Headnote
National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions - Securities Act (Ontario) – Application to vary a decision of the Commission - Reporting issuer seeking relief so that it can continue to file financial statements in accordance with old Canadian GAAP (rather than IFRS) – Issuer previously granted relief for periods relating to the Filer’s financial year beginning on January 1, 2011 and ending on December 31, 2011 and the Filer’s financial year beginning January 1, 2012 and ending December 31, 2012 (collectively, the issuer's deferred financial years) – Issuer applied for a variation to extend the issuers deferred financial years for one additional year to include the Filer’s financial year beginning January 1, 2013 and ending on December 31, 2013 – In particular, the issuer is seeking relief from the requirements in Part 3 of National Instrument 52-107 that would apply to financial statements for periods relating to the issuer's deferred financial years - The issuer is also seeking relief from the IFRS-related amendments to the continuous disclosure, prospectus, certification and audit committee rules (collectively, the rules) that came into force on January 1, 2011 and that would apply to periods relating to the issuer's deferred financial years - The issuer is an "investment company" as defined in Accounting Guideline 18 Investment Companies (AcG-18) in the Handbook of the Canadian Institute of Chartered Accountants - The Canadian Accounting Standards Board decided that investment companies, as defined in and applying AcG-18, will only be required to adopt IFRS for annual periods beginning on or after January 1, 2014 - Relief granted, subject to a number of conditions.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c.S.5, as am., s. 144. National Instrument 52-107 Acceptable Accounting Principles and Auditing Standards, Parts 3 and 4 National Instrument 51-102 Continuous Disclosure Obligations National Instrument 41-101 General Prospectus Requirements National Instrument 44-101 Short Form Prospectus Distributions National Instrument 44-102 Shelf Distributions National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings National Instrument 52-110 Audit Committees
December 20, 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 SILVER BULLION TRUST (the “Filer”)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer under the securities legislation of the Jurisdiction of the principal regulator (the “Legislation”) for a variation of a decision dated November 4, 2011 (the “Prior Exemption Order”) which exempted the Filer from:
(a) the requirements in Part 3 of National Instrument 52-107 Acceptable Accounting Principles and Auditing Standards (“NI 52-107”) that apply to financial statements, financial information, operating statements and pro forma financial statements for periods relating to the Filer’s financial year beginning on January 1, 2011 and ending on December 31, 2011 and the Filer’s financial year beginning on January 1, 2012 and ending on December 31, 2012 (the “Filer’s deferred financial years”), including without limitation, the interim financial statements and associated management discussion and analysis of the Filer for the following periods: (i) the three month period ended March 31, 2012 filed on April 27, 2012; and (ii) the three month and six month periods ended June 30, 2012 filed on July 26, 2012 (together, the “Interim Financial Statements”);
(b) the amendments to National Instrument 51-102 Continuous Disclosure Obligations (“NI 51-102”) related to International Financial Reporting Standards (“IFRS”) that came into force on January 1, 2011 and that apply to documents required to be prepared, filed, delivered, or sent under NI 51-102 for periods relating to the Filer’s deferred financial years;
(c) the IFRS-related amendments to National Instrument 41-101 General Prospectus Requirements (“NI 41-101”) that came into force on January 1, 2011 and that apply to a preliminary prospectus, an amendment to a preliminary prospectus, a final prospectus or an amendment to a final prospectus of the Filer which includes or incorporates by reference financial statements of the Filer in respect of periods relating to the Filer’s deferred financial years;
(d) the IFRS-related amendments to National Instrument 44-101 Short Form Prospectus Distributions (“NI 44-101”) that came into force on January 1, 2011 and that apply to a preliminary short form prospectus, an amendment to a preliminary short form prospectus, a final short form prospectus or an amendment to a final short form prospectus of the Filer which includes or incorporates by reference financial statements of the Filer in respect of periods relating to the Filer’s deferred financial years;
(e) the IFRS-related amendments to National Instrument 44-102 Shelf Distributions (“NI 44-102”) that came into force on January 1, 2011 and that apply to a preliminary base shelf prospectus, an amendment to a preliminary base shelf prospectus, a base shelf prospectus, an amendment to a base shelf prospectus or a shelf prospectus supplement of the Filer which includes or incorporates by reference financial statements of the Filer in respect of periods relating to the Filer’s deferred financial years;
(f) the IFRS-related amendments to National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (“NI 52-109”) that came into force on January 1, 2011 and that apply to annual filings and interim filings for periods relating to the Filer’s deferred financial years; and
(g) the IFRS-related amendments to National Instrument 52-110 Audit Committees (“NI 52-110”) that came into force on January 1, 2011 and that apply to periods relating to the Filer’s deferred financial years.
