Relief granted subject to conditions.

Applicable Legislative Provisions

Securities Act (Ontario), R.S.O. 1990, c.S.5, as am., ss. 111(2)(b), 111(2)(c)(i) & (ii), 111(4), 113, 117(1)1 and 117(2).

National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, ss. 13.5(2)(a) and 15.1.

National Instrument 81-102 Investment Funds, ss. 4.1(2) and 19.1.

July 15, 2024

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
TD ASSET MANAGEMENT INC.
(the Filer)

AND

THE TOP FUNDS
(as defined below)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of each of the Filer, the Filer's affiliates and the Top Funds (as defined below) for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for

1. the revocation and replacement of the Current Relief (as defined below) (the Revocation), and

2. an exemption from:

(a) in respect of the Top Funds, the restrictions in the Legislation which prohibit:

(i) an investment fund from knowingly making an investment in a person or company in which the investment fund, alone or together with one or more related investment funds, is a substantial security holder,

(ii) an investment fund from knowingly making an investment in an issuer in which,

(A) any officer or director of the investment fund, its management company or distribution company or an associate of any of them, or

(B) any person or company who is a substantial security holder of the investment fund, its management company or its distribution company,

(iii) has a significant interest, and

(b) an investment fund, its management company or its distribution company from knowingly holding an investment described in paragraph (i) or (ii) above;

(c) in respect of the Public Top Funds (as defined below), the prohibition in paragraph 4.1(2) of National Instrument 81-102 Investment Funds (NI 81-102) against a "dealer managed investment fund" (as defined in NI 81-102) knowingly making an investment in an issuer in which any partner, director, officer or employee of the investment fund's management company or an affiliate or associate of the investment fund's management company is a partner, director or officer; in respect of the Filer and each affiliate of the Filer that is a registered adviser, the prohibition in paragraph 13.5(2)(a) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registration Obligations (NI 31-103) against knowingly causing a Top Fund to invest in securities of any issuer in which a responsible person or an associate of a responsible person is a partner, officer or director, unless the fact is disclosed to the client and the written consent of the client to the investment is obtained before the purchase (this restriction, together with the restrictions described in paragraphs (a) and (b) above are referred to herein as the Investment Fund Conflict of Interest Investment Restrictions), and

(d) in respect of the Filer and each affiliate that acts as manager of a Public Top Fund, the requirement to prepare a report in accordance with the requirements of the Legislation of every transaction by a Public Top Fund involving a purchase of securities from, or sale of securities to, any related person or company (the Investment Fund Conflict of Interest Reporting Requirement);

to permit each Top Fund to invest a portion of its assets in one or more Existing Underlying Investments (as defined herein) and any future investment vehicle that will be managed by the Filer or an affiliate of the Filer after the date of this decision and that will not be a reporting issuer or an investment fund (the Future Underlying Investmentsand, together with the Existing Underlying Investments, the Underlying Investments) (the Exemption Sought).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):

(a) the Ontario Securities Commission is the principal regulator for this application; and

(b) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Québec, Prince Edward Island, Saskatchewan and Yukon (together with Ontario, the Jurisdictions).

Interpretation

Terms defined in National Instrument 14-101 Definitions, NI 81-102, NI 31-103, National Instrument 81-107 Independent Review Committee for Investment Funds (NI 81-107) and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.

Current Relief means decisions in respect of the Filer and Top Funds dated July 16, 2020 and November 11, 2022.

Existing Private Top Funds means each investment fund managed by the Filer or an affiliate as at the date of this decision that is not a reporting issuer.

Existing Public Top Funds means each investment fund managed by the Filer or an affiliate as at the date of this decision that is a reporting issuer subject to NI 81-102.

Future Private Top Funds means each investment fund, other than the Existing Private Top Funds, that will be managed by the Filer or an affiliate after the date of this decision and that will not be a reporting issuer.

Future Public Top Funds means each investment fund, other than the Existing Public Top Funds, that will be managed by the Filer or an affiliate after the date of this decision and that will be a reporting issuer subject to NI 81-102.

