Headnote National Policy 11-203 Process for Exemptive Relief in Multiple Jurisdictions – relief from section 8.2 of National Instrument 51-102Continuous Disclosure Obligations (NI 51-102) which would otherwise require filer to file a business acquisition report pursuant to section 13.1 of NI 51-102 – filer has experienced significant growth in assets since the date of its most recently filed financial statements – relief granted to permit significance to be calculated based on more recent financial information.
Applicable Legislative Provisions
National Instrument 51-102 Continuous Disclosure Obligations, ss. 8.2, 13.1.
DATE: September 25, 2012
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
TRUE NORTH APARTMENT
REAL ESTATE INVESTMENT TRUST (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) for an order under Section 13.1 of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) exempting the Filer from the requirements of section 8.2 of NI 51-102 for the Acquisition (as defined below) (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(i) the Ontario Securities Commission is the principal regulator for this application (the Principal Regulator); and
(ii) the Filer 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 each of the other provinces and territories of Canada.
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 Filer:
The Filer is an unincorporated open-end real estate investment trust established under the laws of the Province of Ontario. The Filer’s registered and head office is located at 401 The West Mall, Suite 1100, Toronto, Ontario, M9C 5J5.
On June 5, 2012, Wand Capital Corporation (Wand Capital) completed its capital pool company qualifying transaction by way of a plan of arrangement under the Business Corporations Act (Ontario) with the Filer. As a result, the Filer became a reporting issuer in each of British Columbia, Alberta and Ontario. On July 11, 2012, as a result of the issuance of a receipt for a (final) short form prospectus, the Filer became a reporting issuer in every province and territory in Canada. To the best of its knowledge, the Filer is currently not in default of any applicable requirements under the securities legislation of any of the provinces or territories of Canada.
The units of the Filer are listed and posted on the TSX Venture Exchange under the symbol “TN.UN”.
On August 31, 2012, the Filer acquired, through its subsidiary entity True North Limited Partnership, a property (the Trossacks Property) from an arm’s length vendor (the Vendor) for a purchase price of approximately $17.5 million (the Acquisition).
The Acquisition constitutes a “significant acquisition” of the Filer for the purposes of NI 51-102, as determined in accordance with the significance tests set out in section 8.3 of NI 51-102. These tests calculate significance based on the most recent annual or interim financial statements of an issuer, depending upon the test that is used. The Filer is therefore required to file a business acquisition report within 75 days of August 31, 2012 pursuant to section 8.2 of NI 51-102.
The Filer’s financial statements for the period ended January 31, 2012 were prepared for Wand Capital and are not reflective of the current size of the Filer. The Filer’s interim financial statements for the period ended March 31, 2012 reflect assets of approximately $4.6 million. The Filer’s interim financial statements for the period ended June 30, 2012 reflect assets of approximately $15.4 million.
A business acquisition report filed by the Filer dated August 14, 2012 incorporates financial statements from a short form prospectus of the Filer dated July 11, 2012. These financial statements include pro forma financial statements (the Pro Forma Financial Statements) that take into account two recent acquisitions completed by the Filer and reflect assets of approximately $140.8 million. These acquisitions are not reflected in the Filer’s most recent interim financial statements, for the period ended June 30, 2012.
Calculating significance based on the assets reflected in the Pro Forma Financial Statements recognizes the growth of the Filer between June 30, 2012 and the date of the Acquisition, and the actual size of the Filer at the time of the Acquisition, more accurately than does a calculation of significance based on the most recent annual or interim financial statements of the Filer.
Based on the Filer’s assets of $140.8 million as reflected in the Pro Forma Financial Statements, the Acquisition would represent approximately 11% of the Filer’s assets and would not be a significant acquisition.
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.
“Shannon O’Hearn”
Shannon O’Hearn
Manager, Corporate Finance Branch Ontario Securities Commission