The Filer applies to the principal regulator for a variation of the Prior Exemption Order such that the Filer’s deferred financial years be extended to include the Filer’s financial year beginning January 1, 2013 and ending December 31, 2013 (the “Variation Sought”).
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 all provinces and territories in Canada with the exception 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 Filer, in support of the Prior Exemption Order, that:
The Filer was established pursuant to a declaration of trust dated June 8, 2009, as amended and restated on July 9, 2009.
The Filer’s registered and head office address is located at 55 Broad Leaf Crescent, Ancaster, Ontario, L9G 3P2.
The Filer is a reporting issuer in all provinces and territories in Canada and to its knowledge is not in default of securities legislation in any jurisdiction.
The Filer’s trust units trade on the Toronto Stock Exchange under the symbols “SBT.UN” (Cdn. $) and “SBT.U” (US $).
The Filer’s fiscal year end is December 31.
The Filer is an “investment company” as defined in Accounting Guideline 18 Investment Companies (“AcG-18”) in the Handbook of the Canadian Institute of Chartered Accountants (the “Handbook”). As such, the Filer applies AcG-18 in the preparation of its financial statements in accordance with Canadian generally accepted accounting principles (“Canadian GAAP”) for public enterprises.
The Filer is not an investment fund as that term is defined in the Securities Act (Ontario).
As part of the changeover to IFRS in Canada, the Canadian Accounting Standards Board (“AcSB”) has incorporated IFRS into the Handbook as Canadian GAAP for most publicly accountable enterprises. As a result, the Handbook contains two sets of standards for public companies:
(a) Part 1 of the Handbook- Canadian GAAP for publicly accountable enterprises that applies for financial years beginning on or after January 1, 2011; and
(b) Part V of the Handbook- Canadian GAAP for public enterprises that is the pre-changeover accounting standards (“pre-changeover Canadian GAAP”).
On October 1, 2010, the AcSB published amendments to Part 1 of the Handbook that provided a one-year deferral of the transition to IFRS for investment companies. The amendments required investment companies, as defined in and applying AcG-18, to adopt IFRS for annual periods beginning on or after January 1, 2012. Subsequently, at its meeting on January 12, 2011, the AcSB decided to extend the deferral for an additional year. The AcSB amended Part 1 of the Handbook so that investment companies, as defined in and applying AcG-18, will only be required to adopt IFRS for annual periods beginning on or after January 1, 2013.
As part of the changeover to IFRS, NI 52-107 was repealed and replaced effective January 1, 2011. In the new version of NI 52-107,
(a) Part 3 contains requirements based on IFRS and applies to financial statements, financial information, operating statements and pro forma financial statements for periods relating to financial years beginning on or after January 1, 2011; and
(b) Part 4 contains requirements based on pre-changeover Canadian GAAP and applies to financial statements, financial information, operating statements and pro forma financial statements for periods relating to financial years beginning before January 1, 2011.
