Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Filer exempt from the requirement to incorporate by reference certain opinions (which were provided by professional advisors of the Filer and included in an information circular relating to a special meeting of the shareholders) into a short form base shelf prospectus and related prospectus supplements.

Applicable Legislative Provisions

Form 44-101F1 Short Form Prospectus Distributions, items 11.1, 11.2.

Citation: Enbridge Income Fund Holdings Inc., Re, 2013 ABASC 61

February 22, 2013

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ALBERTA AND ONTARIO

(THE JURISDICTIONS)

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

ENBRIDGE INCOME FUND HOLDINGS INC.

(THE FILER)

DECISION

Background

The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) exempting the Filer from the requirement to incorporate by reference the Reports (as defined herein) which were included in the Management Information Circular of the Filer dated November 7, 2012 relating to the special meeting of the shareholders of the Filer held on December 7, 2012 (the Circular) into the short form base shelf prospectus of the Filer dated August 31, 2012 (the Base Prospectus) and any prospectus supplement relating to the Base Prospectus, including the prospectus supplement dated February 15, 2013, as required by Items 11.1 and 11.2 of Form 44-101F1 Short Form Prospectus Distributions (the Exemptive Relief Sought).

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

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

(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 British Columbia, Saskatchewan, Manitoba, Québec, Nova Scotia, Newfoundland, New Brunswick and Prince Edward Island; and

(c) this decision is the decision of the principal regulator and evidences the decision of the Ontario Securities Commission.

Interpretation

Terms defined in National Instrument 14-101 Definitions or MI 11-102 have the same meaning if used in this decision, unless otherwise defined herein.

Representations

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

1. The Filer is incorporated under the laws of Alberta. Its head office is located in Calgary, Alberta and its registered office is located in Calgary, Alberta.

2. The Filer's common shares are listed on the Toronto Stock Exchange and the Filer is a reporting issuer in all of the provinces in Canada.

3. The Filer is not in default of securities legislation in any jurisdiction.

4. The Filer filed the Base Prospectus and obtained a receipt dated August 31, 2012 from the Alberta Securities Commission, on its own behalf and on behalf of the regulators in each of the provinces of British Columbia, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.

5. The Filer filed the Circular dated November 7, 2012 on SEDAR.

6. The Circular contained a formal valuation and fairness opinion prepared by BMO Nesbitt Burns Inc., an independent engineer's report prepared by AMEC Americas Limited and Zephyr North Limited, an independent engineer's report prepared by Black & Veatch Canada Company and the independent engineer's reports prepared by WorleyParsons Canada Services Ltd. (collectively, the Reports).

7. Consents for each of the Reports were obtained and filed in connection with the Circular.

8. The Reports are incorporated by reference into the Base Prospectus by reason of being included in the Circular.

9. The Reports were not prepared by the auditors of the Filer.

10. The Reports related to a transaction which was completed on December 10, 2012 and for which the Filer sought the approval of a majority of disinterested shareholders.

11. The completed transaction is unrelated to the distribution of securities contemplated by the Base Prospectus and the distribution of common shares contemplated by the prospectus supplement dated February 15, 2013.

12. The Filer filed a business acquisition report dated December 18, 2012 in respect of the completed transaction, which was incorporated by reference in the prospectus supplement dated February 15, 2013.

13. Neither the Reports nor any information contained therein are referred to in the Base Prospectus or any prospectus supplement relating to the Base Prospectus.

14. To date, the only securities offered under the Base Prospectus were the common shares offered under the prospectus supplement dated February 15, 2013.

15. It was never contemplated that the Reports would be relied on in any context other than the proposed transaction described in the Circular and none of BMO Nesbitt Burns Inc., AMEC Americas Limited, Zephyr North Limited, Black & Veatch Canada Company and WorleyParsons Canada Services Ltd. could expect that their Reports would be utilized or relied upon for any other purpose or that they would potentially become liable under securities laws or otherwise in respect of any subsequent transaction or public offering undertaken by the Filer.

16. The Filer will include specific disclosure in each subsequently filed prospectus supplement to the Base Prospectus describing the Exemptive Relief Sought under the heading "Exemptions from NI 44-101" as follows:

The Corporation has sought and obtained exemptive relief to permit the following not to be incorporated by reference in this Prospectus Supplement: (a) the technical report entitled "Technical Assessment of Greenwich Wind Farm" dated October 23, 2012 prepared by AMEC Americas Limited and Zephyr North Limited and the summary thereof from page 37 to 39 of the 2012 Circular; (b) the technical report entitled "Amberstburg and Tilbury Solar Photovoltaic Projects -- Independent Engineering Report" dated October 25, 2012 prepared by Black & Veatch Canada Company and the summary thereof from page 39 to 41 of the 2012 Circular; (c) the technical reports entitled "Enbridge Hardisty Contract Terminal and Storage Caverns", "Phase I Environmental Site Assessment -- Hardisty Caverns (SE-31 and NE-30-042-09 W4M)" and "Phase I Environmental Site Assessment -- Hardisty Contract Terminals (19-042-09 W4M)" each dated October 25, 2012 prepared by WorleyParsons Canada Services Ltd. and the summaries thereof from page 41 to 42 of the 2012 Circular; and (d) the valuation and fairness opinion dated October 25, 2012 prepared by BMO Nesbitt Burns Inc. appended as Appendix A to the 2012 Circular and the summary thereof at pages 42 and 43 of the 2012 Circular.

Decision

Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.

The decision of the Decision Makers under the Legislation is that the Exemptive Relief Sought is granted.

"Blaine Young"
Associate Director, Corporate Finance