Private Top Funds means the Existing Private Top Funds and the Future Private Top Funds.

Public Top Funds means the Existing Public Top Funds and the Future Public Top Funds.

Top Funds means the Public Top Funds and the Private Top Funds.

Representations

This decision is based on the following facts represented by the Filer:

The Filer

1. The Filer is a corporation incorporated under the laws of Ontario with its head office located in Toronto, Ontario.

2. The Filer is registered in: (i) each of the Jurisdictions as an adviser in the category of portfolio manager (PM) and as a dealer in the category of exempt market dealer; (ii) Ontario, Québec, Saskatchewan and Newfoundland and Labrador in the category of investment fund manager (IFM); (iii) Ontario in the category of commodity trading manager; and (iv) Québec as a derivatives portfolio manager.

3. The Filer or an affiliate of the Filer is, or will be, the IFM of the Top Funds. To the extent that the Filer or an affiliate of the Filer is the IFM of any Future Public Top Fund or Future Private Top Fund, the representations set out in this decision will apply to the same extent to such Future Public Top Fund or Future Private Top Fund, as applicable.

4. The Filer or an affiliate of the Filer is, or will be, the manager of the Underlying Investments. To the extent that the Filer or an affiliate of the Filer is the manager of any Future Underlying Investment, the representations set out in this decision will apply to the same extent to such Underlying Investment.

5. The Filer or an affiliate of the Filer is, or will be, a "responsible person" (as that term is defined in NI 31-103) of each Top Fund and each Underlying Investment.

6. The Filer is not in default of securities legislation in any of the Jurisdictions.

The Top Funds

7. The securities of each Top Fund are, or will be, (a) distributed to investors pursuant to a prospectus prepared in accordance with National Instrument 41-101 General Prospectus Requirements or National Instrument 81-101 Mutual Fund Prospectus Disclosure, as applicable or (b) sold to investors in one or more Jurisdictions pursuant to an exemption from the prospectus requirement under National Instrument 45-106 Prospectus Exemptions (NI 45-106) and/or the Legislation.

8. The securities of each Public Top Fund are, or will be, qualified for distribution in one or more Jurisdictions.

9. Each Public Top Fund is, or will be, a reporting issuer under the securities legislation of one or more Jurisdictions.

10. Each Private Top Fund has, or will have, an offering memorandum or statement of investment policies and guidelines, which is provided to investors. None of the Private Top Funds are, or will be, reporting issuers under the securities legislation of any Jurisdiction.

11. Each Top Fund may wish to invest in securities of the Underlying Investments, provided the investment is consistent with the Top Fund's investment objectives and strategies.

12. Each Private Top Fund will invest in securities of one or more Underlying Investments pursuant to applicable exemptions from the prospectus requirement under NI 45-106 and/or the Legislation.

13. The Existing Private Top Funds and Existing Public Top Funds are not in default of securities legislation of any of the Jurisdictions.

14. Each Public Top Fund is, or will be, subject to NI 81-107 and the manager of each Public Top Fund has established, or will establish, an independent review committee (IRC) in order to review conflict of interest matters pertaining to its management of the Public Top Funds as required by NI 81-107.

The Underlying Investments

15. The "Existing Underlying Investments" are as follows:

(a) TD Emerald Private Debt Pooled Fund Trust (PDPF Trust), TD Emerald Long Private Debt Pooled Fund Trust (Long PDPF Trust) and TD Greystone Mortgage Fund (Mortgage Fund and together with the PDPF Trust and the Long PDPF Trust, the Existing Underlying Trusts), each an investment trust existing under the laws of Ontario that is not an investment fund and not a reporting issuer; and

(b) TD Greystone Infrastructure Fund (Canada) L.P. II (Infrastructure Fund), TD Greystone Real Estate LP Fund (Real Estate Fund) and TD Greystone Global Real Estate Fund (Canada Feeder) L.P. (Global Real Estate Fund), each a limited partnership formed under the laws of Ontario that is not an investment fund and not a reporting issuer.

