National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – relief from provisions in section 8.4 of National Instrument 51-102Continuous Disclosure Obligations (NI 51-102) permitting the filer to include alternative financial disclosure in the business acquisition report pursuant to section 13.1 of NI 51-102 – filer acquired three properties for which it cannot obtain certain historical financial information – missing financial information is not material.
Applicable Legislative Provisions
National Instrument 51-102 Continuous Disclosure Obligations, ss. 8.4 and 13.1.
August 9, 2018
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
MINTO APARTMENT REAL ESTATE
The principal regulator in the Jurisdiction has received an application from the Filer (the Application) for a decision (the Exemption Sought) under the securities legislation of the Jurisdiction (the Legislation) for relief pursuant to Part 13 of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) from certain requirements in Item 3 of Form 51-102F4 and Part 8 of NI 51-102 in respect of a business acquisition report (the BAR) required to be filed by the Filer in connection with the completion on July 3, 2018 of the initial public offering (the Offering) of 13,794,000 trust units of the Filer, and the indirect acquisition (the Acquisition) of a portfolio of 22 multi-residential rental properties located in Canada (the Initial Properties), so that the BAR is not required to include audited financial information in respect of the following Initial Properties (collectively, the Exempt Properties):
· York House, The Lancaster House and Hi-Level Place, in Edmonton, Alberta (all of which were acquired as part of a single transaction by Minto Properties Inc. (MPI) in December 2016),
for the periods prior to the date they were acquired by MPI, which was the vendor of the Initial Properties to the Filer in connection with the Offering. The Filer also acquired as part of the Initial Properties, The Laurier, in Calgary, Alberta (the Laurier), though relief is not specifically required for this property, as it was acquired by MPI in 2015.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for the 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 each of British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Nunavut, the Northwest Territories and Yukon Territory.
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning in this decision, unless they are defined in this decision.
This decision is based on the following facts represented by the Filer:
1. The Filer is an open-ended real estate investment trust established under the laws of the Province of Ontario pursuant to a declaration of trust dated April 24, 2018, as amended and restated on June 27, 2018, as amended July 10, 2018.
2. The Filer’s head office is located at 200 – 180 Kent Street, Ottawa, Ontario K1P 0B6.
3. The Filer is a reporting issuer in each of the provinces and territories of Canada and is not in default of securities legislation in any jurisdiction of Canada.
4. The Filer’s trust units are listed and posted for trading on the Toronto Stock Exchange under the symbol “MI.UN”.
5. MPI is currently a related party of the Filer, and intends to maintain a significant ownership position in the Filer over the long-term. A wholly-owned subsidiary of MPI (the Retained Interest Holder) currently holds an approximate 56.8% interest in the Filer on a fully diluted basis, assuming the exchange of all class B units of Minto Apartment Limited Partnership held by the Retained Interest Holder for trust units of the Filer on a one-for-one basis.
6. MPI also benefits from the rights afforded to the Retained Interest Holder under the Filer’s Investor Rights Agreement, which, among other things, provides nomination rights to the Retained Interest Holder.
7. On July 3, 2018, the Filer completed the Offering of 13,794,000 trust units of the Filer pursuant to a long form prospectus, filed June 22, 2018 (the Prospectus).
8. In connection with the closing of the Offering, the Filer indirectly acquired the Initial Properties.
9. Prior to the closing of the Offering, MPI indirectly owned all of the Initial Properties, including the Exempt Properties.
10. The Exempt Properties were acquired by MPI in 2016.
11. Audited financial statements of the Exempt Properties for periods prior to their acquisition by MPI, do not exist and the Filer is unable to produce such financial statements.
12. The Filer proposes to exclude the following financial statements from the BAR (collectively, the Excluded Financial Statements):
· Audited financial statements of the Exempt Properties for periods prior to their acquisition by MPI; and
· Audited financial statements of the Laurier for periods prior to their acquisition by MPI.
13. The Filer proposes to include (or incorporate by reference) the following financial statements in the BAR (collectively, the Proposed Financial Statements). All financial statements described below have been prepared in accordance with IFRS.
· Unaudited pro forma consolidated financial statements as at and for the three month period ended March 31, 2018 and for the year ended December 31, 2017.
Initial Properties (other than the Excluded Financial Statements)
· Audited combined carve-out financial statements for the years ended December 31, 2017, 2016 and 2015.
· Unaudited condensed combined carve-out financial statements for the three months ended March 31, 2018 and 2017.
14. The Excluded Financial Statements that are missing from the BAR are not material. The Exempt Properties represent an insignificant amount of the overall (a) number of suites, (b) aggregate fair market value, (c) NOI and (d) gross revenues, of the Initial Properties. The Exempt Properties will not be significant or otherwise material (individually or in the aggregate) to the Filer having regard to the overall size and value of the Filer’s business and operations.
15. Prior to their acquisition by MPI, the Exempt Properties were owned and managed by different arm’s length vendors. The Filer does not possess, does not have access to and is not entitled to obtain access to, sufficient financial information for the Exempt Properties for any period prior to acquisition by MPI.
16. Audited historical financial statements of the Exempt Properties were not relevant to MPI’s decision to acquire the Exempt Properties in 2016. Given that such audited financial statements were not considered relevant to the investment decision made to acquire the Exempt Properties, the Filer does not believe that such financial statements are material to the investment decision to be made by a potential investor in the Filer, particularly when considered in light of the other financial information the Filer intends to provide in the BAR. The financial information the Filer intends to provide in the BAR is the same as that provided in the Prospectus, for which the Filer obtained similar relief from Item 32 of Form 41-101F1 Information Required in a Prospectus.
17. The Filer will also incorporate by reference into the BAR the financial forecast included in the Prospectus for the 12 months ended June 30, 2019. The forecast includes information with respect to all of the Initial Properties and is accompanied by a signed auditor's report with respect to the examination of the forecast made by the Filer’s auditors.
18. The Filer will also incorporate by reference into the BAR the disclosure from the Prospectus of the aggregate market value of the Initial Properties on a portfolio basis based on the appraisals completed by an independent third party appraiser. A copy of the summary of such appraisal is available under the Filer’s profile on SEDAR at www.sedar.com.
19. The Filer believes that the Proposed Financial Statements will provide sufficient historical information for an investor to make an informed decision regarding the Initial Properties as a portfolio.