Ontario Securities Commission Bulletin
Issue 45/38 - September 22, 2022
Ont. Sec. Bull. Issue 45/38
• Plateau Energy Metals Inc. et al.
• Jiubin Feng and CIM International Group Inc.
• First Global Data Ltd. et al.
• Durham Asset Management Inc. and Dami Corporate Bond Fund
• Black Swan Graphene Inc. -- s. 1(11)b)
• Spyglass Resources Corp. -- s. 144(1)
• SEI Investments Canada Company and Long Duration Credit Bond Fund
• Pembroke Private Wealth Management Ltd. and Pembroke Canadian All Cap Fund
• Temporary, Permanent & Rescinding Issuer Cease Trading Orders
• Temporary, Permanent & Rescinding Management Cease Trading Orders
Clearing Agencies
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Plateau Energy Metals Inc. et al.
FOR IMMEDIATE RELEASE
September 14, 2022
TORONTO -- The Tribunal issued an Order in the above named matter.
A copy of the Order dated September 14, 2022 is available at capitalmarketstribunal.ca.
For Media Inquiries:
For General Inquiries:
Jiubin Feng and CIM International Group Inc.
FOR IMMEDIATE RELEASE
September 14, 2022
TORONTO -- Take notice of the merits hearing time change on September 19, 2022 in the above named matter. The hearing on September 19, 2022 scheduled to commence at 10:00 a.m. will instead commence at 8:30 a.m.
For Media Inquiries:
For General Inquiries:
FOR IMMEDIATE RELEASE
September 15, 2022
TORONTO -- The Tribunal issued an Order in the above named matter.
A copy of the Order dated September 15, 2022 is available at capitalmarketstribunal.ca.
For Media Inquiries:
For General Inquiries:
FOR IMMEDIATE RELEASE
September 16, 2022
TORONTO -- Take notice that the merits hearing scheduled to be heard on September 20 to 23, 2022 will not proceed as scheduled in the above matter.
For Media Inquiries:
For General Inquiries:
FOR IMMEDIATE RELEASE
September 16, 2022
TORONTO -- The Tribunal issued the following in the above matter.
1. Reasons for Decision, dated September 15, 2022
2. Reasons for Decision on a Motion, dated September 15, 2022
3. Reasons and Decision on the Merits, dated September 15, 2022
Copies of each of the reasons are available at capitalmarketstribunal.ca.
For Media Inquiries:
For General Inquiries:
Plateau Energy Metals Inc. et al.
File No. 2021-16
Adjudicators: |
M. Cecilia Williams (chair of the panel) |
Geoffrey D. Creighton |
September 14, 2022
WHEREAS on September 14, 2022 the Capital Markets Tribunal held a hearing by videoconference;
ON HEARING the submissions of the representatives for Staff of the Commission and for each of Plateau Energy Metals Inc., Alexander Francis Cuthbert Holmes and Philip Neville Gibbs;
IT IS ORDERED THAT:
1. each respondent shall serve notice of intent to call an expert and their responding expert report, if any, on every other party by 4:30 p.m. on September 28, 2022;
2. each respondent shall file their notice of intent to call an expert and their responding expert report, if any, by 4:30 p.m. on October 5, 2022;
3. reply evidence, if any, from Staff's expert witness shall be provided orally at the merits hearing; and
4. if Staff elects to file an affidavit for their witness Marcel Tillie, the affidavit:
a. shall be served on each respondent by 4:30 p.m. on September 21, 2022; and
b. shall be filed by 4:30 p.m. on October 5, 2022.
File No. 2022-19
Adjudicator: |
Andrea Burke |
September 15, 2022
WHEREAS on September 15, 2022, the Capital Markets Tribunal held a hearing by videoconference;
ON HEARING the submissions of the representatives for Staff of the Ontario Securities Commission (Staff) and for the respondents;
IT IS ORDERED THAT:
1. by October 13, 2022, Staff shall disclose to the respondents the non-privileged, relevant documents and things in Staff's possession or control;
2. by December 30, 2022, the respondents shall serve and file a motion, if any, regarding Staff's disclosure or seeking disclosure of additional documents;
3. by January 5, 2023, Staff shall:
a. serve and file a witness list,
b. serve a summary of each witness's anticipated evidence, and
c. indicate any intention to call an expert witness, including providing the expert's name and the issues on which the expert will give evidence; and
4. a further attendance in this matter is scheduled for January 12, 2023, at 10:00 a.m., by videoconference, or on such other date and time as may be agreed to by the parties and set by the Governance & Tribunal Secretariat.
Citation: First Global Data Ltd (Re), 2022 ONCMT 23
Date: 2022-09-15
File No. 2019-22
Adjudicator: |
Timothy Moseley |
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Hearing: |
By teleconference, October 1, 2020 |
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Appearances: |
Mark Bailey |
For Staff of the Ontario Securities Commission |
Charlie Pettypiece |
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Anil Saxena |
For Global Bioenergy Resources Inc. |
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Robert Stellick |
For Maurice Aziz |
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Nayeem Alli |
For himself |
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Harish Bajaj |
For himself |
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Andre Itwaru |
For himself |
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No one appearing for First Global Data Ltd. |
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[1] On the eve of the merits hearing in this enforcement proceeding, the respondent Nayeem Alli asked that it be adjourned for thirty days. His primary reason for the request was that his counsel would no longer be representing him.
[2] At a hearing the following day, I denied Alli's request, for reasons to follow. These are my reasons for that decision.
[3] Merits hearings are to proceed as scheduled unless exceptional circumstances require an adjournment. I was not satisfied that Alli's circumstances met that test.
[4] This is a complex proceeding involving serious and wide-ranging allegations against multiple respondents with divergent interests. It was commenced on May 31, 2019, almost a year and a half before the merits hearing was scheduled to begin on October 5, 2020. There were numerous preliminary attendances during that time. The parties expected that the merits hearing would require approximately 40 hearing days, with testimony from approximately 25 witnesses.
[5] On September 24, 2020, Alli served and filed notice that he intended to act on his own behalf in this proceeding. On September 30, 2020, less than three business days before the merits hearing was to begin, Alli wrote to the registrar to request an adjournment. A teleconference hearing was convened for the following day to consider his request.
[6] Rule 29(1) of the Rules of Procedure and Forms provides that every merits hearing in an enforcement proceeding shall proceed on the scheduled date unless the party requesting an adjournment "satisfies the Panel that there are exceptional circumstances requiring an adjournment".
[7] That standard is a difficult one to meet. It reflects the important objective, set out in Rule 1, that Tribunal proceedings be "conducted in a just, expeditious and cost-effective manner".
[8] That objective must, however, be balanced against the parties' ability to participate meaningfully in hearings and to present their case. A determination about whether to grant an adjournment is necessarily dependent on the particular circumstances of the case.{1}
[9] Alli requested the adjournment because:
a. he was not equipped to represent himself and he therefore needed counsel;
b. he was close to retaining new counsel, but they would need time to prepare;
c. he could not attend a lengthy hearing himself because he had to work to pay for counsel; and
d. he and his wife were recovering from medical events that had occurred approximately one year earlier, and six months earlier, respectively.
[10] Alli made other assertions in support of his request, but they were not relevant to the issue before me.
[11] Staff opposed Alli's request. The other respondents either supported Alli's request or took no position.
[12] I have some sympathy for the position in which Alli found himself. Responding to serious allegations in a complex matter with many witnesses over many hearing days is challenging, even with counsel. Doing so on one's own behalf is even more challenging.
[13] However, respondents in Tribunal proceedings often represent themselves. While a respondent may feel that they cannot participate as effectively as they could with counsel, there are many protections in place to ensure that they get a fair hearing. There is no absolute right to counsel.
[14] Alli did not explain why his counsel was no longer representing him or why the change came when it did.
[15] Parties are of course free to choose whether to be represented, and if so, by whom. Generally, parties need not explain their choice about how they are represented. However, when a party seeks an adjournment based solely on that choice, the party bears the burden of demonstrating the exceptional circumstances that warrant an adjournment. Without an explanation, I cannot accept Alli's loss of counsel as meeting that burden.
[16] As for Alli's assertion that he and his wife were recovering from medical events, he provided no evidence in support. Even if he had, however, I would not have found his assertion persuasive as framed.
[17] An adjournment of the merits hearing would have been a significant disruption. Parties, counsel, panel members and witnesses had all been scheduled for many hearing days in October. The merits hearing dates had been set seven months earlier. Rescheduling the hearing on the eve of its scheduled commencement would inevitably have resulted in a delay of months for the conclusion of the hearing, especially given the many participants.
