Multilateral Instrument 11-102 Passport System and National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions - Confidentiality -- Application by an issuer for a decision that certain portions of a report previously filed and made public on SEDAR be held in confidence for an indefinite period by the Commission, to the extent permitted by law -- Report contains intimate financial, personal and other sensitive information, the disclosure of which would be seriously prejudicial to the interests of the issuer and other persons affected -- Issuer subsequently filed and made public on SEDAR a redacted version of the report in which the intimate financial, personal and other sensitive information has been omitted or marked to be unreadable -- Information redacted from the redacted version of the report does not contain information that would be material to an investor -- Relief granted, subject to conditions.
Applicable Ontario Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 140(1), 140(2).
National Instrument 51-102 Continuous Disclosure Obligations , Part 12.
January 15, 2010
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
THE PROVINCE OF ONTARIO
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
GAZIT AMERICA INC.
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation), being subsection 140(2) of the Securities Act (Ontario) (the Act), that certain appraisal reports filed by the Filer on July 16, 2009 (the Original Filed Reports) on the System for Electronic Document Analysis and Retrieval (SEDAR) pursuant to section 9.2(a)(v) of National Instrument 41-101 General Prospectus Requirements (NI 41-101) be marked private on SEDAR (and therefore not available to the public) for an indefinite period, to the extent permitted by law (the Exemption Sought).
Under National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions:
(a) The Ontario Securities Commission is the principal jurisdiction for this Application; and
(b) The Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System is intended to be relied upon in each of the provinces of Canada, other than Ontario (the Non-Principal Passport Jurisdictions).
Terms defined in National Instrument 14-101 Definitions have the same meaning in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Filer was amalgamated under the Business Corporations Act (Ontario) on June 19, 2009.
2. The Filer's corporate and registered head office is in Toronto, Ontario.
3. The Filer is a reporting issuer (or equivalent) in each of the provinces of Canada and is not, to its knowledge, in default of its reporting issuer obligations under the securities legislation of any of Ontario or the Non-Principal Passport Jurisdictions.
4. The Filer filed a final long form prospectus on July 20, 2009 (the Prospectus) to qualify the initial public distribution of a maximum of 9,225,000 common shares in the capital of the Filer (Common Shares) and the Filer received a receipt for the Prospectus on that date. The Filer became a reporting issuer on July 20, 2009.
5. The Toronto Stock Exchange has approved the listing of the Common Shares on the Toronto Stock Exchange under the symbol "GAA".
6. The Prospectus contains a summary description of the Original Filed Reports. The Original Filed Reports were prepared by Altus Group Limited (the Appraiser) and relate to five medical office buildings to be acquired by the Filer from ProMed Properties (CA) Inc. (ProMed) in conjunction with, but prior to, the closing of the Filer's initial public offering. Upon completion of the purchase, ProMed will be a wholly-owned subsidiary of the Filer.
7. On July 16, 2009, the Filer filed on SEDAR the Original Filed Reports under section 9.2(a)(v) of National Instrument 41-101 General Prospectus Requirements (NI 41-101), together with the consent of the Appraiser in accordance with section 10.1(c) of NI 41-101.
8. Thereafter, it came to the Filer's attention that the Original Filed Reports contain certain confidential information (the Confidential Information) that is intimate financial, personal or other information relating to tenants of ProMed and vendors and purchasers of certain investment properties and lands described in the Original Filed Reports (collectively, the Affected Persons) and otherwise contain commercially sensitive operational and financial information concerning ProMed and, therefore, the Filer.
9. The Filer believes that continued public access to the Confidential Information would seriously prejudice the interests of the Affected Persons and the Filer for the following reasons:
(a) None of the Confidential Information, either individually or in the aggregate, is necessary to understand either the summary description of the appraisal reports contained in the Prospectus or the business of the Filer;
(b) The Confidential Information is intimate personal, financial or other information of the Affected Persons and ProMed;
(c) The disclosure of the Confidential Information would allow commercially sensitive information to be available to the general public, including competitors of ProMed and the Filer, which would be prejudicial to the Affected Persons and the Filer;
(d) Maintaining the confidentiality of the Confidential Information is important with respect to the relations of ProMed and the Filer with current and potential tenants, vendors and purchasers and the Affected Persons and ProMed and the Filer's ability to negotiate leases and contracts with potential tenants, vendors and purchasers and the Affected Persons; and
(e) The desirability of avoiding disclosure of the Confidential Information in the interests of the Affected Persons, ProMed and the Filer outweighs the desirability of adhering to the principle that material filed with the Commission be available to the public for inspection and the disclosure of the Confidential Information is not necessary in the public interest.
10. If the Original Filed Reports were material contracts, the Filer would be permitted to file a redacted version of the Original Filed Reports under section 9.3 of NI 41-101 as an executive officer of the Filer reasonably believes that disclosure of the Original Filed Reports would be seriously prejudicial to the interests of the Filer or would violate confidentiality provisions.
11. Following discussions with the principal regulator in the Jurisdiction on July 23, 2009, the Filer re-filed a copy of the Original Filed Reports on SEDAR with the Confidential Information redacted (the Redacted Filed Reports) and staff of the principal regulator in the Jurisdiction temporarily marked the Original Filed Reports private on SEDAR pending granting of this decision.
12. The portions omitted or marked so as to be unreadable from the Original Filed Reports to form the Redacted Filed Reports do not contain information in relation to the Filer or the securities of the Filer that would be material to an investor for purposes of making an investment decision.
13. As a result of the Original Filed Reports being filed and made public on SEDAR, the Original Filed Reports have also been disseminated to subscribers of the SEDAR-SCRIBE service. The Filer has been advised by representatives of CDS Inc., the administrator of the SEDAR-SCRIBE service, that subscribers of the SEDAR-SCRIBE service automatically received (i) notification that the Original Filed Reports had been made private on SEDAR, and (ii) instructions to delete the Original Filed Reports from their systems. The Filer has been advised by representatives of CDS Inc. that subscribers of the SEDAR-SCRIBE service are contractually bound to follow these instructions.
14. The Filer acknowledges that making the Original Filed Reports private on SEDAR does not guarantee that the Original Filed Reports are not available elsewhere in the public domain.
The principal regulator in the Jurisdiction is satisfied that the decision meets the test set out in the Legislation for the principal regulator in the Jurisdiction to make the decision.
The decision of the principal regulator in the Jurisdiction under the Legislation is that the Exemption Sought is granted, provided that the Filer files on SEDAR a copy of the Redacted Filed Reports that will be made public by the principal regulator and posted on www.sedar.com.