National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief from requirement to file notice of intention to file a short form prospectus within stipulated time.
Applicable Legislative Provisions
National Instrument 44-101 Short Form Prospectus Distributions, s. 2.8.
February 25, 2015
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 CANADIAN RESOURCES INCOME TRUST (the "Filer")
The principal regulator in the Jurisdiction has received an application from the Filer (the "Application") for a decision under the securities legislation of the Jurisdiction of the principal regulator (the "Legislation") that the Filer be exempt from the requirement in National Instrument 44-101 Short Form Prospectus Distributions ("NI 44-101") to file a notice (a "Notice") declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the filing of its preliminary short form prospectus (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 section 4.7(1) of Multilateral Instrument 11-102 Passport System ("MI 11-102") is intended to be relied upon in all provinces of Canada.
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 an open-ended investment trust, established under the laws of the Province of Ontario on November 28, 1996. The Filer is governed by a second amended and restated declaration of trust dated as of March 31, 2010 (the "Declaration of the Trust"). Scotia Managed Companies Administration Inc. ("SMCAI") is the investment fund manager of the Filer.
2. The principal office of the Filer and SMCAI is 26th Floor, 40 King Street West, Toronto, Ontario, M5W 2X6.
3. The authorized capital of the Filer consists of an unlimited number of trust units (the "Units").
4. The Filer is a reporting issuer and a mutual fund under applicable securities laws in each of the provinces of Canada and is not in default of securities legislation in any province of Canada. As the Units are not offered on a continuous basis and are listed as described below, the Filer previously received an exemption from certain legal requirements applicable to conventional mutual funds.
5. The Units of the Filer are listed for trading on the Toronto Stock Exchange under the symbol "RTU.UN".
6. Pursuant to the Declaration of Trust, the Filer is scheduled to terminate on March 31, 2015.
7. The Filer has called a special meeting (the "Meeting") of Unitholders to be held on March 6, 2015 to consider and vote upon a special resolution to amend the Declaration of Trust to implement a proposed extension (the "Extension") of the Filer which will involve, among other things, extending the termination date of the Filer for an additional five years to March 31, 2020. The Filer prepared and delivered an information circular (the "Information Circular") relating to the Meeting to holders of Units ("Unitholders") of record on January 30, 2015, which Information Circular was filed on SEDAR on February 5, 2015.
8. If the Extension is approved at the Meeting, Unitholders who do not wish to continue their investment will be afforded the right to redeem their Units on March 31, 2015 (the "Special Redemption Right") on the same terms that would have applied had the Filer redeemed all Units on such date as originally contemplated under the Declaration of Trust.
9. The Information Circular states that one of the benefits of the Extension is to enable the Filer to have the opportunity to increase its size through additional offerings which if successful will benefit Unitholders by the potential to increase trading liquidity of the Units and decrease the management expense ratio.
10. The Filer has determined that a favourable market window for an offering of Units currently exists. Due to the current levels of uncertainty existing with respect to global equity markets generally and the natural resource markets in particular, the Filer cannot determine how long this favourable market window will last. As a result, the Filer wishes to be in the position to file a preliminary short form prospectus on or about February 25, 2015 and commence the marketing of a public offering (the "Offering") as soon as possible thereafter.
11. Filing the preliminary prospectus on or about February 25, 2015 will also provide current Unitholders sufficiently in advance of the Meeting with the information that the Filer intends to grow its size which information current Unitholders can assess in determining how they wish to vote at the Meeting and whether they wish to exercise their Special Redemption Right.
12. On February 19, 2015, the Filer filed English and French versions of its annual information form, MRFP and financial statements relating to the year ended December 31, 2014 which together with the Information Circular and a material change report dated January 2, 2015 (collectively, the "Disclosure Documents") will be incorporated by reference into the short form prospectus and the Filer is in a position to file the Preliminary Prospectus such that the offering can be conducted under NI 44-101.
13. The Filer is qualified to file a prospectus in the form of a short form prospectus pursuant to section 2.2 of NI 44-101 and filed a Notice of Intention with the Ontario Securities Commission dated February 20, 2015.
14. Notwithstanding section 2.2 of NI 44-101, section 2.8(1) of NI 44-101 provides that an issuer is not qualified to file a short form prospectus unless it has filed a Notice of Intention to be qualified to file a short form prospectus at least 10 business days prior to the issuer filing its preliminary short form prospectus.
15. In the absence of the Exemption Sought, the Filer will not be qualified to file a Preliminary Prospectus until the day of the Meeting on March 6, 2015, which is 10 business days from the date upon which the Notice was filed.
16. The Filer had in fact filed a Notice of Intention on March 8, 2010 but on March 9, 2012, the Filer filed a withdrawal of the Notice of Intention.
17. The Filer has no intention of undertaking a "bought deal" and has no intention of relying on Section 5.5 of National Policy 11-202 -- Process for Prospectus Reviews in Multiple Jurisdictions ("NP 11-202") for timing of review of the Preliminary Prospectus. The Filer will file an undertaking that the Preliminary Prospectus will be reviewed in accordance with Section 5.4 of NP 11-202 which is the timing of review applicable to a long form prospectus.
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 pursuant to the Legislation is that the Exemption Sought is granted.