[18] The requested adjournment would also have caused the Commission and the parties to incur additional costs.
[19] That result would have been directly contrary to the objective set out in Rule 1 of expeditious and cost-effective proceedings.
[20] For these reasons, I denied Alli's request to adjourn the merits hearing.
Dated at Toronto this 15th day of September, 2022
{1} Money Gate Mortgage Investment Corporation (Re), 2019 ONSEC 40 at para 54, citing Pro-Financial Asset Management Inc (Re), 2018 ONSEC 18 at para 28 and Cheng (Re), 2018 ONSEC 13 at paras 5-6
Citation: First Global Data Ltd (Re), 2022 ONCMT 24
Date: 2022-09-15
File No. 2019-22
Adjudicators: |
Timothy Moseley (chair of the panel) |
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Lawrence P. Haber |
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Mary Anne De Monte-Whelan |
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Hearing: |
In writing; last submissions received November 30, 2021 |
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Appearances: |
Mark Bailey |
For Staff of the Ontario Securities Commission |
Charlie Pettypiece |
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Vincent Amartey |
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Nayeem Alli |
For himself |
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[1] After the evidentiary portion of the merits hearing in this proceeding was concluded, and after the parties had delivered their written closing submissions, but while our decision on the merits was under reserve, the respondent Nayeem Alli moved for a stay of the proceeding against him on the basis of alleged misconduct by counsel for Staff of the Ontario Securities Commission.
[2] The conduct that Alli complains of occurred in the period before Staff filed a Statement of Allegations to begin this proceeding. Alli claims that counsel for Staff at the time (outside counsel who withdrew from the file early in the proceeding) was in a conflict of interest. Alli asserts that this fact motivated Staff counsel to concoct a contemplated fraud allegation against him, and to include that contemplated allegation in an Enforcement Notice delivered to him well before the proceeding was commenced, but to exclude that allegation from the Statement of Allegations, all in an effort to bully Alli into a settlement.
[3] No settlement was ever concluded.
[4] Staff brought a motion seeking dismissal of Alli's motion on a preliminary basis. We heard that motion in writing and issued an order granting Staff's motion and dismissing Alli's motion.{1} We dismissed Alli's request for a stay because:
a. of his significant delay in bringing the motion;
b. the motion sought to address irrelevant issues; and
c. Alli failed to meet the high bar for the grant of a stay of proceeding, in that he failed to establish any of Staff's actions at the time complained of constituted misconduct.
[5] Alli also sought a declaration, which he later conceded we have no authority to make. Finally, he sought an order requiring the Commission to report its Staff to the appropriate regulatory body. Again, we have no authority to issue such an order, and in any event, we find that there is no basis on which any member of Staff should be reported to any regulatory body.
[6] Staff has requested an order striking certain portions of written submissions filed by Alli following the evidentiary portion of the merits hearing, as well as certain portions of an affidavit sworn by Alli and filed on this motion. We agree with Staff's submissions that the impugned portions of both documents improperly seek to introduce material that is irrelevant and/or privileged. We therefore included a provision in our order striking those portions.
[7] In our order, we indicated that reasons for our decision would follow. These are our reasons, which are being released simultaneously with our reasons and decision resulting from the merits hearing.{2}
[8] In January 2021, during Alli's direct oral testimony in the hearing on the merits of Staff's allegations in this proceeding, Alli sought to testify about what he claimed was a conflict of interest involving Melissa MacKewn. Around the time that the Statement of Allegations was issued (May 2019), MacKewn was outside counsel acting for Staff in this matter.
[9] Alli's concern was that MacKewn and her firm were also representing a group of First Global debenture holders at the same time as she was acting for Staff, until she recused herself from this file later in 2019. Her firm commenced an action in the Superior Court of Justice in December 2018 on behalf of that group of debenture holders. In that proceeding, the debenture holders alleged fraud against Alli. Alli believes that he has been unfairly treated as a result of MacKewn's involvement in both proceedings, for reasons we will explain further below.
[10] When Alli began to testify about this topic, Staff objected. We upheld Staff's objection for four reasons:
a. in his summary of anticipated evidence, delivered to the other parties before the merits hearing as required, Alli did not raise this issue;
b. given the nature of Alli's concern, he ought to have raised it reasonably promptly after the concern arose, and not in the middle of the merits hearing more than a year and a half later;
c. given that Alli expressly alleged that MacKewn engaged in professional misconduct, he ought to have raised the concern in a way that afforded MacKewn an opportunity to respond if she chose to do so; and
d. Alli's concern, even if well-founded, was irrelevant to the issues before us at the time.
[11] The hearing on the merits continued without any testimony from Alli on the topic.
[12] On June 29, 2021, at the conclusion of the evidentiary portion of the hearing on the merits, Alli filed his written closing submissions (the Alli Closing Submissions). In those submissions, Alli addressed the issue mentioned above. On July 29, 2021, Staff wrote to the Registrar (with a copy to all parties) seeking our assistance. Staff advised that it had asked Alli to file revised submissions that excluded mention of the issue, but Alli had declined to do so.
[13] We responded to the parties by asking that Staff file a redacted version of Alli's submissions that would, in Staff's view, resolve the issue. Following that, Alli would have an opportunity to make submissions about whether that version should replace the one he originally filed.
[14] Staff filed a redacted version, but Alli did not respond with any submissions. Instead, on August 9, 2021, he brought a motion to stay this proceeding and for certain declaratory relief. In his motion, he elaborated on his concern. He alleged that MacKewn "weaponised" this proceeding against him by "concocting a fraud allegation... to bully... Alli into a settlement". Alli alleged that Staff intentionally inflicted mental suffering on him without regard for his serious medical conditions.
[15] As Alli notes, the Statement of Allegations in this proceeding contains no allegation of fraud against him. However, he implies, although does not state, that there is a connection between MacKewn's retainer on behalf of the debenture holders and the removal of a fraud allegation against him in this proceeding. We note that the Statement of Allegations in this proceeding has never been amended. Alli's reference to removal of an allegation refers to an Enforcement Notice that Staff provided to him in August 2018, months before this proceeding was commenced.
[16] In correspondence after Alli filed his motion, Staff raised a number of concerns about the motion and its contents. At an attendance before a single-member panel on August 18, 2021, the Tribunal heard submissions from the parties. After hearing Staff's position, Alli advised that he wished to review the transcript of the attendance and that he would then decide how to proceed.
[17] Alli took no formal steps to advance his motion. On October 25, 2021, Staff brought a motion seeking to dismiss Alli's motion. On consent of Staff and Alli, we ordered that Staff's motion be heard in writing.{3}
[18] Staff delivered a motion record that contained a motion form and the affidavit of Sherry Brown sworn October 21, 2021.{4} Alli responded on November 8, 2021, with his own affidavit sworn November 7, 2021 (the Alli Affidavit).{5}
[19] On November 18, 2021, Staff delivered written submissions. In those submissions, Staff supplemented its dismissal request by asking that we strike certain portions of the Alli Affidavit. The impugned portions related to the same topic mentioned above.
[20] Alli delivered responding submissions on November 30, 2021.
[21] On December 16, 2021, we issued our order granting Staff's motion and dismissing Alli's motion.
3.1 Introduction
[22] Staff's motion to dismiss, as supplemented by the request Staff made in its written submissions, raises three main issues, which we will address in turn:
a. whether we should dismiss Alli's request for a stay;
b. whether we should dismiss Alli's request for declaratory relief; and
c. whether we should strike portions of the Alli Affidavit and the Alli Closing Submissions.
3.2 Alli's request for a stay
3.2.1 Introduction
[23] Staff contended that we ought to dismiss Alli's request for a stay because:
a. without satisfactory explanation, Alli is significantly late in bringing the motion, and failed to proceed with it once it had been brought;
b. the issues raised by the motion are irrelevant to the proceeding, and the motion is therefore frivolous or abusive; and
c. a stay of a proceeding is an extreme remedy that is reserved for only the most egregious of cases, and a stay is not warranted in this case.
