Growthworks Canadian Fund Ltd. (Re), 2008 CanLII 59332

Headnote

NP 11-203 – relief from section 14.2(2) of National Instrument 81-106 Investment Fund Continuous Disclosure to permit the Filer to record deferred sales commissions and share issuance costs incurred by ENSIS prior to the merger effective date – prior to the merger, ENSIS was a reporting issuer in Manitoba only and the Manitoba Securities Commission took the interpretation that ENSIS did not require relief from subsection 14.2(2) – post merger, amortization of the deferred charges will only affect former ENSIS shareholders.

Applicable Legislative Provisions

October 23, 2008

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

Growthworks Canadian Fund Ltd. (THE “FILER”)

DECISION

Background

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”) that the Filer be exempt from section 14.2(2) of National Instrument 81-106 Investment Fund Continuous Disclosure (“NI 81-106”) to permit the Filer to record and amortize as an asset of the Merger Shares (as defined below) deferred sales commissions and share issuance costs (the “ENSIS Deferred Charges”) incurred by ENSIS in connection with the sale of its Class A shares prior to the Merger Effective Date (as defined below) even though the ENSIS Deferred Charges were added after December 31, 2003 (the “Exemption Sought”).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions:

(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 is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Northwest Territories, Nunavut and Yukon (together with Ontario, the “Jurisdictions”).

Representations

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

GrowthWorks Canadian Fund Ltd.

1The Filer was incorporated under the Canada Business Corporations Act and is a reporting issuer in each of the Jurisdictions. The Filer is not in default of securities legislation in any jurisdiction.

2The Filer is a registered labour-sponsored investment fund corporation under the Community Small Business Investment Funds Act (Ontario) and is a registered labour-sponsored venture capital corporation under the Income Tax Act (Canada). The Filer is an approved fund under the Labour-sponsored Venture Capital Corporations Act (Saskatchewan). The Filer’s investing activities are governed by such legislation.

3The authorized capital of the Filer is as follows:

(a) an unlimited number of Class A shares issuable in series, which are widely held;

(b) 1,000 Class B shares which are held by the sponsor of the Filer; and

(c) an unlimited number of Class C shares issuable in series, of which there is one issued series designated as “IPA shares” held by the manager of the Filer to provide for a “participating” or “carried” interest in the venture investments of the Filer.

4GrowthWorks WV Management Ltd. is the manager of the Filer under a management contract.

5The Filer’s shares are not listed on an exchange. The Filer currently offers 10 series of its Class A shares, and has also issued 4 series of its Class A shares in connection with previous mergers.

6As of August 31, 2008, the Filer had a net asset value (“NAV”) of approximately $318 million (based on Pricing NAV (as defined below)).

ENSIS Growth Fund Inc.

7ENSIS was incorporated under The Corporations Act (Manitoba) and is a reporting issuer in the Province of Manitoba only. ENSIS is not in default of securities legislation in Manitoba.

8ENSIS is a registered labour-sponsored venture capital corporation under The Labour-Sponsored Venture Capital Corporations Act (Manitoba) (the “Manitoba Act”). ENSIS’ investing activities are governed by the Manitoba Act.

9The authorized capital of ENSIS is as follows:

(a) unlimited number of Class A shares, which have been offered only in Manitoba and are widely held (the “ENSIS Class A Shares”);

(b) unlimited number of Class B shares, of which 1,000 are issued and held by the sponsor of ENSIS;

(c) an unlimited number of Class C shares, issuable in series, of which none are issued;

(d) an unlimited number of Class D shares, issuable in series, of which none are issued;

(e) an unlimited number of Class E shares, issuable in series, of which none are issued;

(f) an unlimited number of Class S shares, issuable in series, of which none are issued; and

(g) one Class G share issuable only to the Province of Manitoba, of which one is issued and held by the Province of Manitoba.

10ENSIS Management Inc. is the manager of ENSIS under a management contract and is an affiliate of the manager of the Filer.

11ENSIS offers Class A Shares under a prospectus dated December 21, 2007, as amended (the “ENSIS Prospectus”).

12As of August 31, 2008, ENSIS had a NAV of approximately $85 million (based on Pricing NAV). As at August 31, 2008, the unamortized balance of ENSIS Deferred Charges paid in respect of ENSIS Class A Shares is approximately $3,056,532, of which $2,309,787 relates to costs incurred after December 31, 2003.