16. The Existing Underlying Investments are administered by the Filer, as manager, and their assets are managed by a PM. A third-party fund administrator calculates a net asset value (NAV) that is used for the purposes of determining the purchase and redemption price of the units of each Existing Underlying Investment.

17. Securities of the Underlying Investments are, or will be, distributed solely to investors pursuant to exemptions from the prospectus requirements in accordance with NI 45-106 and/or the Legislation.

18. Each Underlying Investment has or will have an offering memorandum or statement of investment policies and guidelines, as applicable, which is provided to investors.

19. Each Underlying Investment produces, or will produce, audited financial statements on an annual basis, in accordance with generally accepted accounting principles with a qualified auditing firm as the auditor of those financial statements.

The Existing Underlying Trusts

20. Each Existing Underlying Trust is an investment product established as a trust under the laws of Ontario.

21. The investment objectives of PDPF Trust are to seek to provide income and preserve capital over the long term by investing primarily in private debt securities. PDPF Trust may also invest in other fixed and floating rate debt instruments.

22. The investment objectives of Long PDPF Trust are to seek to provide income and preserve capital over the long term by investing primarily in private long-term debt securities. The Long PDPF Trust may also invest in other fixed and floating rate debt instruments. The portfolio holdings of the Long PDPF Trust will generally have terms to maturity over ten years.

23. The investment objectives of the Mortgage Fund are to provide a vehicle to invest in Canadian commercial real estate mortgages and to achieve superior long-term total returns while maintaining long-term stability of capital.

24. None of the Existing Underlying Trusts is an "investment fund" as such term is defined under the Legislation.

25. The value of the portfolio assets of each Existing Underlying Trust is independently determined, or will be prior to relying on any relief granted under this decision, by a party that is arm's length to the Filer on a monthly basis.

26. None of the Existing Underlying Trusts is a reporting issuer in any jurisdiction of Canada. Units of the Existing Underlying Trusts are sold pursuant to exemptions from the prospectus requirements in accordance with NI 45-106 or the Legislation, as applicable.

27. None of the Existing Underlying Trusts is in default of securities legislation of any of the Jurisdictions.

28. No Top Fund will actively participate in the business or operations of an Existing Underlying Trust.

The Infrastructure Fund

29. The Infrastructure Fund is an investment product established as a limited partnership under the laws of Ontario. The general partner of the Infrastructure Fund is Greystone Infrastructure Fund (Canada) Inc., which is an affiliate of the Filer.

30. TD Greystone Infrastructure Fund (Global Master) SCSp (the Master Infrastructure Fund) is a limited partnership formed under the laws of Luxembourg. The general partner of the Master Infrastructure Fund is TD Greystone Infrastructure GP SÀRL, which is an affiliate of the Filer.

31. The investment objective of the Infrastructure Fund is to provide substantial long term returns from infrastructure assets by investing in units of the Master Infrastructure Fund.

32. The investment objective of the Master Infrastructure Fund is to provide sustainable long-term returns by investing in a diversified global infrastructure portfolio that complies with established risk and portfolio limits.

33. Neither the Infrastructure Fund nor the Master Infrastructure Fund are subject to NI 81-102 and are not considered to be an "investment fund" as such term is defined under the Legislation.

34. The Infrastructure Fund is not a reporting issuer in any jurisdiction of Canada. Units of the Infrastructure Fund are sold solely to investment funds managed by the Filer pursuant to an exemption from the prospectus requirements in accordance with NI 45-106 or the Legislation, as applicable. Other investors who wish to obtain exposure to the assets of the Master Infrastructure Fund purchase units of another Canadian infrastructure limited partnership managed by the Filer that has an investment mandate similar to the investment mandate of the Master Infrastructure Fund pursuant to exemptions from the prospectus requirements in accordance with NI 45-106.

35. The value of the portfolio assets of the Master Infrastructure Fund is independently determined by a party that is arm's length to the Filer on a quarterly basis.