[24] Our authority to dismiss Alli's motion derives from the Tribunal's authority to control its own process.{6} In reaching our decision, we were guided by the imperative that we conduct proceedings in a just, expeditious and cost-effective manner.{7}
3.2.2 Delay in bringing the motion and in proceeding with it
[25] Staff correctly submits that Alli is significantly late in moving for a stay. Alli alleges an improper process between the August 2018 delivery by Staff of an Enforcement Notice (containing Staff's preliminary views and setting out contemplated allegations were a proceeding to be commenced) and the May 2019 issuance of the Statement of Allegations (the document that Staff files with the Tribunal to commence a proceeding). Alli does not rely on any events that occurred after the Statement of Allegations was issued. Accordingly, Alli knew by May 2019 of all the facts on which he now bases his motion for a stay.
[26] Alli does not satisfactorily explain why he waited until January 2021, more than a year and a half later, and after Staff had already completed its evidentiary portion of the merits hearing, to raise this issue with the Tribunal, i.e., by way of his testimony during the merits hearing.
[27] Similarly, Alli does not satisfactorily explain why he waited until August 9, 2021, more than two years after the issuance of the Statement of Allegations, to bring this motion. This further delay is especially noteworthy given the panel chair's admonition on January 12, 2021, during the merits hearing, that if Alli intended to make conflict of interest allegations against MacKewn or her firm, he should alert them as soon as possible. To our knowledge, Alli never did so.
[28] Finally, Alli does not satisfactorily explain why he did not take the necessary steps to proceed with his motion once filed. At the attendance on August 18, 2021, Alli heard Staff describe its concerns about his motion. He advised that he wished to review a transcript of the attendance and that he would respond in writing to the issues raised. Staff attempted to contact Alli numerous times over the weeks that followed, but Alli either did not respond or advised that he needed more time.
[29] Alli does offer explanations, but we do not find them persuasive. In his submissions on this motion, Alli cites two factors: (i) that he is self-represented; and (ii) that he has been experiencing critical medical conditions.
[30] As to the first factor, Alli is self-represented now, but he was represented by counsel for the entire period between the delivery of the Enforcement Notice and the issuance of the Statement of Allegations. He was also represented by counsel for most of this proceeding, including at preliminary attendances and motion hearings between the issuance of the Statement of Allegations and the commencement of the merits hearing. He had ample opportunity to move for a stay or seek other relief well before the merits hearing began. The fact that he is self-represented now is irrelevant.
[31] As to the second factor, we have no proper basis to assess Alli's claim of critical medical conditions. We can note only that Alli fully participated in the lengthy merits hearing. We cannot conclude that his medical conditions, however serious they may have been, precluded him (or his counsel on his behalf) from bringing this motion at any time between May 2019 and the beginning of the merits hearing.
[32] In addition, Alli states, without evidence in support, that it was his counsel's oversight in not bringing the motion earlier. We cannot accept this unsubstantiated submission.
[33] By failing to bring the motion until after the evidentiary portion of the merits hearing had concluded, and after the parties had delivered their closing submissions, Alli denied the parties and the Tribunal the opportunity to determine at an early stage whether to exclude evidence related directly to him and thereby to shorten the hearing and expend fewer resources. He also denied the Tribunal the opportunity to consider whether alternative remedies might have adequately addressed his concern, if we concluded that his concern was well-founded.
[34] In addition, Alli's delay is at odds with the purpose a stay is meant to achieve. A stay is not meant to right a past wrong. Instead, underlying the grant of a stay is the "critically important" assumption that the prejudice caused to the party will be manifested, perpetuated or aggravated by continuing with the proceeding.{8}
[35] The timing of Alli's motion fundamentally undermines any argument that proceeding with the merits hearing would manifest, perpetuate or aggravate any prejudice to him. This conclusion holds despite the facts that:
a. our decision and reasons on the merits hearing had not been released at the time of Alli's motion; and
b. the sanctions and costs hearing has yet to occur, especially given that the evidentiary portion of the merits hearing took place over more than thirty hearing days, and any sanctions and costs hearing is likely to take far less time.
[36] For these reasons, a motion seeking a stay of a proceeding must be brought promptly after the facts giving rise to the concern come to light, absent reasonable explanation for the delay. There was no sufficient explanation in this case. Accordingly, we would dismiss Alli's motion on this basis alone. For completeness, however, we proceed to consider our other two grounds for dismissing the motion.
3.2.3 Irrelevance of Alli's allegations
[37] Alli's concerns relate to actions of the Commission's enforcement staff in the last stage of its investigation, and before Staff made a final decision about which allegations would be included in the Statement of Allegations.
[38] The Supreme Court of Canada has held that prosecutorial discretion "is especially ill-suited to judicial review" and that courts should intervene only where there is conspicuous evidence of improper motives or of bad faith.{9} Similarly, this Tribunal has held that Staff's decision-making about the contents of a Statement of Allegations "should not lightly be subjected to review" on a motion for a stay.{10}
[39] These are important considerations on this motion. Alli seeks to introduce extensive evidence about matters that are outside the scope of the Statement of Allegations. Considering that evidence would require the resolution of issues of privilege, relating both to solicitor-client communications and to without prejudice discussions involving respondents and Staff that came before the commencement of the proceeding.
[40] Permitting Alli to introduce that evidence and raise those issues would subject the Tribunal and all parties to significant expenditure of time and resources, particularly because on Alli's own description, some of the relevant discussions involved all other respondents.
[41] Because the substance of Alli's concern relates to matters that are irrelevant in the proceeding before us, we conclude that his motion is frivolous. It is therefore appropriate for us to dismiss his motion at this preliminary stage. We concluded that we should accede to Staff's request that we do so.
3.2.4 Alli's failure to meet the necessary standard for a stay of the proceeding
[42] Our third reason for dismissing Alli's request for a stay is that he failed to meet the necessary standard.
[43] A party who seeks the drastic remedy of a stay of a proceeding faces a high bar. The party must establish that the proceeding is oppressive or vexatious, and that it violates the fundamental principles of justice underlying the community's sense of fair play and decency.{11} The evidence of improper behaviour must be overwhelming and must demonstrate clearly that the proceeding is unfair and contrary to the administration of justice. A stay should be granted only in the clearest of cases.{12}
[44] Not only does Alli's complaint not meet this standard, it does not approach it. By Alli's own description, Staff at one time contemplated the possibility of a fraud allegation against him, but ultimately when Staff filed its Statement of Allegations, Staff elected not to include such an allegation. If anything, Alli benefited from the Enforcement Notice process and the opportunity for discussions and negotiation prior to the commencement of the proceeding. That process is a healthy part of Staff's enforcement work, and it contributes to both real and reasonably perceived justice for intended respondents.{13}
[45] Alli contends that Staff concocted the fraud allegation to bully him into a settlement. We do not understand that submission. There was no settlement. Alli has not pointed to any relevant step taken or decision made that was caused or influenced by the matters that are the subject of his concern. Further, it is an important part of the process that Staff would reconsider all contemplated allegations before making those allegations formal and public.
[46] Alli has failed to explain how this development worked against him or how Staff's conduct rendered the proceeding unfair and contrary to the administration of justice.
3.2.5 Conclusion on Alli's request for a stay
[47] For each of the three reasons cited above, Alli fails to establish that he is entitled to a stay. Indeed, we conclude that it would undermine public confidence in the Tribunal's process if we were to grant the stay. We therefore dismissed his request.
3.3 Alli's request for declaratory relief
[48] In addition to seeking a stay, Alli initially asked that we issue declarations that:
a. the Commission breached its obligations to Alli by allowing Staff to conduct itself in the manner that it did, thereby contributing to severe medical harm to him; and
b. the Commission self-report the misconduct of its Staff to Staff's professional regulators.
[49] In his written submissions, Alli correctly concedes that the Tribunal has no authority to issue a declaration.{14} In any event, we have rejected the underlying premise of Alli's request, since we have found that none of the actions complained of constituted misconduct on the part of Staff.
[50] The second request seeks not a declaration, but an order from the Tribunal that the Commission make a report to some other body. Once again, we have already rejected the underlying premise of this request. Further, the Tribunal is a statutory body with no inherent jurisdiction. It can order only what it is empowered to order. Nothing empowers the Tribunal to make the kind of order that Alli requests.
[51] We therefore dismissed the balance of Alli's motion.
3.4 Staff's request that portions of Alli's material be struck
[52] Our order provided that the following portions of the Alli Affidavit be struck: paragraphs 2, 6, 8, 14, 15, 16, 17(2), 17(4), 17(5), 17(6), 17(7), 19, 20 and 22, and exhibits C, E, F, G, H, I and J. Our order also provided that paragraphs (a), (b) and (c) and footnote 1 on page 4 of Alli's Closing Submissions be struck.
