In the Matter of FMS Capital Trust, 2025 CanLII 114266

November 6, 2025

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

FMS CAPITAL TRUST (the Filer)

DECISION

Background

The principal regulator in the Jurisdiction (the Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the Decision Maker (the Legislation) for a decision pursuant to Section 13.1 of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) that the Filer be exempt from the requirement under Section 8.4 of NI 51-102 and Item 3 of Form 51-102F4 Business Acquisition Report to include financial statement disclosure for significant acquisitions, provided that the Filer include or incorporate by reference the Alternative Acquisition Financial Disclosures (as defined herein) of the Filer relating to the Acquisition Transaction (as defined herein) in the business acquisition report (BAR) (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, Prince Edward Island, New Brunswick, Nova Scotia and Newfoundland and Labrador (collectively, together with Ontario, the Jurisdictions).

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:

1. The head and registered office of the Filer is located at Brookfield Place East Podium, 2^nd Floor, 181 Bay Street, Toronto, Ontario, M5J 2T3.

2. The Filer is a “closed-end” unincorporated investment trust established under the laws of the Province of Ontario pursuant to a declaration of trust dated as of June 14, 2025, as amended and restated as of August 12, 2025, as may be further amended and/or amended and restated from time to time thereafter.

3. The Filer is a reporting issuer or the equivalent thereof in each Jurisdiction and is not in default of any requirement of Canadian securities legislation.

4. The Filer is asset managed by FMS Manager LP (the Manager), a joint venture between Forum Asset Management Inc. and Make Space Inc., operating as Forum Make Space (FMS). The Manager has been engaged by the Filer to, among other things, provide the Filer with the strategic, advisory, asset management, administrative, property management, leasing, construction management and administrative services necessary to manage the day-to-day operations of the Filer.

5. The Filer was established for the primary purpose of indirectly acquiring, owning and operating a portfolio composed of income-producing self-storage properties. The initial portfolio of the Filer is comprised of three existing self-storage properties located in Ontario, Canada (collectively, the Acquisition Properties).

6. The Acquisition Properties consist of a (a) 100% interest in a self-storage property located in Belleville, Ontario consisting of approximately 620 storage units and approximately 300 vehicle storage units (the Bellevue Property); (b) 100% interest in a self-storage property located in Trenton, Ontario and Frankford, Ontario consisting of approximately 480 storage units (the Pines Property); and (c) 100% interest in a self-storage property located in Trenton, Ontario consisting of approximately 450 storage units and approximately 50 vehicle storage units (the Trenton Property).

7. No exemption is required with respect to the financial information to be included in the BAR with respect to the Bellevue Property and the Trenton Property. The Exemption Sought is only required with respect to the Pines Property.

8. The interests in the Filer are divided into one class with three series of trust units (Units): class A trust units (Class A Units), class C trust units (Class C Units) and class F trust units (Class F Units).

9. The Filer is authorized to issue an unlimited number of Units of each series and, as at the date hereof, there are 5,148,450 Units outstanding. However, as a “closed-end” issuer, subsequent to its IPO (as defined herein), the Filer is generally prohibited from issuing any new Units to the public.

10. On August 13, 2025, the principal regulator issued a receipt in respect of the final prospectus of the Filer (the Prospectus) relating to the initial public offering (the IPO) of up to $60,000,000 Class A Units and/or Class F Units.

11. On August 27, 2025, the Filer completed (i) the IPO of trust units, pursuant to which, the Filer issued an aggregate of approximately $51.5 million of trust units, comprised of 2,064,950 Class A Units and 2,822,000 Class F Units of the Filer; and (ii) a non-brokered private placement of 261,500 Class C Units of the Filer.

12. None of the securities of the Filer are listed on a stock exchange.

13. On August 29, 2025, the Filer completed its indirect acquisition of the Acquisition Properties for an aggregate purchase price of approximately $42,000,000, satisfied, in part, by cash from the net proceeds of the IPO (the Acquisition Transaction).

14. The fiscal year end for each of the Acquisition Properties is December 31.

15. The Acquisition Transaction is a “significant acquisition” for purposes of NI 51-102 and the Filer must file a BAR in respect of the Acquisition Transaction.