36. The Infrastructure Fund is not in default of securities legislation of any of the Jurisdictions.

37. No Top Fund will actively participate in the business or operations of the Infrastructure Fund.

Real Estate Fund

38. The Real Estate Fund is an investment product established as a limited partnership under the laws of Ontario. The general partner of the Real Estate Fund is GMI Real Estate Inc., which is an affiliate of the Filer.

39. The investment objective of the Real Estate Fund is to seek superior long-term total returns by investing in a diversified Canadian real estate portfolio. Under its investment strategy, the Real Estate Fund may also invest in equity interests in, and mortgages of, Canadian real estate, securities or bonds where the underlying asset is a mortgage or real estate, cash and short-term investments.

40. The Real Estate Fund is not subject to NI 81-102 and is not considered to be an "investment fund" as such term is defined under the Legislation.

41. The Real Estate Fund is not a reporting issuer in any jurisdiction of Canada. Units of the Real Estate Fund are sold pursuant to exemptions from the prospectus requirements in accordance with NI 45-106 or the Legislation, as applicable. Each such investor is responsible for making its own investment decisions regarding its purchases and/or redemptions of units of the Real Estate Fund.

42. The value of the portfolio assets of the Real Estate Fund is independently determined by a party that is arm's length to the Filer on a quarterly basis.

43. The Real Estate Fund is not in default of securities legislation of any of the Jurisdictions.

44. No Top Fund will actively participate in the business or operations of the Real Estate Fund.

Global Real Estate Fund

45. The Global Real Estate Fund is an investment product established as a limited partnership under the laws of Ontario. The general partner of the Global Real Estate Fund is TD Greystone Global Real Estate Fund (Canada Feeder) GP Inc., which is not an affiliate of the Filer.

46. The investment objective of the Global Real Estate Fund is to seek consistent long-term total returns by investing in a diversified global real estate portfolio. It seeks to achieve its investment objective by investing in units of the TD Greystone Global Real Estate Fund L.P. (the Master Global Real Estate Fund), a limited partnership formed and existing under the laws of the province of Ontario, or such other jurisdiction as the Filer may in the future determine.

47. The investment objective of the Master Global Real Estate Fund is to seek consistent long-term total returns by investing in a diversified global real estate portfolio that follows the risk controls set forth in its offering circular.

48. The Global Real Estate Fund and the Master Global Real Estate Fund have the same investment objectives; however, the Global Real Estate Fund will seek to achieve its investment objective by investing 100% of its capital (less amounts reserved for expenses) in the Master Global Real Estate Fund, whereas the Master Global Real Estate Fund will seek to achieve its investment objective by investing directly or indirectly in real estate assets, including by investing substantially more than 10% of its assets in other real estate investment products.

49. Neither the Global Real Estate Fund nor the Master Global Real Estate Fund are subject to NI 81-102 and are not considered to be an "investment fund" as such term is defined under the Legislation. Units of the Global Real Estate Fund are sold pursuant to exemptions from the prospectus requirements in accordance with NI 45-106 or the Legislation, as applicable. Each such investor is responsible for making its own investment decisions regarding its purchases and/or redemptions of units of the Global Real Estate Fund.

50. The value of the portfolio assets of the Master Global Real Estate Fund is independently determined by a party that is arm's length to the Filer on at least a quarterly basis.

51. The Global Real Estate Fund and the Master Global Real Estate Fund are administered by the Filer, as manager, and their assets are managed by a PM. The custodian of the Global Real Estate Fund and the Master Global Real Estate Fund calculates a NAV that is used for purposes of determining the purchase and redemption price of the units of the Global Real Estate Fund and the Master Global Real Estate Fund.

52. The Global Real Estate Fund is not in default of securities legislation of any of the Jurisdictions.

53. No Top Fund will actively participate in the business or operations of the Global Real Estate Fund.

The Future Underlying Investments

54. The Future Underlying Investments may be structured as limited partnerships, trusts or corporations governed by the laws of a jurisdiction of Canada.