[53] Staff requested that those portions be struck because they improperly disclosed information that is privileged and that is irrelevant to the motions and to the proceeding generally. Staff submitted that the impugned portions improperly attempted to introduce evidence and arguments on the same topic as described above.
[54] We agree. The impugned portions contained details of settlement discussions and communications, and copies of documents relating to those discussions. Any such evidence is presumptively inadmissible before the Tribunal,{15} and for reasons set out above (i.e., Alli's failure to demonstrate an abuse of process), no exception to that presumption applies. Accordingly, the impugned portions must be struck from any documents filed.
[55] We therefore granted Staff's request to strike the portions specified above. As noted above in paragraph [14], Staff had already filed a redacted version of the Alli Closing Submissions that reflected Staff's concerns. In accordance with our order of December 16, 2021, Staff filed a revised version of the Alli Affidavit that redacted the portions set out above. Only the redacted versions of the two documents shall be available to the public.
[56] On December 16, 2021, we ordered that Alli's motion for a stay of this proceeding, and for declaratory relief, be dismissed. We issued that order because:
a. Alli delayed significantly the bringing of his motion and then failed to proceed with it expeditiously, all without reasonable explanation;
b. Alli's motion purported to address issues irrelevant to this proceeding;
c. Alli failed to meet the high bar necessary to justify a stay of this proceeding;
d. we have no authority to make the declaration sought or to require the Commission to take the steps requested, and in any event, we found no misconduct on the part of Staff that would justify such orders; and
e. the impugned portions of Alli's Affidavit and Alli's Closing Submissions improperly attempted to raise the issues described above.
Dated at Toronto this 15th day of September, 2022
{1} (2021) 44 OSCB 10375
{2} First Global Data Ltd (Re), 2022 ONCMT 25
{3} (2021) 44 OSCB 8971
{4} We have marked Staff's motion record as Exhibit 1 in this hearing
{5} We have marked the Alli Affidavit as Exhibit 2 in this hearing
{6} Statutory Powers Procedure Act, RSO 1990, c S.22 (SPPA), s 25.0.1; Prassad v Canada (Minister of Employment & Immigration), 1989 CanLII 131 (SCC) at para 46
{7} Rules of Procedure and Forms, r 1
{8} R v Regan, 2002 SCC 12 at para 54
{9} R v Power, 1994 CanLII 126 (SCC) at paras 12, 34
{10} Azeff (Re), 2012 ONSEC 16 (Azeff) at para 211
{11} R v Scott, 1990 CanLII 27 (SCC) at paras 69-70
{12} Glendale Securities Inc (Re), (1996) 19 OSCB 3874 at 8; R v Sandhu, 2020 ONCA 479 at para 74
{13} Azeff at paras 259-260
{14} B (Re), 2020 ONSEC 21 at para 17
{15} Sable Offshore Energy Inc v Ameron International Corp, 2013 SCC 37 at paras 12-13; SPPA, s 15(2)(a)
First Global Data Ltd. et al. -- s. 127(1)
Reasons and Decision on the Merits in the matter of First Global Data Ltd. et al. is reproduced on the following internally numbered pages. Bulletin pagination resumes at the end of the Decision.
Durham Asset Management Inc. and Dami Corporate Bond Fund
Securities Act (Ontario) section 147 -- Relief granted to extend the time limit pertaining to the distribution of securities of an investment fund under its simplified prospectus by 137 days -- Due to an administrative error, the fund failed to file a pro forma prospectus in accordance with the timelines stipulated for a renewal of a prospectus under the legislation, as a result of which the prospectus lapsed -- Relief granted subject to a 90-day cancellation right being given to investors who purchased securities of the fund after the lapse date -- Securities Act (Ontario).
Securities Act, R.S.O. 1990, c. S.5 as am., s. 147.
The Ontario Securities Commission (the Commission) has received an application from Durham Asset Management Inc. (the Filer), as investment fund manager of DAMI Corporate Bond Fund, (the Fund) for an order pursuant to section 147 of the Act that the time limit pertaining to the distribution of securities of the Fund under its simplified prospectus, fund facts and annual information form dated June 15, 2021 be extended to October 29, 2022 (the Exemption Sought).
This order is based on the following facts represented by the Filer.
A. The Filer
1. The Filer is a corporation under the laws of Ontario with its head office in Ajax, Ontario.
2. The Filer is registered as an investment fund manager, portfolio manager, exempt market dealer and commodity trading manager in Ontario.
3. The Filer is the manager, trustee and portfolio manager of the Fund.
4. Neither the Filer nor the Fund is in default of securities legislation in any jurisdiction, except as stated herein with respect to the lapse date of the Fund.
B. The Fund
5. The Fund is an open-ended mutual fund trust established under the laws of Ontario and is a reporting issuer as defined in the securities legislation of Ontario.
6. Securities of the Fund are currently distributed in Ontario pursuant to a simplified prospectus, fund facts and annual information form, each dated June 15, 2021 (together, the Current Prospectus).
7. The Fund is not listed on any stock exchange.
8. The Fund is authorized to issue an unlimited number of Series A, Series F, and Series I Trust Units, of which, as of the date of this decision 742.20 Series A Units, 43,263.52 Series F Units, and 0.0 Series I Units are issued and outstanding.
C. Exemption Sought
9. Due to an administrative error, the Fund failed to file a pro forma prospectus in accordance with the timelines stipulated for a renewal of a prospectus under the Act.
10. As a result, the Current Prospectus of the Fund lapsed on June 15, 2022 (the Lapse Date) and the Fund was required to cease the distribution of securities on the Lapse Date.
11. New investors in the Fund received delivery of the most recently filed fund facts of the Fund. The Current Prospectus of the Fund is available upon request.
12. There have been no material changes in the affairs of the Fund since the date of the Current Prospectus. Accordingly, the Current Prospectus represents the current information of the Fund.
13. The Fund suspended all sales of units effective August 25, 2022.
14. During the period between the Lapse Date and the date that sales were suspended (the Interim Period) the Fund sold 17,208.2 units having an aggregate value of $157,000.00.
15. The Filer intends to file a renewal prospectus for the Fund (the Renewal Prospectus) and obtain a final receipt therefore on or before October 29, 2022.
16. Granting the Exemption Sought would not affect the accuracy or currency of the information contained in the Current Prospectus nor would it be prejudicial to the public interest or the existing securityholders as there has been no material change in the affairs of the Fund since the date of the Current Prospectus.
17. Given the disclosure obligations of the Fund, should a material change in the affairs of the Fund occur, such change will be disclosed in an amendment to the Current Prospectus.
18. All purchasers of units prior to the receipting of the Renewal Prospectus will receive delivery of the most recently filed fund facts document(s) of the Fund and the Current Prospectus will still be available upon request.
19. If the Exemption Sought is not granted, it would be necessary to prepare and file a preliminary prospectus in respect of the Fund in order to re-qualify the distribution of the Fund's securities. It would be impractical to file a preliminary prospectus for the Fund and more efficient to grant the Exemption Sought in order to enable the Fund to continue the distribution of its securities under the Current Prospectus, subject to the terms of this order, until such a time as a final receipt is issued for the Renewal Prospectus.
The Director is satisfied that this order meets the test set out in the Act for the Commission to make the order.
The order of the Director under section 147 of the Act is that the Exemption Sought is granted to the Fund provided that:
1. Every security holder of record of the Fund who purchased securities of the Fund during the Interim Period (each, an Affected Securityholder) is provided with the right:
(a) to cancel (Cancellation Right) such trades within 90 days of the receipt of a statement (the Statement of Rights) describing the Cancellation Right, which is to be mailed by the Filer to the Affected Securityholder; and
(b) to receive, upon the exercise of a Cancellation Right, the purchase price paid on the acquisition of such securities and all fees and expenses incurred in effecting such purchase.
2. The Filer mails a copy of the Statement of Rights and a copy of this order to each Affected Securityholder no later than 10 days after the date of this decision; and
3. If the net asset value per security of the Fund on the date that an Affected Securityholder exercises the Cancellation Right is less than the price per security paid by the Affected Securityholder at the time of purchase, the Filer shall reimburse the difference to the Fund.
Dated this 13th day of September, 2022.
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- The issuer ceased to be a reporting issuer under securities legislation.
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
September 16, 2022
The principal regulator in the Jurisdiction has received an application from the Filer for an order under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Order Sought).
Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filer has provided notice that subsection 4C.5(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the provinces and territories of Canada (other than Ontario).
