Ninepoint Partners LP
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- relief granted under subsection 62(5) of the Securities Act to permit the extension of a prospectus lapse date by up to 90 days so that the renewal prospectus can incorporate disclosure regarding certain proposed changes to the fund set to be voted on at an upcoming securityholder meeting -- no conditions.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5 as am., s. 62(5).
March 21, 2023
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 NINEPOINT PARTNERS LP (the Filer)
The principal regulator in the Jurisdiction has received an application from the Filer on behalf of Ninepoint Bitcoin ETF (the Fund) for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the time limits for the renewal of the prospectus of the Fund dated April 21, 2022 be extended to the time limits that would apply if the lapse date of the prospectus of the Fund was July 20, 2023 (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 each of the other provinces and territories of Canada (together with Ontario, the 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 Filer is a limited partnership formed and organized under the laws of the Province of Ontario. The general partner of the Filer is Ninepoint Partners GP Inc., a corporation incorporated under the laws of the Province of Ontario. The head office of the Filer is located in Ontario.
2. The Filer is registered under the securities legislation: (i) in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, and Newfoundland and Labrador as an adviser in the category of portfolio manager; (ii) in Ontario, Newfoundland and Labrador and Quebec as an investment fund manager; and (iii) in British Columbia, Alberta, Quebec, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, and Newfoundland and Labrador as a dealer in the category of exempt market dealer. The Filer is also registered in Ontario as a commodity trading manager.
3. The Filer is the trustee and manager of the Fund.
4. Neither the Filer nor the Fund is in default of securities legislation in any of the Jurisdictions.
5. The Fund is (a) an alternative mutual fund trust established under the laws of Ontario and (b) a reporting issuer as defined in the securities legislation of each of the Jurisdictions.
6. ETF units (ETF Units) of the Fund are currently qualified for distribution in each of the Jurisdictions under the current prospectus of the Fund dated April 21, 2022 (the Current Prospectus).
7. The lapse date for the Current Prospectus is April 21, 2023 (the Current Lapse Date). Accordingly, under the Legislation, the distribution of ETF Units of the Fund would have to cease on the Current Lapse Date unless: (i) the Fund files a pro forma prospectus at least 30 days prior to its Current Lapse Date; (ii) the final prospectus is filed no later than 10 days after its Current Lapse Date; and (iii) a receipt for the final prospectus is obtained within 20 days after its Current Lapse Date.
8. On March 2, 2023, the Filer announced a proposal to change the investment objectives of the Fund (the Amendments), subject to approval by the holders of the Fund's units at a special meeting of the Fund's unitholders, to be held on or about April 20, 2023 (the Meeting).
9. On March 13, 2023, the Filer filed (a) a material change report of the Fund regarding the Amendments and the Meeting; (b) Amendment No. 1 dated March 13, 2023 to the Current Prospectus amending the Current Prospectus to include information about the Amendments and the Meeting; and (c) an amendment to the current ETF facts document of the Fund to include the information about the Amendments and the Meeting.
10. An extension of the Current Lapse Date will allow the Filer to wait until following the Meeting to prepare and file a renewal prospectus and avoid preparing and filing a renewal prospectus while the Amendments are still in the process of being considered by the Fund's unitholders. This will result in the renewal prospectus, when prepared and filed, accurately reflecting the investment objectives of the Fund following the Meeting, and will provide more clear disclosure to investors.
11. Other than as described herein with respect to the Amendments and the Meeting, there have been no material changes in the affairs of the Fund since the date of the Current Prospectus and current ETF facts document.
12. New investors of the Fund will receive delivery of the most recently filed ETF facts document of the Fund. The Current Prospectus of the Fund, as amended, will remain available to investors upon request.
13. Should any additional material change in the business, operations or affairs of the Fund occur, the prospectus and ETF Facts document will be further amended as required under the Act.
14. As a result of the foregoing, the Exemption Sought will not affect the accuracy of the information contained in the Current Prospectus or the ETF facts document, as each is amended respectively, of the Fund, and will therefore not be prejudicial to the public interest.
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.