55. Each Future Underlying Investment will not be an "investment fund" as such term is defined under the Legislation.

56. The Future Underlying Investments will not be reporting issuers in any of the Jurisdictions.

57. Each Future Underlying Investment will be operated in a manner similar to how the Filer operates its investment funds, including being administered by the Filer or an affiliate, having its assets managed by a PM, and calculating a NAV that is used to determine the purchase and redemption price of the units of the Future Underlying Investment.

Investments by Top Funds in the Underlying Investments

58. An investment by a Top Fund in an Underlying Investment will only be made if the investment is compatible with the investment objectives of the Top Fund.

59. The Filer believes that an investment by a Top Fund in an Underlying Investment will provide the Top Fund with an efficient and cost-effective manner of pursuing portfolio diversification and asset diversification instead of purchasing securities, or the underlying assets (including private equity, private credit, private infrastructure, and private real estate) of each Underlying Investment, directly. The Top Fund will also gain access to the investment expertise of the PM to the underlying assets of each Underlying Investment, as well as to their investment strategies and asset classes.

60. The Filer believes that an allocation to private equity, private credit, private infrastructure, private real estate and other alternative investments provides Top Fund investors with unique diversification opportunities and represents an appropriate investment tool for the Top Fund.

61. The Filer believes that it is in the best interests of the Top Funds to obtain exposure to the strategy of each Underlying Investment in order to provide the Top Funds with an investment in a variety of alternative and private assets.

62. Investments by a Top Fund in an Underlying Investment will be effected at an objective price. The Filer's policies and procedures provide that an objective price, for this purpose, will be the NAV per security of the applicable class or series of the Underlying Investment.

63. Each Public Top Fund is, or will be, valued and redeemable daily and each Private Top Fund is, or will be, valued and redeemable daily, monthly or quarterly, as applicable. The Underlying Investments may be potentially subject to redemption limitations, including lock-up periods, early redemption penalties and other restrictions on redemptions in a given period of time (collectively, Redemption Limitations).

64. An investment by a Top Fund in an Underlying Investment will only be made if such investment represents the business judgment of a responsible person uninfluenced by considerations other than the best interests of that Top Fund.

Generally

65. The Filer does not anticipate that any fees or sales charges would be incurred, directly or indirectly, by a Top Fund with respect to an investment in an Underlying Investment that, to a reasonable person, would duplicate a fee payable by the Top Fund to the Filer or by its investors.

66. In respect of an investment by a Top Fund in an Underlying Investment, no management fees or incentive fees will be payable by a Top Fund that, to a reasonable person, would duplicate a fee payable by the Underlying Investment for the same service.

67. A Top Fund's investment in an Underlying Investment will be disclosed to investors in that Top Fund's quarterly portfolio holding reports, financial statements, and fund facts or ETF facts documents, as applicable.

68. Where an investment is made by a Public Top Fund in an Underlying Investment, the annual and interim management reports of fund performance for the Public Top Fund will disclose the name of the related person in which an investment is made, being an Underlying Investment.

69. Where an investment is made by a Top Fund in an Underlying Investment, the records of portfolio transactions maintained by the Top Fund will include, separately for every portfolio transaction effected for the Top Fund by the Filer or through any affiliate of the Filer, the name of the related person in which an investment is made, being an Underlying Investment.

70. A unit of an Underlying Investment will be considered an "illiquid asset" within the meaning of NI 81-102. Consequently, if the Exemption Sought is granted, a Public Top Fund will acquire securities of an Underlying Investment, whether directly or indirectly, subject to the illiquid asset restriction in section 2.4 of NI 81-102. As a result, a Public Top Fund will not purchase units of an Underlying Investment if immediately after purchase, more than 10% of the NAV of the Public Top Fund would be made up of "illiquid assets".

71. The prospectus of each Public Top Fund will disclose in the next renewal or amendment thereto following the date of this decision, the fact that the Public Top Fund may invest, directly or indirectly, in one or more Underlying Investments, which are investment vehicles managed by the Filer or an affiliate of the Filer.

72. The offering memorandum or statement of investment policies and guidelines, where available, or other disclosure document of a Private Top Fund will disclose in the next update thereto following the date of this decision, the fact that the Private Top Fund may invest, directly or indirectly, in one or more Underlying Investments, which are investment vehicles managed by the Filer or an affiliate of the Filer as well as include the Additional Disclosure (as defined below).