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
This order is based on the following facts represented by the Filer:
1. the Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets;
2. the outstanding securities of the Filer, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide;
3. no securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in National Instrument 21-101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported;
4. the Filer is applying for an order that the Filer has ceased to be a reporting issuer in all of the jurisdictions of Canada in which it is a reporting issuer; and
5. the Filer is not in default of securities legislation in any jurisdiction.
The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.
The decision of the principal regulator under the Legislation is that the Order Sought is granted.
Black Swan Graphene Inc. -- s. 1(11)b)
Subsection 1(11)(b) -- Order that the issuer is a reporting issuer for the purposes of Ontario securities law -- Issuer is already a reporting issuer in British Columbia and Alberta -- Issuer's securities listed for trading on the TSX Venture Exchange as a capital pool company -- Continuous disclosure requirements in British Columbia and Alberta are substantially the same as those in Ontario -- Issuer has a significant connection to Ontario.
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(11)(b).
UPON the application of the Filer to the Ontario Securities Commission (the "Commission") for an order pursuant to paragraph 1(11)(b) of the Act that, for the purposes of Ontario securities law, the Filer is a reporting issuer in Ontario;
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON the Filer having represented to the Commission as follows:
1. The Filer is a company incorporated under the Business Corporations Act (British Columbia), with its head office located at 1410 -- 120 Adelaide Street West, Toronto, ON, M5H 1T1.
2. The authorized share capital of the Filer consists of an unlimited number of common shares (the "Common Shares"), of which 283,938,008 Common Shares are issued and outstanding as of August 4, 2022.
3. The Filer is a reporting issuer in British Columbia and Alberta and is not a reporting issuer in any other jurisdiction. The Filer became a reporting issuer in British Columbia on July 14, 2010 and in Alberta on July 16, 2010. The Filer's principal regulator is the British Columbia Securities Commission.
4. The continuous disclosure documents filed by the Filer under the Securities Act (British Columbia) (the "BC Act") and the Securities Act (Alberta) (the "AB Act") are available on the System for Electronic Document Analysis and Retrieval ("SEDAR"). The Filer's first electronic filing on SEDAR occurred on June 14, 2010.
5. The Filer is not on the lists of defaulting reporting issuers maintained pursuant to the BC Act or the AB Act , and is not in default of any requirement of either the BC Act or the AB Act or the rules and regulations made thereunder.
6. The continuous disclosure requirements of the BC Act and the AB Act are substantially the same as the continuous disclosure requirements under the Act.
7. On August 2, 2022 the Filer competed its "Qualifying Transaction" (as that term is defined in TSX Venture Exchange Policy 2.4 -- Capital Pool Companies) whereby the Filer, among other things: (i) acquired all of the issued and outstanding shares in the capital of Black Swan Graphene Inc. and Black Swan Graphene Inc. became a wholly-owned subsidiary of the Filer; (ii) changed its name from "Dragonfly Capital Corp." to "Black Swan Graphene Inc."; and (iii) its common shares will commence trading on the TSXV as a Tier 2 Industrial Issuer under the trading symbol "SWAN" (on August 9, 2022). No other securities of the Filer are listed, traded or quoted on any stock exchange or trading or quotation system.
8. The Filer is not in default of any of the rules, regulations or policies of the TSXV.
9. The Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets.
10. Prior to the Qualifying Transaction, the Filer had selected the British Columbia Securities Commission as its principal regulator due to the fact that at that time its head office was located in the Province of British Columbia.
11. Pursuant to section 18 of Policy 3.1 of the TSX Venture Exchange Corporate Finance Manual (the TSXV Manual), a listed-issuer, which is not otherwise a reporting issuer in Ontario, must assess whether it has a "Significant Connection to Ontario" (as defined in Policy 1.1 of the TSXV Manual) and, upon becoming aware that it has a significant connection to Ontario, promptly make a bona fide application to the Commission to be designated a reporting issuer in Ontario.
12. The Filer has determined it has a significant connection to Ontario in accordance with the policies of the TSXV. Specifically, (i) the Filer's head office is located in Toronto, Ontario and (ii) its President and Chief Executive Officer, its Chief Financial Officer and Corporate Secretary, and its VP Corporate Development are all residents of Ontario. Accordingly, the Commission is the appropriate body to serve as the Filer's principal regulator, pursuant to section 3.4(4) of National Instrument 11-202 Process for Prospectus Reviews in Multiple Jurisdictions.
13. The Commission will be the principal regulator of the Filer once the Filer has obtained reporting issuer status in Ontario. Upon granting of this Order, the Filer will amend its SEDAR profile to indicate that the Commission is its principal regulator.
14. None of the Filer, any of its officers or directors, or any shareholder holding sufficient securities of the Filer to affect materially the control of the Filer has:
(a) been subject to any penalties or sanctions imposed by a court relating to Canadian securities legislation or by a Canadian securities regulatory authority;
(b) entered into a settlement agreement with a Canadian securities regulatory authority; or
(c) been subject to any other penalties or sanctions imposed by a court or regulatory body that would be likely to be considered important to a reasonable investor making an investment decision.
15. None of the Filer, any of its officers or directors, or any shareholder holding sufficient securities of the Filer to affect materially the control of the Filer, is or has been subject to:
(a) any known ongoing or concluded investigations by a Canadian securities regulatory authority, or a court or regulatory body, other than a Canadian securities regulatory authority, that would be likely to be considered important to a reasonable investor making an investment decision; or
(b) any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or appointment of a receiver, receiver manager or trustee, within the preceding 10 years.
16. None of the Filer's officers or directors, or any shareholder holding sufficient securities to materially affect the control of the Filer, is or has been at the time of such event, an officer or director of any other issuer which is or has been subject to:
(a) any cease trade order or similar order, or order that denied access to any exemptions under Ontario securities law, for a period more than 30 consecutive days, within the preceding 10 years; or
(b) any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or appointment of a receiver, receiver-manager or trustee, within the preceding 10 years.
AND UPON the Commission being satisfied that granting this Order would not be prejudicial to the public interest;
IT IS HEREBY ORDERED pursuant to paragraph 1(11)(b) of the Act that the Filer is a reporting issuer for the purposes of Ontario securities law.
DATED at Toronto, Ontario on this 16th day of September, 2022.
Section 144 of the Securities Act (Ontario) -- application for partial revocation of a cease trade order -- concurrent application filed in British Columbia -- issuer cease traded due to failure to file certain continuous disclosure documents required by Ontario securities law -- issuer has applied for partial revocation of the cease trade order to permit the issuer to proceed with a private placement -- issuer will use proceeds from private placement to accredited investors to prepare and file continuous disclosure documents and pay related fees -- partial revocation granted subject to conditions.
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 127 and 144.
National Policy 12-202 Revocation of Certain Cease Trade Orders.
WHEREAS the securities of 0755461 B.C. Ltd. (formerly, Pro Minerals Inc.) (the Applicant) are subject to a cease trade order issued by the Director dated September 24, 2012, pursuant to paragraph 2 of subsection 127(1) and subsection 127(4.1) of the Act (the ON Cease Trade Order), directing that all trading in the securities of the Applicant cease until the ON Cease Trade Order is revoked by the Director;
AND WHEREAS the Applicant has applied to the Ontario Securities Commission (the Commission) for a partial revocation of the ON Cease Trade Order pursuant to section 144 of the Act ;
AND UPON the Applicant having represented to the Commission that:
1. The Applicant was incorporated in the province of British Columbia under the Business Corporations Act (British Columbia) on April 21, 2006 and was dissolved on October 5, 2015. On April 19, 2022, the Applicant was restored under the Business Corporations Act (British Columbia) as 0755461 B.C. Ltd.
2. The Applicant's head office is located at 833 Seymour Street, Suite 3606, Vancouver, British Columbia, V6B 0G4.
3. The Applicant is a reporting issuer under the securities legislation of the provinces of Ontario, British Columbia, Quebec, and Alberta. The Applicant is not a reporting issuer in any other jurisdiction in Canada.
4. The Applicant's authorized share capital consists of an unlimited number of common shares (Common Shares). The Applicant has 73,643,467 Common Shares issued and outstanding. Other than the issued and outstanding Common Shares, the Applicant has no securities outstanding.
5. The Applicant's securities are not listed on any stock exchange or quotation system.
6. The ON Cease Trade Order was issued as a result of the Applicant's failure to file the following continuous disclosure materials as required by Ontario securities law:
(a) audited annual financial statements for the year ended April 30, 2012;
(b) management's discussion and analysis (MD&A) relating to the audited annual financial statements for the year ended April 30, 2012;
(c) certificates required to be filed in respect of the financial statements referred to in subparagraph (a) above as required by National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings (NI 52-109);
(collectively, the Unfiled Documents).