- Also as part of the changeover to IFRS, IFRS-related amendments were made to NI 51-102, NI 41-101, NI 44-101, NI 44-102, NI 52-109 and NI 52-110 (collectively, the “Rules”) and these amendments came into force on January 1, 2011. Among other things, the amendments replaced pre-changeover Canadian GAAP terms and phrases with IFRS terms and phrases and contain IFRS-specific requirements. The amendment instruments for the Rules contain transition provisions that provide that the IFRS-related amendments only apply to documents required to be filed under the Rules for periods relating to financial years beginning on or after January 1, 2011. Thus, during the IFRS transition period,
(a) issuers filing financial statements prepared in accordance with pre-changeover Canadian GAAP will be required to comply with the versions of the Rules that contain pre-changeover Canadian GAAP terms and phrases, and
(b) issuers filing financial statements that comply with IFRS will be required to comply with the version of the Rules that contain IFRS terms and phrases and IFRS-specific requirements.
On October 8, 2010, the Canadian Securities Administrators (“CSA”) published CSA Staff Notice 81-320 Update on International Financial Reporting Standards for Investment Funds which indicated that, given the October 1, 2010 amendments to the Handbook that provided for a deferral of the transition to IFRS for investment companies, the CSA would defer finalizing IFRS-related amendments to rules related to investment funds.
NI 52-107 and the Rules apply to the Filer. Since Part 3 of NI 52-107 and the IFRS-related amendments to the Rules do not have a provision providing for a two-year deferral of the transition to IFRS for investment companies subject to NI 52-107 and the Rules, the Filer applied for the original exemption granted in the Prior Exemption Order.
During the Filer’s deferred financial years, the Filer has complied with, and continues to comply with, section 1.13 of Form 51-102F1 Management’s Discussion and Analysis (“MD&A”) by providing an updated discussion of the Filer’s preparations for changeover to IFRS in its annual and interim MD&A. In particular, the Filer will discuss the expected effect on the financial statements, or state that the effect cannot be reasonably estimated.
The Interim Financial Statements were not prepared in accordance with IFRS pursuant to Part 3 of NI 52-107.
The Filer has represented the following additional facts in support of the Variation Sought:
Consistent with the terms of the Prior Exemption Order, for the years ended December 31, 2011 and for the current year ending December 31, 2012, the Applicant has applied, and continues to apply, AcG-18 in the preparation of its financial statements.
The AcSB has again deferred the transition to IFRS for investment companies. On February 29, 2012, the AcSB issued amendments to the CICA Handbook to further defer the adoption of IFRS by investment companies from January 1, 2013 to January 1, 2014.
On March 30, 2012, the CSA published a revised CSA Staff Notice 81-320 (Revised) Update on International Financial Reporting Standards for Investment Funds, which indicates that the CSA intend to defer the adoption of IFRS by investment funds under NI 81-106 until January 1, 2014.
The Filer acknowledges that if the Variation Sought is granted, the Filer:
(a) will be subject to Part 3 of NI 52-107 and the IFRS-related amendments to the Rules for periods relating to financial years beginning on or after January 1, 2014; and
(b) will not have the benefit of the 30 day extension to the deadline of filing the first interim financial report in the year of adopting IFRS in respect of an interim period beginning on or after January 1, 2011, as set out in the IFRS-related amendments to NI 51-102, since that extension does not apply if the first interim financial report is in respect of an interim period ending after March 30, 2012.
Decision
The Principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make a decision.