73. Each Underlying Investment produces, or will produce, audited financial statements on an annual basis, in accordance with generally accepted accounting principles with a qualified auditing firm as the auditor of those financial statements.

74. The amount invested from time to time in an Underlying Investment by a Top Fund, together with one or more Top Funds, may exceed 20% of the outstanding voting securities of the Underlying Investment. This may result by reason of a group of Top Funds providing initial investments into the Underlying Investment on the start-up of the Underlying Investment. As a result, each Top Fund could, together with one or more other Top Funds, become a "substantial security holder" of an Underlying Investment within the meaning of the Legislation, further to which the Top Fund would be prohibited under the Legislation from knowingly purchasing and holding securities of the Underlying Investment. The Top Funds are, or will be, "related investment funds", as such term is defined in the Legislation by virtue of common management by the Filer or by an affiliate of the Filer.

75. In addition, an officer or director of the Filer or of an affiliate of the Filer may have a "significant interest" in an Underlying Investment and/or a person or company who is a substantial security holder of the Top Fund, the Filer or an affiliate of the Filer may have a "significant interest" in the Underlying Investment within the meaning of the Legislation, which would prohibit the Top Fund from investing in the Underlying Investment.

76. Paragraph 13.5(2)(a) of NI 31-103 prohibits the Filer or an affiliate that acts as PM of a Top Fund from knowingly causing a Top Fund to invest in an Underlying Investment that is structured as a limited partnership, where the general partner of the Underlying Investment is an affiliate of the Filer and the Filer or its affiliate is a responsible person of the Top Funds unless (i) this fact is disclosed to the client and (ii) the written consent of the client to the purchase is obtained before the purchase. It is impractical for the Filer to obtain the prior written consent from each investor in the Top Fund, given the widely held nature of the Top Funds.

77. A partner, director, officer or employee of a PM of a Public Top Fund, or a partner, director, officer or employee of an associate or an affiliate of a PM of a Public Top Fund, may also be a partner, director or officer of an Underlying Investment. Consequently, as a Public Top Fund may be a "dealer managed investment fund", the restrictions in subsection 4.1(2) of NI 81-102 may apply to an investment by a Public Top Fund in an Underlying Investment.

78. Subsection 6.2(3) of NI 81-107 provides an exemption for investment funds (including investment funds that are not reporting issuers) from the Investment Fund Conflict of Interest Investment Restrictions for purchases of related issuer securities if the purchase is made on an exchange. However, the exemption in subsection 6.2(3) of NI 81-107 does not apply to purchases of non-exchange-traded securities and therefore does not apply to purchases of an Underlying Investment by a Top Fund.

79. Absent the Exemption Sought,

(a) each Top Fund would be prohibited by the Investment Fund Conflict of Interest Investment Restrictions from (i) becoming a substantial securityholder of an Underlying Investment, alone or together with other Top Funds, and (ii) investing in an Underlying Investment in which an officer or director of the Filer or of an affiliate of the Filer has a significant interest or in which a person or company who is a substantial securityholder of the Top Fund or the Filer has a significant interest;

(b) each Public Top Fund that is a "dealer managed investment fund" would be prohibited by the Investment Fund Conflict of Interest Investment Restrictions from knowingly making an investment in an Underlying Investment in which any partner, director, officer or employee of the Public Top Fund's management company or an affiliate or associate of the Public Top Fund's management company is a partner, director or officer;

(c) the Filer or an affiliate of the Filer acting as PM of a Top Fund would be prohibited by the Investment Fund Conflict of Interest Investment Restrictions from causing the Top Fund to invest in securities of an Underlying Investment without disclosing this fact and obtaining the written consent of each investor in the Top Fund before the purchase; and

(d) the Filer, or an affiliate of the Filer acting as the management company (as defined in the Legislation) of the Public Top Funds would be required by the Investment Fund Conflict of Interest Reporting Requirement to file a report of every transaction of purchase or sale of securities between the Public Top Funds and the Underlying Investments within 30 days after the end of the month in which such purchase or sale occurs.