7. The Unfiled Documents were not filed in a timely manner as a result of financial difficulties.
8. Subsequent to the failure to file the Unfiled Documents, the Applicant also failed to file the following documents:
(a) annual audited financial statements for the years ended April 30, 2013, to April 30, 2022;
(b) interim unaudited financial reports for the interim periods ended July 31, 2012 to January 31, 2022;
(c) MD&A relating to the annual audited financial statements and interim unaudited financial reports referred to in subparagraphs (a) and (b) above; and
(d) certificates required to be filed in respect of the financial statements referred to in subparagraphs (a) and (b) above under NI 52-109
(together with the Unfiled Documents, the Unfiled Continuous Disclosure).
9. The Applicant's securities are also subject to:
(a) a cease trade order dated December 6, 2012 issued by the Alberta Securities Commission, pursuant to subsection 33.1 of the Securities Act (Alberta), directing that all trading in the securities of the Applicant cease until the order is revoked or varied (the AB Cease Trade Order);
(b) a cease trade order dated September 10, 2013 issued by the British Columbia Securities Commission (the BCSC), pursuant to subsection 164 of the Securities Act (British Columbia), directing that all trading in the securities of the Applicant cease until the order is revoked or varied (the BC Cease Trade Order); and
(c) a cease trade order dated September 25, 2012 issued by the Autorité des marchés financiers pursuant to sections 265, 267 and 318 of the Securities Act, R.S.Q., c. V-1.1 directing that all trading in the securities of the Applicant cease until the order is revoked or varied (together with the BC Cease Trade Order, AB Cease Trade Order, and ON Cease Trade Order, the Cease Trade Orders).
10. The Applicant is seeking a partial revocation of the ON Cease Trade Order to permit the Applicant to complete a private placement (the Private Placement) of an amount up to $100,000 by way of: (i) the issuance of up to 74,850,299 Common Shares at a price of $0.000668 per Common Share; and (ii) an offering of unsecured convertible debentures (the Unsecured Debentures) in the principal amount of up to $50,000 convertible into Common Shares at a conversion price of $0.000668 per Common Share, with each Unsecured Debenture to be issued in the principal amount of $1,000, bearing interest at an annual rate of 10% payable in arrears in equal installments semi-annually, and maturing on the date is 24 months from the date of issuance. The Convertible Debentures may only be converted after the full revocation of the Cease Trade Orders.
11. Each distribution made in respect of the Private Placement will comply with the accredited investor prospectus exemption contained in section 73.3 of the Act and section 2.3 of National Instrument 45-106 Prospectus Exemptions.
12. The Private Placement is intended to take place in Ontario and British Columbia.
13. The Applicant has also filed an application with the BCSC for a partial revocation of the BC Cease Trade Order.
14. The Applicant intends to use the proceeds of the Private Placement to resolve outstanding fees, prepare audited financial statements and pay all other costs associated with applying for a full revocation of the Cease Trade Orders.
15. The Applicant intends to prepare and file continuous disclosure documents and pay all outstanding fees within a reasonable period of time following the completion of the Private Placement. The Applicant also intends to apply to the applicable securities regulators to have the Cease Trade Orders fully revoked.
16. Other than the failure to file the Unfiled Continuous Disclosure, the Applicant is not in default of any of the requirements of the Act or the rules and regulations made pursuant thereto. The Applicant's SEDAR and SEDI profiles are up to date.
17. The Applicant intends to allocate the proceeds from the Private Placement as follows:
Description
Cost
Accounting, audit and legal fees associated with the preparation and filing of the relevant continuous disclosure documents, as well as the preparation of the materials for the annual meeting, the Private Placement, and the applications for the partial revocation order and the full revocation order:
$10,000
Filing fees associated with obtaining the partial revocation order and the full revocation order, including fees payable to the applicable regulators, including the Commission:
$85,887.15
Legacy accounts payable, including accounting and legal fees, consulting fees and outstanding transfer agent fees:
$4,112.85
Total:
$100,000
18. The Applicant reasonably believes that the Private Placement will be sufficient to bring its continuous disclosure obligations up to date and pay all related outstanding fees.
19. As the Private Placement would involve a trade of securities and acts in furtherance of trades, the Private Placement cannot be completed without a partial revocation of the ON Cease Trade Order and the BC Cease Trade Order.
20. The Private Placement will be completed in accordance with all applicable laws.
21. Prior to completion of the Private Placement, the Applicant will:
(a) provide any subscriber to the Private Placement with:
(i) a copy of the Cease Trade Orders;
(ii) a copy of the partial revocation order for which the application has been made; and
(b) obtain from each subscriber a signed and dated acknowledgment which clearly states that all of the Applicant's securities, including the securities issued in connection with the Private Placement, will remain subject to the Cease Trade Orders, and that the issuance of a partial revocation order does not guarantee the issuance of a full revocation order in the future.
22. Upon issuance of this order, the Applicant will issue a press release announcing the order and the intention to complete the Private Placement. Upon completion of the Private Placement, the Applicant will issue a press release and file a material change report. As other material events transpire, the Applicant will issue appropriate press releases and file material change reports as applicable.
AND UPON considering the application and the recommendations of staff of the Commission;
AND UPON the Director being satisfied that to do so would not be prejudicial to the public interest;
IT IS ORDERED, pursuant to Section 144 of the Act, that the ON Cease Trade Order is partially revoked solely to permit the trades in securities of the Applicant (including for greater certainty, acts in furtherance of trades in securities of the Applicant) that are necessary for and are in connection with the Private Placement, provided that:
(a) prior to completion of the Private Placement, the Applicant will:
(i) provide to each subscriber under the Private Placement a copy of the Cease Trade Orders;
(ii) provide to each subscriber under the Private Placement a copy of this order; and
(iii) obtain from each subscriber under the Private Placement a signed and dated acknowledgment, which clearly states that all of the Applicant's securities, including the securities issued in connection with the Private Placement, will remain subject to the Cease Trade Orders, and that the issuance of a partial revocation order does not guarantee the issuance of a full revocation order in the future.
(b) The Applicant will make available a copy of the written acknowledgements referred to in paragraph (a)(iii) to staff of the Commission on request; and
(c) This order will terminate on the earlier of the closing of the Private Placement and 60 days from the date hereof.
DATED this 14th day of September, 2022.
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- Application for an order that the issuer is not a reporting issuer under applicable securities laws -- issuer has outstanding warrants exercisable into securities of acquiror -- warrant holders no longer require public disclosure in respect of the issuer -- relief granted.
Securities Act, R.S.O. 1990, c. S.5, as am., s.1(10)(a)(ii).
DÉCISION No: 2022-IC-1049773
No dossier SEDAR: 7533
August 30, 2022
The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for an order under the securities legislation of the Jurisdictions (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Order Sought).
Under the Process for Cease to be a Reporting Issuer Applications (for a dual application):
(a) the Autorité des marchés financiersis the principal regulator for this application;
(b) the Filer has provided notice that subsection 4C.5(1) of Regulation 11-102 Passport System, CQLR c V-1.1, r 1 (Regulation 11-102) is intended to be relied upon in each of British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador; and
(c) this order is the order of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in Regulation 14-101 respecting Definitions, CQLR c V-1.1, r 3, Regulation 11-102 and, in Québec, in Regulation 14-501Q on definitions, CQLR c V-1.1, r 4 have the same meaning if used in this order, unless otherwise defined.
This order is based on the following facts represented by the Filer:
1. The Filer is a corporation governed by the Canada Business Corporations Act, RSC 1985, c C-44 (the CBCA), after having previously been continued from the British Columbia Business Corporation Act, SBC 2002 c 57 (the BCBCA) on December 20, 2019. Its head office is located in Québec.
2. On May 1, 2022, the Filer and Sandstorm Gold Ltd. (the Purchaser) entered into an arrangement agreement (the Arrangement Agreement) providing for, among other things, the acquisition by the Purchaser of all of the issued and outstanding common shares of the Filer (the Filer Shares), by way of a plan of arrangement under the CBCA (the Arrangement).
3. The Arrangement was completed on August 15, 2022.
4. The Purchaser is a reporting issuer in all of the provinces and territories of Canada. Its head office is located in British Columbia. The Purchaser's common shares are listed on the Toronto Stock Exchange (TSX) and the New York Stock Exchange (NYSE).
