Ontario Commission des 22nd Floor 22e étage
Securities valeurs mobilières 20 Queen Street West 20, rue queen ouest
Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8
January 8, 2021
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
Australis Capital Inc.
(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 (the Legislation), being section 140(2) of the Securities Act (Ontario), that the requirement for public inspection of records not apply to the version of the Filer’s management information circular dated October 6, 2020 that was erroneously filed on the System for Electronic Document Analysis and Retrieval (SEDAR) on October 13, 2020 (the Incorrect Circular) and that the Incorrect Circular be held in confidence 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 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 British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, the Northwest Territories and Nunavut.
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 a corporation formed under the Business Corporations Act (Alberta);
the Filer’s head office is located in Las Vegas, Nevada and its registered and records office is located in Calgary, Alberta;
the common shares of the Filer are listed on the Canadian Securities Exchange;
the Filer is a reporting issuer in all of the provinces and territories in Canada;
the Filer is not in default of any securities legislation in any jurisdiction of Canada;
on October 13, 2020, the Filer filed the Incorrect Circular on SEDAR in accordance with Part 9 of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102), which contained inaccuracies and outdated information that could be misleading to shareholders, including naming the incorrect slate of dissident nominee directors (the Misleading Information);
following discussions with staff of the British Columbia Securities Commission (BCSC), on October 14, 2020, the Filer filed the correct management information circular (Correct Circular), without the Misleading Information, on SEDAR in accordance with Part 9 of NI 51-102 and staff of the BCSC temporarily marked the Incorrect Circular private on SEDAR pending the decision of the principal regulator;
The Misleading Information could potentially prejudice the interests of the inaccurately named dissident shareholders’ director nominee;
the Incorrect Circular has been superseded in its entirety by the Correct Circular and leaving both the Incorrect Circular and the Correct Circular on SEDAR could cause confusion amongst investors;
the making and keeping private of the Incorrect Circular will not adversely affect investors or impact any investment decision made by an investor with respect to the Filer and therefore, there would be no prejudice or harm to the public as a result of the Incorrect Circular remaining private;
the desirability of avoiding further disclosure of the Incorrect Circular outweighs the desirability of adhering to the principle that such material be available to the public for inspection, and disclosure of the Misleading Information is not necessary in the public interest; and
the Filer acknowledges that making the Incorrect Circular private on SEDAR does not guarantee that the Incorrect Circular is not available elsewhere in the public domain.
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.
“Heather Zordel” “Mary Anne De Monte-Whelan”
Commissioner Commissioner
Ontario Securities Commission Ontario Securities Commission