80. It would be costly and time-consuming for the Public Top Funds to comply with the Investment Fund Conflict of Interest Reporting Requirement.

81. The manager of the Public Top Funds will request approval from the IRC of the Public Top Funds to permit the investment of the Public Top Funds in the Underlying Investments, including by way of standing instructions. No such investments will be made by a Public Top Fund until the IRC provides its approvals under section 5.2 of NI 81-107. The manager of the Public Top Funds will comply with section 5.1 of NI 81-107 and the manager of the Public Top Funds and the IRC of the Public Top Funds will comply with section 5.4 of NI 81-107 for any standing instructions the IRC provides in connection with the transactions. If the IRC becomes aware of an instance where the manager of a Public Top Fund did not comply with the terms of any decision evidencing the Exemption Sought, or a condition imposed by securities legislation or the IRC in its approval, the IRC of the Public Top Fund will, as soon as practicable, notify in writing the securities regulatory authority or regulator in the Jurisdiction under which the Public Top Fund is organized.

82. Investments in Underlying Investments are considered illiquid investments under NI 81-102 and, therefore, are not permitted to exceed 10% of the NAV of a Public Top Fund. Such investments are included as part of the calculation for the purposes of the illiquid asset restriction in section 2.4 of NI 81-102 for a Public Top Fund. Given the readily available liquidity of the remainder of each Public Top Fund's investment portfolio, the Filer believes that the risk of a Public Top Fund needing to liquidate its investment in these illiquid assets when markets are under stress or in other environments where liquidity may be reduced is remote.

83. A Private Top Fund considers its overall liquidity requirements and the limitations on its redemption rights in making any investment in an Underlying Investment.

84. A Top Fund's investment in an Underlying Investment will represent the business judgment of a responsible person uninfluenced by considerations other than the best interests of the Top Fund.

Current Relief

85. Under a decision dated July 16, 2020, the Filer and the Public Top Funds were granted relief from the Investment Fund Conflict of Interest Investment Restrictions and Investment Fund Conflict of Interest Reporting Requirement to invest in certain Existing Underlying Investments. And under a decision dated November 11, 2022, the Filer and the Private Top Funds were granted relief from the applicable Investment Fund Conflict of Interest Investment Restrictions to invest in certain Existing Underlying Investments and certain mutual funds.

86. The Filer wishes to revoke the Current Relief and replace it with this decision in order to (a) extend the scope of the Current Relief to permit the Top Funds to invest in any Future Underlying Investments, (b) consolidate the Current Relief under a single decision document, and (c) update the list of Existing Underlying Investments.

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:

1. The Revocation is granted, and

2. The Exemption Sought is granted provided that:

(a) the securities of a Private Top Fund and the Underlying Investments, if distributed in Canada, are distributed in Canada solely to accredited investors pursuant to exemptions from the prospectus requirement under NI 45-106 or the Legislation, as applicable;

(b) a direct or indirect investment by a Top Fund in an Underlying Investment is compatible with the investment objective and strategy of such Top Fund and included as part of the calculation for the purposes of the illiquid asset restriction in section 2.4 of NI 81-102 for a Public Top Fund;

(c) at the time of the purchase by a Top Fund of securities of an Underlying Investment, either (A) the Underlying Investment holds no more than 10% of its NAV in securities of other investment funds, or (B) the Underlying Investment:

(i) has adopted a fundamental investment objective to track the performance of another investment fund or similar investment product;

(ii) purchases or holds securities of investment funds that are "money market funds" (as such term is defined in NI 81-102); or

(iii) purchases or holds securities that are "index participation units" (as such term is defined in NI 81-102) issued by an investment fund;

(d) no sales or redemption fees will be paid as part of the investment by a Top Fund in the Underlying Investment, unless the Top Fund redeems its securities of the Underlying Investment during a Redemption Limitation, in which case a fee may be payable by the Top Fund;