5. The Filer is a reporting issuer in all of the provinces and territories of Canada.
6. The Arrangement was approved by the shareholders of the Filer at a special meeting of the shareholders held on August 9, 2022 (the Meeting) by 99.73% of the votes cast by shareholders entitled to vote at the Meeting, excluding the votes cast by certain persons required to be excluded pursuant to Regulation 61-101 respecting Protection of Minority Security Holders in Special Transactions, CQLR c V-1.1, r 33 and by the Superior Court of Québec during a final hearing held on August 12, 2022.
7. The full details of the Arrangement and the intention of the Filer to make an application to cease to be a reporting issuer are contained in a management proxy circular of the Filer dated July 11, 2022, a copy of which (in English only) is available under the Filer's profile on SEDAR at www.sedar.com.
8. Pursuant to the Arrangement:
(a) on August 15, 2022, the Purchaser acquired the Filer Shares in exchange for 1.21 common shares of the Purchaser (the Purchaser Shares) per one Filer Share; and
(i) the holders of such acquired Filer Shares have ceased to have any rights as holders of the Filer Shares;
(ii) the names of such holders have been removed from the register of holders of the Filer Shares maintained by or on behalf of the Filer; and
(iii) the Purchaser has been recorded as the holder of the Filer Shares so transferred and the legal and beneficial owner thereof.
(b) each holder of the Filer's restricted share units (the RSUs), whether or not vested, received a cash payment for each RSU;
(c) each holder of the Filer's performance share units (the PSUs), whether or not vested, received a cash payment for each PSU;
(d) each holder of the Filer's deferred share units (the DSUs) received a cash payment for each DSU; and
(e) each holder of any stock options to acquire the Filer Shares, whether or not vested, received in exchange for each Filer stock option a fully vested stock option from the Purchaser to purchase from the Purchaser a number of Purchaser Shares calculated according to the terms provided in the Arrangement plan attached as Schedule A to the Arrangement Agreement.
9. The authorized capital of the Filer consists of an unlimited number of the Filer Shares and an unlimited number of preferred shares issuable in one or more series. As of the date hereof, there are 61,469,857 shares outstanding, and no preferred shares issued and outstanding. All the Filer Shares are held by the Purchaser. The Filer Shares are listed on the TSX, the NYSE and the Frankfurt Stock Exchange (FSE).
10. The Filer Shares were delisted from the TSX as at the close of business on August 16, 2022, from the FSE as at the close of business on August 17, 2022 and from the NYSE as at the close of business on August 25, 2022. The Filer is no longer required to comply with the continuous disclosure requirements under Section 15(d) of the Securities Exchange Act of 1934. Pursuant to Rule 12h-3 under the U.S. Securities Exchange Act of 1934, the Filer's duty to file reports under the Act of 1934 were suspended immediately upon the filing of Form 15. Accordingly, the Filer is no longer required to comply with any of the continuous disclosure requirements in the United States.
11. As at the date hereof, there are 21,991,846 warrants to purchase common shares of the Filer issued and outstanding (the Warrants) entitling the holders thereof (each, a Warrant Holder), upon the exercise of each Warrant to subscribe to Purchaser Shares.
12. The Warrants registered on the TSX were delisted from the TSX at the close of business on August 16, 2022.
13. The Warrants are held by approximately 1,670 Warrant Holders, which includes the beneficial Warrant Holders as at June 17, 2022, and the registered Warrant Holders as at August 12, 2022, residing in the following jurisdictions:
(a) 136 in Ontario;
(b) 78 in Alberta;
(c) 201 in British Columbia;
(d) 36 in Québec;
(e) 10 in Saskatchewan;
(f) 10 in Manitoba;
(g) 6 in New Brunswick;
(h) 6 in Nova Scotia;
(i) 1 in Newfoundland and Labrador;
(j) 1 in the Northwest Territories;
(k) 1,143 in the United States; and
(l) 42 in other foreign jurisdictions (other than the United States).
14. Upon completion of the Arrangement, the Warrants may be exercisable only for Purchaser Shares and may no longer be exercisable for Filer Shares.
15. Under the Arrangement, the Purchaser is obligated to meet the Filer's obligations upon exercise of the Warrants and such number of Purchaser Shares have been reserved for issuance.
16. The Filer is not required to remain a reporting issuer in any jurisdiction in Canada under any contractual arrangement between the Filer and the Warrant Holders.
17. The Filer cannot rely on the simplified procedure set out in section 19 of National Policy 11-206 respecting Process for Cease to be a Reporting Issuer Applications (National Policy 11-206) as the Filer's outstanding securities are beneficially owned, directly or indirectly, by more than 15 securityholders in each of the jurisdictions of Canada and more than 51 securityholders in total worldwide. Moreover, the Filer is unable to rely on the modified procedure set out in National Policy 11-206 as the Filer is a corporation existing under the CBCA and does not meet the criteria listed in Section 20 of National Policy 11-206 in respect of foreign issuers.
18. The Filer has no intention to seek a financing in the future by issuing any further securities to the public and has no intention of issuing any securities other than the issuance of securities to the Purchaser or its affiliates.
19. The Filer is not in default of securities legislation in any jurisdiction in Canada, except for the filing of the Filer's condensed consolidated interim financial statements for the three and six months ended June 30, 2022 and 2021, the Filer's management's discussion and analysis for the three and six months ended June 30, 2022 and the corresponding certification of interim filings of the Chief Executive Officer and Chief Financial Officer of the Filer under Form F2 of Regulation 52-109 respecting Certification of Disclosure in Issuers' Annual and Interim Filings, CQLR c V-1.1, r 27.
20. The Filer is not an OTC reporting issuer under Regulation 51-105 respecting Issuers Quoted in the U.S. Over-the-Counter Markets, CQLR c V-1.1, r 24.1.
21. No securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in Regulation 21-101 respecting Marketplace Operation, CQLR c V-1.1, r 5, or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
22. Upon granting the Order Sought, the Filer will no longer be a reporting issuer in any of the provinces of Canada.
Each of the Decision Makers is satisfied that the order meets the test set out in the Legislation for the Decision Maker to make the order.
The decision of the Decision Makers under the Legislation is that the Order Sought is granted.
Spyglass Resources Corp. -- s. 144(1)
Section 144(1) -- Application to vary a cease trade order -- cease trade order varied to permit beneficial shareholders, who are not insiders or control persons, to sell securities outside of Canada, subject to conditions.
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 127 and 144.
WHEREAS the securities of the Issuer are subject to a cease trade order issued by the Director of the Ontario Securities Commission (the "Commission") on May 10, 2016, under paragraph 2 of subsection 127(1) and subsection 127(4.1) of the Act directing that trading in the securities of the Issuer, whether direct or indirect, cease until further order by the Director (the "Cease Trade Order");
AND WHEREAS a cease trade order with respect to the Issuer's securities was also issued by the Alberta Securities Commission on May 6, 2016, the Manitoba Securities Commission on May 9, 2016, British Columbia Securities Commission on May 12, 2016, and the Autorité des marchés financiers on May 24, 2016;
AND WHEREAS the Issuer's securities are not listed on and do not trade on any exchange in Canada;
AND WHEREAS an application was made on behalf of a shareholder of the Issuer to the Commission pursuant to section 144(1) of the Act to vary the Cease Trade Order;
AND UPON the Director being satisfied that:
a) the terms and conditions to the Cease Trade Order put Ontario resident shareholders of the Issuer at a disadvantage to certain shareholders who are free to trade their shares over a foreign market;
b) effective June 23, 2016, the Canadian Securities Administrators harmonized the response to a specified default under National Policy 11-207 Failure-to-File Cease Trade orders and Revocations in Multiple Jurisdictions to include standard carve-out language permitting shareholders to sell securities of an issuer subject to a cease trade order over a foreign organized regulated market if certain conditions are satisfied; and
c) it is not prejudicial to the public interest to vary the Cease Trade Order under section 144(1) of the Act;
IT IS ORDERED that, pursuant to section 144(1) of the Act, the Cease Trade Order be varied by including the following section:
DESPITE THIS ORDER, a beneficial securityholder of the Reporting Issuer who is not, and was not at the date of this order, an insider or control person of the Reporting Issuer, may sell securities of the Reporting Issuer acquired before the date of this order if both of the following apply:
(a) The sale is made through a "foreign organized regulated market", as defined in section 1.1 of the Universal Market Integrity Rules of the Investment Industry Regulatory Organization of Canada; and
(b) The sale is made through an investment dealer registered in a jurisdiction of Canada in accordance with applicable securities legislation.
