Application by an issuer for a revocation of a cease trade order -- cease trade order issued because the issuer had failed to file certain continuous disclosure materials required by Ontario securities law -- defaults subsequently remedied by bringing continuous disclosure filings up-to-date -- cease trade order revoked.
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 127, 144.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, c. S.5, AS AMENDED
IN THE MATTER OF
HAMILTON PARK PLAZA LIMITED PARTNERSHIP
WHEREAS the securities of the Hamilton Park Plaza Limited Partnership (the Applicant) are currently subject to a cease trade order made by the Director dated May 22, 1998 pursuant to paragraph 2 of subsection 127(1) and subsection 127(5) of the Act, as extended by a further order made by the Director dated June 4, 1998, pursuant to subsection 127(8) of the Act (together, the Cease Trade Order), ordering that trading in securities of the Applicant cease until the Cease Trade Order is revoked;
AND WHEREAS the Applicant has made an application to the Ontario Securities Commission (the Commission) pursuant to section 144(1) of the Act for an order revoking the Cease Trade Order;
AND WHEREAS the Applicant has represented to the Commission that:
1. The Applicant is a limited partnership formed pursuant to the Partnership Act of Manitoba. The Applicant's registered and head office is located in Winnipeg, Manitoba.
2. The Applicant is a reporting issuer in the provinces of Manitoba, Saskatchewan, Alberta, Ontario and Quebec. The Applicant is not a reporting issuer or its equivalent in any other jurisdiction in Canada.
3. The Applicant is governed by a limited partnership agreement dated March 7, 1985 and made between Hamilton Park Plaza Ltd., as general partner (the General Partner), Qualico Financial Services Ltd., as the initial limited partner and each and every person who subscribes for and pays the subscription price per unit and is accepted as a limited partner in the partnership (the Partnership Agreement).
4. Pursuant to a prospectus dated March 11, 1985, the Applicant sold a total of 800 limited partnership units (the Units) at a price of $2,500 per unit for gross proceeds of $2,000,000. There are currently 800 Units issued and outstanding. The Units are the only issued and outstanding securities of the Applicant.
5. The promoter of the Applicant at the time of its formation was Qualico Developments Limited (since renamed Qualico Developments West Ltd.) (Qualico). Qualico was the promoter of other limited partnerships formed pursuant to the Partnership Act of Manitoba which would become reporting issuers pursuant to prospectus offerings (the Reporting Issuer Limited Partnerships). On October 2, 1982, Qualico obtained an order from the Commission exempting its then existing and future-formed Reporting Issuer Limited Partnerships from the requirement to file and deliver to securityholders resident in Ontario financial statements for the first and third quarters of each financial year (the Interim Statement Relief). The Interim Statement Relief was subject to conditions, including that a majority of the unitholders of each Reporting Issuer Limited Partnership annually vote to approve the exemption and that the results of each such vote be reported in writing to the Commission within 10 days thereof.
6. The Applicant was a Reporting Issuer Limited Partnership subject to the Interim Statement Relief. Since its formation in 1985, the Applicant has obtained majority approval from its limited partners (the Unitholders) of the Interim Statement Relief on an annual basis up to and including in respect of the Applicant's 2009 financial year. The Interim Financial Statement Relief is not available to the Applicant because (a) it has not annually complied with the condition that the results of the Unitholder vote be reported in writing to the Commission within 10 days of each such vote being taken, and (b) with respect to its 2010 financial year, the Applicant did not seek Unitholder approval of the exemption.
7. The business of the Applicant consists of the ownership and operation of a 210 suite residential apartment complex located at 262-302 Hamilton Avenue & 838 Cavalier Drive, Winnipeg, Manitoba.
8. The Cease Trade Order was issued due to the failure of the Applicant to file audited annual financial statements for the year ended December 31, 1997 with the Commission, as required at the time of the Cease Trade Order by Part XVIII of the Act.
9. In addition to the Cease Trade Order, the Applicant is currently subject to cease trade orders issued by the Saskatchewan Securities Commission on February 12, 2001 and the Alberta Securities Commission on November 22, 2002 (together, the Other Cease Trade Orders), for failing to file with such securities regulatory authorities certain financial statements, management's discussion and analysis (MD&A) and applicable fees, or for failing to file the same in a timely manner, as required under applicable securities legislation. The Applicant is not subject to cease trade orders in any other jurisdiction.
