In the Matter of IBI Group Inc., 2010 CanLII 79513

Headnote National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – exemption granted to a successor issuer from the requirement to file a notice declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the filing of a preliminary short form prospectus – disclosure regarding the predecessor issuer will effectively be the disclosure of the successor issuer – predecessor issuer is qualified to file a short form prospectus. Applicable Legislative Provisions National Instrument 44-101 Short Form Prospectus Distributions

January 6th, 2011

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 IBI GROUP INC. (the Applicant)

DECISION

Background

The regulator in the Jurisdiction (the Decision Maker) has received an application from the Applicant for a decision under the securities legislation of the Jurisdiction (the Legislation) pursuant to section 8.1 of National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101) exempting the Applicant from the requirement under section 2.8 of NI 44-101 for the Applicant to file a notice (the Notice of Intention) declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the filing of its first preliminary short form prospectus (the Preliminary Prospectus) after the notice (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 Applicant 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 all provinces and territories of Canada other than the Province of Ontario.

Interpretation

Terms defined in National Instrument 14-101 Definitions and 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 Applicant:

The Applicant

1. The Applicant was incorporated under the laws of Ontario on June 30, 2010 for the purpose of becoming the successor issuer to IBI Income Fund (the Fund) as a result of the Conversion (as defined below).

2. The head office of the Applicant is located at 230 Richmond Street West, 5th Floor, Toronto, Ontario, M5V 1V6.

3. The authorized share capital of the Applicant consists of an unlimited number of common shares (Common Shares).

4. The Applicant has not conducted any business or operations, other than (i) to take all such steps necessary to complete the Conversion, and (ii) since the completion of the Conversion, the continued operation of the business of the Fund as described in paragraph 14(b) below.

5. The Applicant was not prior to the Conversion a reporting issuer in any jurisdiction of Canada and is not in default under securities legislation in such jurisdictions.

The Fund

6. The Fund is an unincorporated, open-ended limited purpose trust established under the laws of the Province of Ontario pursuant to a declaration of trust made as of August 31, 2004.

7. The Fund is a reporting issuer in each of the provinces and territories of Canada and is not in default under securities legislation in such jurisdictions.

8. The Fund is qualified to file a short form prospectus pursuant to section 2.2 of NI 44-101.

The Conversion

9. The Fund has undertaken a conversion into a corporation by way of a statutory plan of arrangement (the Conversion). Under the Conversion, the holders of units of the Fund (the Unitholders) exchanged their respective units for Common Shares.

10. The Conversion was approved by the Unitholders at the Special Meeting of Unitholders held on August 5, 2010 (the Meeting) and a management information circular dated July 13, 2010 (the Information Circular) was prepared and mailed to Unitholders in connection with the Conversion and the Meeting and filed by the Fund on July 14, 2010.

11. The Information Circular complied with applicable securities legislation and included disclosure in accordance with Item 14.2 of Form 51-102F5 for the Applicant.

12. The Conversion was approved by a final order dated August 10, 2010 of the Ontario Superior Court of Justice pursuant to subsection 182(5) of the Business Corporations Act (Ontario).

13. The Conversion became effective on January 1, 2011.

14. Upon completion of the Conversion,

(a) Common Shares were distributed to Unitholders in exchange for their Units on a one-for-one basis and the Common Shares were listed on the Toronto Stock Exchange;

(b) the sole business of the Applicant is the business of the Fund prior to the Conversion (the Conversion does not contemplate the acquisition of any additional operating assets or the disposition of any existing operating assets);

(c) the Applicant is a reporting issuer in each of the provinces and territories of Canada; and

(d) the Applicant is a “successor issuer” to the Fund as defined in NI 44-101.

Exemption Sought

15. Following the Conversion, the Applicant will be qualified to file a short form prospectus on the basis that it will satisfy the requirements of subsections 2.2(a), (b), (c) and (e) of NI 44-101 and, as a successor issuer, can make use of the exemption provided under subsection 2.7(2) of NI 44-101 with respect to subsection 2.2(d) of NI 44-101.

16. The Applicant anticipates that it may wish to file a Preliminary Prospectus following the Conversion relating to the offering of securities of the Applicant.

17. Notwithstanding section 2.2 of NI 44-101, subsection 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 declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the issuer filing its first preliminary short form prospectus.

18. Following the effective date of the Conversion, the Applicant filed on January 4, 2011 a notice declaring its intention to be qualified to file a short form prospectus.

19. The Applicant will not satisfy the requirement of subsection 2.8(1) of NI 44-101 before January 18, 2011, and will not be qualified to file the Preliminary Prospectus before that date, unless the Exemption Sought is granted.

Decision

The Decision Maker 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 Maker under the Legislation is that the Exemption Sought is granted, provided that, at the time the Applicant files the Preliminary Prospectus, the Applicant meets the requirements of:

(a) subsections 2.2(a), (b), (c) and (e) of NI 44-101, and

(b) the exemption for successor issuers set forth in subsection 2.7(2) of NI 44-101.

This decision will terminate on the earlier of (i) January 18, 2011, the date which is 10 business days following the filing of the Notice of Intention, and (ii) the date the Preliminary Prospectus is filed.

“Jo-Anne Matear”

Assistant Manager Ontario Securities Commission