Headnote 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 a material contract and certain portions of a material contract and a material change 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 – Documents contain 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 documents 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 documents do not contain information that would be material to an investor – Relief granted.
Applicable Ontario Legislative Provisions Securities Act, R.S.O. 1990, c. S.5, as am., ss. 140(1) and 140(2). Applicable Instruments National Instrument 51-102 Continuous Disclosure Obligations, Part 12.
August 24, 2010
IN THE MATTER OF THE SECURITIES LEGISLATION OF THE PROVINCE OF ONTARIO (the “Jurisdiction”)
AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF MACQUARIE POWER & INFRASTRUCTURE INCOME FUND (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”), being section 140(2) of the Securities Act (Ontario) (the “Act”), that (i) the material change report of the Filer dated July 2, 2010 (the “MCR”), (ii) the Engineering, Procurement and Construction Agreement dated June 23, 2010 (the “EPC Agreement”) and (iii) the Parent Guarantee Agreement dated June 23, 2010 (the “Parent Guarantee”, and together with the MCR and EPC Agreement, the “Original Filed Documents”), all filed on the System for Electronic Document Analysis and Retrieval (“SEDAR”) by the Filer on July 2, 2010 pursuant to, for the MCR, section 7.1(1)(b) of National Instrument 51-102 Continuous Disclosure Obligations (“NI 51-102”) and, for the EPC Agreement and the Parent Guarantee, section 12.2(1) of NI 51-102 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 the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission (the “Principal Regulator”) 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 each of the provinces and territories of Canada, other than Ontario (the “Non-Principal Passport Jurisdictions”).
Interpretation:
Terms defined in National Instrument 14-101 – Definitions and the MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations:
This decision is based on the following facts represented by the Filer:
The Filer is a trust existing under the laws of the Province of Ontario pursuant to an amended and restated declaration of trust dated April 16, 2004, as amended February 21, 2006.
The Filer’s head office is located in Toronto, Ontario.
The Filer is a reporting issuer (or equivalent) in each of the provinces and territories of Canada and is not, to its knowledge, in default of its reporting issuer obligations under the securities legislation of Ontario or any of the Non-Principal Passport Jurisdictions.
On June 23, 2010, the Filer completed a transaction with SunPower Corporation (“SunPower”) whereby a subsidiary of the Filer purchased a solar photovoltaic power project in Amherstburg, Ontario, to be designed, built and operated by SunPower on behalf of the Filer (the “Transaction”).
The entering into of the Transaction was disclosed by press release issued June 23, 2010.
On July 2, 2010, the Filer filed the Original Filed Documents on SEDAR pursuant to, for the MCR, section 7.1(1)(b) of NI 51-102 and, for the EPC Agreement and the Parent Guarantee, section 12.2(1) of NI 51-102, together with other material contracts relating to the Transaction.
The MCR contains a summary description of the EPC Agreement, the Parent Guarantee and the other material contracts filed on SEDAR in connection with the Transaction.
Thereafter, it came to the Filer’s attention that the MCR and EPC Agreement contain, and all of the terms of the Parent Guarantee are, confidential information (the “Confidential Information”) that is intimate financial and personal or other information concerning SunPower and/or the Filer and otherwise contain commercially sensitive operational and financial information concerning SunPower and/or the Filer.
The Filer believes that continued public access to the Confidential Information would seriously prejudice the interests of SunPower and the Filer for the following reasons:
a. should the Original Filed Documents remain on SEDAR, commercially sensitive information would continue to be available to the general public, including competitors of SunPower and the Filer, which would be prejudicial to SunPower and the Filer;
b. maintaining the confidentiality of the Confidential Information is important with respect to the relations of the Filer with SunPower, with whom the Filer has an ongoing business relationship, as well as the Filer’s ability to negotiate future transactions;
c. none of the Confidential Information, either individually or in the aggregate, is necessary to understand the business of the Filer;
d. the Confidential Information does 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; and
e. the desirability of avoiding disclosure of the Confidential Information in the interests of SunPower and the Filer outweighs the desirability of adhering to the principle that material filed with the Principal Regulator be available to the public for inspection and the disclosure of the Confidential Information is not necessary in the public interest.
The Filer is permitted to file a redacted version of the EPC Agreement pursuant to section 12.2(3) of NI 51-102.
Following discussions with the Principal Regulator, on July 23, 2010 the Filer re-filed a copy of the MCR and the EPC Agreement on SEDAR with the Confidential Information in such documents redacted (the “Redacted Filed Documents”) and staff of the Principal Regulator temporarily marked the Original Filed Documents private on SEDAR pending granting of this decision.
The Filer acknowledges that making the Original Filed Documents private on SEDAR does not guarantee that the Original Filed Documents are not available elsewhere in the public domain.
Decision
The Principal Regulator in the Jurisdiction 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 in the Jurisdiction under the Legislation is that the Exemption Sought is granted.
“Paulette Kennedy” “Wesley Scott”
Commissioner Commissioner
Ontario Securities Commission Ontario Securities Commission