(e) no management fees or incentive fees will be payable by a Top Fund that, to a reasonable person, would duplicate a fee payable by the Underlying Investment for the same service;

(f) the securities of an Underlying Investment held by a Top Fund will not be voted at any meeting of the security holders of the Underlying Investment, except that the Top Fund may arrange for the securities of the Underlying Investment it holds to be voted by the beneficial holders of securities of the Top Fund;

(g) a Top Fund's investment in an Underlying Investment will be disclosed to investors in such Top Fund's quarterly portfolio holding reports, financial statements, and fund facts or ETF facts document, as applicable;

(h) the prospectus of a Public Top Fund discloses, or will disclose, in the next renewal or amendment thereto following the date of this decision, the fact that the Public Top Fund may invest in an Underlying Investment, which is an investment vehicle managed by the Filer or an affiliate, the potential conflict of interest that arises from this investment and how it is mitigated or avoided, and the approximate or maximum percentage of the NAV that is intended to be invested in securities of the Underlying Investment;

(i) the offering memorandum or statement of investment policies and guidelines, where available, or other disclosure document of a Private Top Fund, will be provided to each new investor in a Private Top Fund prior to their purchase of securities of the Private Top Fund, and will disclose the following information (the Additional Disclosure) in the next update thereto following the date of this decision:

(i) that the Private Top Fund may purchase securities of one or more Underlying Investments, which are investment vehicles managed by the Filer or an affiliate;

(ii) the approximate or maximum percentage of the NAV of the Private Top Fund that it is intended be invested in securities of each Underlying Investment;

(iii) that one or more officers, directors or substantial securityholders of the Filer, or of an affiliate of the Filer or of the Private Top Fund may have a significant interest in an Underlying Investment, the approximate amount of the significant interest they hold on an aggregate basis expressed as a percentage of the Underlying Investment's NAV, and the potential conflicts of interest which may arise from such relationships;

(iv) the fees and expenses payable by the Underlying Investment that the Top Fund may invest in, including any incentive fee; and

(v) that securityholders of the Private Top Fund are entitled to receive from the Filer or an affiliate of the Filer, on request and free of charge, a copy of the offering memorandum or other disclosure document, if any, and the annual and interim financial statements of the Underlying Investments in which the Private Top Fund invests;

(j) the IRC of the Public Top Fund will review and provide its approval, including by way of standing instructions, prior to the purchase of securities of an Underlying Investment, directly or indirectly, by the Public Top Fund, in accordance with subsection 5.2(2) of NI 81-107;

(k) the Filer complies with section 5.1 of NI 81-107, and the Filer and the IRC of the Public Top Fund comply with section 5.4 of NI 81-107, for any standing instructions the IRC provides in connection with the transactions;

(l) if the IRC becomes aware of an instance where the Filer or an affiliate of the Filer, in its capacity as the manager of a Public Top Fund, did not comply with the terms of this decision, or a condition imposed by securities legislation or the IRC in its approval, the IRC of the Public Top Fund will, as soon as practicable, notify in writing the securities regulatory authority or regulator in the Jurisdiction under which the Public Top Fund is organized;

(m) where an investment is made by a Public Top Fund in an Underlying Investment, the annual and interim management reports of fund performance for the Public Top Fund disclose the name of the related person in which an investment is made, being the Underlying Investment;

(n) where an investment is made by a Top Fund in an Underlying Investment, the records of portfolio transactions maintained by the Top Fund include, separately for every portfolio transaction effected for a Top Fund by the Filer or through any affiliate of the Filer, the name of the related person in which an investment is made, being the Underlying Investment; and

(o) a Top Fund will not invest in an Underlying Investment unless (i) the NAV of the Underlying Investment is based on a valuation of the portfolio assets of the Underlying Investments that is independently determined by an arm's length third party and (ii) the Underlying Investment produces annual financial statements that are audited by a qualified auditing firm in accordance with generally accepted accounting principles and made available to the Top Fund.

"Darren McKall"
Manager, Investment Management Division
Ontario Securities Commission

Application File. #: 2024/0351
SEDAR+ File #: 6144473