16. Unless otherwise exempted pursuant to Section 13.1 of NI 51-102, the BAR must include or incorporate by reference the financial statements set out in Section 8.4 of NI 51-102 relating to each of the Acquisition Properties (the BAR Financials), respectively, which are as follows:

(a) (A) audited carve-out statements of income and comprehensive income, net assets attributable to the owner and cash flows for the twelve month period ended December 31, 2024, including comparatives for the twelve month period ended December 31, 2023 (which may be unaudited); and (B) audited carve-out statements of financial position as at December 31, 2024 including comparative statements of financial position as at December 31, 2023 (which may be unaudited); and

(b) (A) unaudited carve-out statements of income and comprehensive income, net assets attributable to the owner and cash flows for the three month period ended March 31, 2025, including comparatives for the three month period ended March 31, 2024; and (B) unaudited carve-out statements of financial position as at March 31, 2025 including comparative statements of financial position as at December 31, 2024.

17. Prior to its indirect acquisition by the Filer, the Pines Property was indirectly owned by a fund managed by FMS (the Existing Fund). The Existing Fund acquired the Pines Property on April 5, 2024 from an arm’s length third party (the Previous Pines Property Owner).

18. The Filer and the Existing Fund have, without success, made every reasonable effort to obtain access to, or copies of, historical accounting records in respect of the Pines Property for the period from January 1, 2023 to April 4, 2024 to form part of the BAR Financials. In particular, the Previous Pines Property Owner has not responded to multiple requests for assistance, at this time, related to making available such historical accounting records to the Existing Fund and the Filer. Accordingly, the Filer is unable to obtain the aforementioned financial records in respect of the Pines Property.

19. The following financial information in respect of the Acquisition Properties (collectively, the Alternative Acquisition Financial Disclosures) were included in the Prospectus:

(a) financial statements for the Acquisition Properties (collectively, the Acquisition Properties Financials) as follows (each prepared in accordance with IFRS):

(i) audited combined carve-out statements of financial position as at December 31, 2024 and 2023 and January 1, 2023 (which includes the financial position in respect of the Bellevue Property as at December 31, 2024 and 2023 and the financial position in respect of the Trenton Property and the Pines Property as at December 31, 2024),

(ii) audited combined carve-out statements of income and comprehensive income, net assets attributable to the owner and cash flows for the years ended December 31, 2024 and 2023 (which includes the financial results of the Bellevue Property for 2024 and 2023, respectively, and the results of the Trenton Property and the Pines Property for the portion of 2024 from the respective dates of acquisition of the Trenton Property and the Pines Property to December 31, 2024),

(iii) unaudited condensed interim combined carve-out statements of financial position as at March 31, 2025 and December 31, 2024, and

(iv) unaudited condensed interim combined carve-out statements of income and comprehensive income, net assets attributable to the owner and cash flows for the three-month period ended March 31, 2025, together with comparative financial information for the three-month period ended March 31, 2024 (which includes the comparative financial results in respect of the Bellevue Property for the three-month period ended March 31, 2024, the Trenton Property for the 10 day period from acquisition on March 21, 2024 to March 31, 2024, and no comparative results for the Pines Property);

(b) in respect of the Trenton Property: (i) audited combined carve-out statements of financial position as at March 21, 2024, December 31, 2023, and January 1, 2023; and (ii) audited combined carve-out statements of income and comprehensive income, net assets attributable to owners and cash flows in respect of the Trenton Property for the 81 day period ended March 21, 2024 and the year ended December 31, 2023 (the Trenton Carve-Out Statements); and

(c) summary information of independent appraisals of the fair market value of each of the Acquisition Properties, dated May 13, 2025 in respect of both the Trenton Property and the Pines Property, and dated November 22, 2024 in respect of the Belleville Property, such appraisals having been filed on SEDAR+.

20. The Filer submits that the excluded financial information that is missing from the BAR is not material and will be adequately covered by the Alternative Acquisition Financial Disclosures, on the basis of the de minimis proportion of key financial statement metrics (including asset value, revenue for 2024 and projected for 2025 and net operating income for 2024 and projected for 2025) that is represented by the periods not covered by the audited financials statements.

21. The financial information the Filer intends to provide in the BAR in respect of the Pines Property is substantially the same as that provided in the Prospectus, for which the Filer obtained similar relief from Item 32.2(1) of Form 41-101F1 Information Required in a Prospectus.

22. Consequently, in lieu of the BAR Financials, the Filer intends to include in the BAR the Alternative Acquisition Financial Disclosures described above.

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 with respect to the BAR provided that the Filer includes the Alternative Acquisition Financial Disclosures in the BAR in respect of the Acquisition Transaction.

“Lina Creta”

Lina Creta

Associate Vice President, Corporate Finance

Ontario Securities Commission

OSC File#: 2025/0611