The decision of the principal regulator under the Legislation is that the Variation Sought is granted provided that:
the Filer continues to be an investment company, as defined in and applying AcG-18;
the Filer provides the communication as described and in the manner set out in paragraph 14 above;
the Filer complies with the requirements in Part 4 of NI 52-107 for all financial statements (including interim financial statements), financial information, operating statements and pro forma financial statements for periods relating to the Filer’s deferred financial years, as if the expression “January 1, 2011” in subsection 4.1(2) were read as “January 1, 2014”;
the Filer complies with the version of NI 51-102 that was in effect on December 31, 2010 (together with any amendments to NI 51-102 that are not related to IFRS and that come into force after January 1, 2011) for all documents required to be prepared, filed, delivered, or sent under NI 51-102 for periods relating to the Filer’s deferred financial years;
the Filer complies with the version of NI 41-101 that was in effect on December 31, 2010 (together with any amendments to NI 41-101 that are not related to IFRS and that come into effect after January 1, 2011) for any preliminary prospectus, amendment to a preliminary prospectus, final prospectus or amendment to a final prospectus of the Filer which includes or incorporates by reference financial statements of the Filer in respect of periods relating to the Filer’s deferred financial years;
the Filer complies with the version of NI 44-101 that was in effect on December 31, 2010 (together with any amendments to NI 44-101 that are not related to IFRS and that come into effect after January 1, 2011) for any preliminary short form prospectus, amendment to a preliminary short form prospectus, final short form prospectus or amendment to a final short form prospectus of the Filer which includes or incorporates by reference financial statements of the Filer in respect of periods relating to the Filer’s deferred financial years;
the Filer complies with the version of NI 44-102 that was in effect on December 31, 2010 (together with any amendments to NI 44-102 that are not related to IFRS and that come into effect after January 1, 2011) for any preliminary base shelf prospectus, amendment to a preliminary base shelf prospectus, base shelf prospectus, amendment to a base shelf prospectus or shelf prospectus supplement of the Filer which includes or incorporates by reference financial statements of the Filer in respect of periods relating to the Filer’s deferred financial years;
the Filer complies with the version of NI 52-109 that was in effect on December 31, 2010 (together with any amendments to NI 52-109 that are not related to IFRS and that come into effect after January 1, 2011) for all annual filings and interim filings for periods relating to the Filer’s deferred financial years;
the Filer complies with the version of NI 52-110 that was in effect on December 31, 2010 (together with any amendments to NI 52-110 that are not related to IFRS and that come into effect after January 1, 2011) for periods relating to the Filer’s deferred financial years;
if, notwithstanding this decision, the Filer decides not to rely on the Variation Sought and files an interim financial report prepared in accordance with IFRS for an interim period in a deferred financial year, the Filer must, at the same time:
(a) restate, in accordance with IFRS, any interim financial statements for any previous interim period in the same deferred financial year (each, a “Previous Interim Period”) that were originally prepared in accordance with pre-changeover Canadian GAAP and filed pursuant to this decision, and
(b) file a restated interim financial report prepared in accordance with IFRS for each Previous Interim Period, together with corresponding restated interim MD&A and certificates required by NI 52-109. For greater certainty, any restated interim financial report for a Previous Interim Period must comply with applicable securities legislation (including Part 3 of NI 52-107 and the amendments to Part 4 of NI 51-102 that came into force on January 1, 2011) and any restated interim financial report for the first interim period in the deferred financial year must include the opening IFRS statement of financial position at the date of transition to IFRS; and
- if, notwithstanding this decision, the Filer decides not to rely on the Variation Sought and files annual financial statements prepared in accordance with IFRS for a deferred financial year, the Filer must, at the same time (unless previously done pursuant to paragraph 10 immediately above):
(a) restate, in accordance with IFRS, any interim financial statements for any Previous Interim Period that were originally prepared in accordance with pre-changeover Canadian GAAP and filed pursuant to this decision, and
(b) file a restated interim financial report prepared in accordance with IFRS for each Previous Interim Period, together with corresponding restated interim MD&A and certificates required by NI 52-109. For greater certainty, any restated interim financial report for a Previous Interim Period must comply with applicable securities legislation (including Part 3 of NI 52-107 and the amendments to Part 4 of NI 51-102 that came into force on January 1, 2011) and any restated interim financial report for the first interim period in the deferred financial year must include the opening IFRS statement of financial position at the date of transition to IFRS.
“Cameron McInnis”
Chief Accountant
Ontario Securities Commission