10. The Applicant was previously subject to a cease trade order issued by the Manitoba Securities Commission (the MSC) dated September 26, 2006 (the Manitoba Cease Trade Order) and a cease trade order issued by the Commission des valeurs mobilières du Québec (the predecessor to the Autorité des marches financiers, the AMF) dated January 7, 1999 (the Quebec Cease Trade Order). The Manitoba Cease Trade Order and Quebec Cease Trade Order were revoked by orders of the MSC and AMF dated, respectively, December 23, 2009.
11. In accordance with the requirements of paragraphs 8.3 and 8.4 of the Partnership Agreement, the General Partner has prepared and delivered audited annual and unaudited interim semi-annual financial statements to the Applicant's Unitholders in each year commencing with financial statements for the year ended December 31, 1985.
12. In accordance with paragraph 9.1 of the Partnership Agreement, the General Partner has caused an annual meeting of the Unitholders to be held in each calendar year commencing in 1985. Annual meetings of the Applicant are held in Montreal, Quebec; that being the location in which the largest number of Unitholders reside. The last annual meeting of the Applicant was held on November 26, 2009.
13. Prior to March, 2007, the General Partner chose, due to cost concerns, to file annual financial statements in paper format with the certain of the securities regulatory authorities in each of Ontario, Manitoba, Saskatchewan, Alberta and Quebec. In certain years prior to March, 2007, the Applicant's financial statements contained certain qualifications to Canadian Generally Accepted Accounting Principles (GAAP). Since March, 2007, the Applicant's financial statements have been prepared in accordance with GAAP. The Applicant did not maintain an issuer profile on the System for Electronic Document Analysis and Retrieval (SEDAR) prior to March, 2007.
14. The Applicant concurrently applied to the Commission and the securities regulatory authorities in each of Manitoba, Saskatchewan, Alberta and Quebec (collectively, the Applicable Securities Regulatory Authorities) for a full revocation of the Cease Trade Order, the Manitoba Cease Trade Order, the Quebec Cease Trade Order and each of the Other Cease Trade Orders.
15. The Applicant has filed with the Applicable Securities Regulatory Authorities, through SEDAR:
(a) audited annual financial statements, unaudited interim semi-annual financial statements and the accompanying MD&A for the past three fiscal years, being the years ended December 31, 2006, 2007 and 2008,
(b) unaudited financial statements for the interim period ended March 31, 2009, the semi-annual period ended June 30, 2009 and the interim period ended September 30, 2009 and the accompanying MD&A, and
(c) the certificates required by National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings with respect to the filings referred to in (a) and (b).
16. The Applicant has not filed with the Commission its outstanding continuous disclosure documents for periods prior to the Applicant's financial year ended December 31, 2006, or the interim financial statements and related MD&A for the periods ended March 31 and September 30 for the Applicant's financial years ended December 31, 2007 and 2008 (the Outstanding Filings). Except for the failure to file the Outstanding Filings, the Applicant is not in default of any of its obligations as a reporting issuer under the Act.
17. The securities of Hamilton Park are not traded on a marketplace as defined in National Instrument 21-101 Marketplace Operation.
18. Other than the Cease Trade Order, the Applicant has not previously been subject to a cease trade order by the Commission.
19. The Applicant's profiles on SEDAR and the System for Electronic Disclosure by Insiders (SEDI) are up to date.
20. The Applicant has paid all applicable outstanding participation fees, filing fees and late fees owing to the Commission.
21. The Applicant acknowledges its obligation to prepare and file annual and interim financial statements and other continuous disclosure documents as required by applicable securities laws going forward.
22. The Applicant is not considering, nor is it involved in any discussions relating to a reverse take-over, merger, amalgamation or other form of combination or transaction similar to any of the foregoing.
23. Upon issuance of this revocation order, the Applicant will issue and file a news release and material change report on SEDAR.
AND UPON considering the application and the recommendations of staff of the Commission;
AND UPON the Director being satisfied that to do so would not be prejudicial to the public interest;
IT IS ORDERED pursuant to section 144 of the Act that the Cease Trade Order is revoked.
DATED this 30th day of December, 2009.