The Merger

13The Filer and ENSIS entered into a Merger Agreement dated for reference June 24, 2008 (the “Merger Agreement”) which sets out the terms and conditions of the Merger of ENSIS into the Filer. The Merger Agreement provides that the Merger is subject to a number of conditions and if such conditions are satisfied, it is expected the effective date of the Merger would be prior to ENSIS’ October 31, 2008 year-end (the “Merger Effective Date”).

14Under the Merger, shareholders of ENSIS will receive a newly created series of Class A shares of the Filer (the “Merger Shares”). This new series of Class A shares of the Filer will be issued only in connection with the Merger.

15The ENSIS Prospectus was filed only in Manitoba and the ENSIS Shares have only been offered in Manitoba. The Merger Shares will only be issued to shareholders of ENSIS in connection with the Merger and will not be offered for sale to the public.

16Information on the Merger Shares will be included in the Filer’s first renewal prospectus filed after the Merger Effective Date in accordance with exemptive relief previously granted by the Jurisdictions. The relief was granted November 23, 2006 and exempts the Filer from the requirement under National Instrument 81-106 to file annual information forms for previously distributed series of its Class A shares that are not offered under the Filer’s current prospectus.

17Until September 30, 2003, labour sponsored investment funds in Canada (“LSIFs”) recognized the commissions paid on the sale of their shares, and in some cases other share issuance costs, as an asset on their financial statements (the “Deferred Charges”). Funds amortized the Deferred Charges on a straight line basis over the eight year period during which the shares are required to be held in order to retain the benefit of LSIF tax credits. This meant that in calculating what’s referred to as “Pricing NAV”, LSIFs would include the unamortized balance of Deferred Charges, effectively matching the cost of the Deferred Charges to the time period during which the shares were expected to be held. Effective for fiscal periods beginning on or after October 1, 2003, however, Deferred Charges were no longer recognized as an asset under GAAP. As set out below, NI 81-106 allowed for transitional exemptive relief to allow LSIFs to continue to amortize the balance of sales commissions as at December 31, 2003 for purposes of setting the purchase and redemption prices of LSIF shares. However, LSIFs could not continue to add new Deferred Charges to their existing asset balance after December 31, 2003. The Filer did cease adding new Deferred Charges as at December 31, 2003.

18The Manitoba Securities Commission permitted ENSIS to continue to treat ENSIS Deferred Charges as an asset in calculating the purchase and redemption price of the ENSIS Class A Shares. Management of ENSIS believes that it is appropriate to continue to record ENSIS Deferred Charges as an asset for the purposes of calculating the share price given the expectation that the shares would be held for a minimum of eight years. As a result, the unamortized balance of ENSIS Deferred Charges paid on sales of ENSIS Class A Shares includes costs paid on sales occurring before and after December 31, 2003.

19The methodology for the pricing of the ENSIS Class A Shares and recording and amortizing of ENSIS Deferred Charges was described in detail in the ENSIS Prospectus. ENSIS also provided a reconciliation of Pricing NAV and GAAP net assets in the notes to its annual and interim financial statements since its April 30, 2004 interim financial statements.

20The asset consisting of ENSIS’ unamortized balance of ENSIS Deferred Charges as at the Merger Effective Date will be allocated entirely to the Merger Shares. Only existing ENSIS Manitoba investors will be affected by the continued amortization of the ENSIS Deferred Shares post-Merger. Accordingly, no other existing or future shareholders of the Filer will be affected by the continued amortization of the ENSIS Deferred Charges post-Merger.

21After the Merger Effective Date, ENSIS Deferred Charges accumulated up to the Merger Effective Date will continue to be amortized in a manner consistent with ENSIS management’s recording of ENSIS Deferred Charges and with the terms disclosed in the prospectus under which the ENSIS Class A Shares were purchased.

22The Filer will disclose the difference between the Pricing NAV and GAAP net assets in accordance with the requirements of NI 81-106.

Decision

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 under the Legislation is that the Exemption Sought is granted provided that:

(a) ENSIS ceases adding new Deferred Charges to its existing asset balance after October 24, 2008;

(b) ENSIS Deferred Charges will continue to be amortized over the remaining amortization period but, in any case, no more than eight years after the Merger Effective Date; and

(c) the Filer will include a description of how Pricing NAV is calculated for the Merger Shares in the Ratios and Supplemental Data table for the Merger Shares in the annual and interim management reports of fund performance.