DATED this 16th day of September, 2022.
SEI Investments Canada Company and Long Duration Credit Bond Fund
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- Application for the Fund to cease being a reporting issuer under applicable securities law -- relief granted.
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
September 12, 2022
The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of the Fund, for an order under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the Fund has ceased to be a reporting issuer in all jurisdictions of Canada in which the Fund is a reporting issuer (the Order Sought).
Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) the Filer has provided notice that subsection 4C.5(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Quebec, Newfoundland and Labrador, Northwest Territories, Yukon, and Nunavut.
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
This order is based on the following facts represented by the Filer:
1. the Fund is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets;
2. the outstanding securities of the Fund, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide;
3. no securities of the Fund, including debt securities, are traded in Canada or another country on a marketplace as defined in National Instrument 21-101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported;
4. the Filer is applying for an order that the Fund has ceased to be a reporting issuer in all of the jurisdictions of Canada in which the Fund is a reporting issuer; and
5. the Fund is not in default of securities legislation in any jurisdiction.
The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.
The decision of the principal regulator under the Legislation is that the Order Sought is granted.
Pembroke Private Wealth Management Ltd. and Pembroke Canadian All Cap Fund
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief granted from 15.3(2), 15.6(1)(a)(i) and 15.6(1)(d) of National Instrument 81-102 Investment Funds to permit a mutual fund, that has not distributed securities under a simplified prospectus in a jurisdiction for 12 consecutive months, to include in their sales communications performance data for the period when the fund was not a reporting issuer -- relief also granted from section 2.1 of National Instrument 81-101 Mutual Fund Prospectus Disclosure for the purposes of the relief requested from Item 5 of Part I of Form 81-101F3 Contents of Fund Facts Document, to permit the mutual fund to include in its fund facts, the past performance data for the period when the fund was not a reporting issuer.
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief granted from section 4.4 of National Instrument 81-106 Investment Fund Continuous Disclosure for the purposes of the relief requested from Form 81-106F1 Contents of Annual and Interim Management Report of Fund Performance, items 3.1(7), 4.1(1), 4.1(2), 4.2(1), 4.3(1) and 4.3(2) of Part B of Form 81-106F1, and Items 3(1) and 4 of Part C of Form 81-106F1, to permit a mutual fund to include in annual and interim management reports of fund performance the financial highlights and past performance of the fund that are derived from the fund's annual financial statements that pertain to time periods when the fund was not a reporting issuer.
National Instrument 81-102 Investment Funds, ss. 15.3(2), 15.6(1)(a)(i), 15.6(1)(d), and 19.1.
National Instrument 81-101 Mutual Fund Prospectus Disclosure, s. 2.1.
Form 81-101F3 Contents of Fund Facts Document, Item 5 of Part I.
National Instrument 81-106 Investment Fund Continuous Disclosure, s. 4.4.
Form 81-0106F1 Contents of Annual and Interim Management Report of Fund Performance, Items 3.1(7), 4.1(1), 4.1(2), 4.2(1), 4.3(1), and 4.3(2) of Part B, and Items 3(1) and 4 of Part C.
March 28, 2022
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application (the Application) from the Filer on behalf of the Fund for a decision under the securities legislation of the Jurisdictions (the Legislation) exempting units of the Fund from:
a) Sections 15.3(2), 15.6(1)(a)(i) and 15.6(1)(d)(i) of Regulation 81-102 respecting Investment Funds, CQLR, c. V-1.1, r. 39 (Regulation 81-102) to permit the Fund to include performance data in sales communications notwithstanding that:
i) the performance data will relate to a period prior to the Fund offering its securities under a simplified prospectus; and
ii) the Fund has not distributed its securities under a simplified prospectus for 12 consecutive months,
b) Section 2.1 of Regulation 81-101 respecting Mutual Fund Prospectus Disclosure, CQLR, c. V-1.1, r.38 (Regulation 81-101) to meet the requirements from Form 81-101F3 Contents of Fund Facts Document (Form 81-101F3), and
c) Items 5(2), 5(3) and 5(4) and Instruction (1) of Part I of Form 81-101F3 in respect of the requirement to comply with sections 15.3(2), 15.6(1)(a)(i) and 15.6(1)(d)(i) of Regulation 81-102 to permit the Fund to include in its fund facts the past performance data of the Fund notwithstanding that:
i) such performance data relates to a period prior to the Fund offering its securities under a simplified prospectus; and
ii) the Fund has not distributed its securities under a simplified prospectus for 12 consecutive months,
d) Section 4.4 of Regulation 81-106 respecting Investment Fund Continuous Disclosure, CQLR, c. V-1.1, r. 42 (Regulation 81-106) from Form 81-106F1 Contents of Annual and Interim Management Report of Fund Performance (Form 81-106F1); and
e) Items 3.1(7), 4.1(1) (in respect of the requirement to comply with section 15.3(2) of Regulation 81-102), 4.1(2), 4.2(1), 4.3(1) and 4.3(2) of Part B of Form 81-106F1 and Items 3(1) and 4 of Part C of Form 81-106F1 to permit the Fund to include, in its annual and interim management reports of fund performance (MRFPs), past performance data notwithstanding that such performance data relates to a period prior to the Fund offering its securities under a simplified prospectus;
(collectively, the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
a) the Autorité des marchés financiers is the principal regulator for this Application,
b) the Filer has provided notice that section 4.7(1) of Regulation 11-102 respecting Passport System, CQLR, c. V-1.1, r. 1 (Regulation 11-102) is intended to be relied upon by the Filer in the following jurisdictions: Alberta, British Columbia, Prince Edward Island, Manitoba, New Brunswick, Nova Scotia, Saskatchewan and Newfoundland and Labrador (the Notified Passport Jurisdictions and collectively with the Jurisdictions, the Jurisdictions of Canada); and
c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in Regulation 14-101 respecting Definitions, CQLR, c. V-1.1, r. 3 and Regulation 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Fund is an open-ended mutual fund trust created under the laws of Ontario on January 31, 2019.
2. The Filer is a corporation incorporated under the laws of Canada having its head office in Montreal, Quebec.
3. The Filer is registered under securities legislation in Quebec, Ontario and Newfoundland and Labrador as an investment fund manager and in Quebec, Alberta, British Columbia, Prince Edward Island, Manitoba, New Brunswick, Nova Scotia, Ontario, Saskatchewan and Newfoundland and Labrador as a dealer in the category of mutual fund dealer. The Filer is the investment fund manager, promoter and trustee of the Fund.
4. Pembroke Management Ltd., a registered portfolio manager in Quebec, Alberta, British Columbia, Manitoba and Ontario, has been appointed as the portfolio manager of the Fund. Since the Fund commenced operations, Pembroke Management Ltd. has been the portfolio manager of the Fund.
5. Units of the Fund were previously only distributed to investors in the Jurisdictions of Canada on a prospectus-exempt basis in accordance with Regulation 45-106 respecting Prospectus Exemptions, CQLR, V-1.1, r. 21.
6. In order to commence distributing its units pursuant to a simplified prospectus, the Fund filed on March 2, 2022 a preliminary simplified prospectus and annual information form, as well as fund facts. Upon the issuance of a receipt for the final simplified prospectus (the Prospectus) and annual information form of the Fund, the Fund will become a reporting issuer in each of the Jurisdictions of Canada and will become subject to the requirements of Regulation 81-102 and Regulation 81-106.
7. The Filer and the Fund are not in default of securities legislation in any of the Jurisdictions of Canada.
8. Since the Fund commenced operations as a mutual fund, it has complied with its obligation to prepare and deliver audited annual and unaudited interim financial statements to all holders of its securities in accordance with Regulation 81-106.
9. Since the Fund commenced operations, it has complied with the investment restrictions and practices contained in Regulation 81-102, including not using leverage in the management of its portfolio.
10. Since the Fund commenced operations, the Fund has not paid any management fees to the Filer and such fees have been paid directly by investors in the Fund. This will continue to be the case after the Fund becomes a reporting issuer.
11. The Fund will be managed substantially similarly after it becomes a reporting issuer as it was prior to becoming a reporting issuer. As a result of the Fund becoming a reporting issuer:
a) the Fund's investment objectives will not change, other than to provide additional detail as required by Regulation 81-101;
b) the day-to-day administration of the Fund in respect of its units will not change other than to comply with the additional regulatory requirements associated with being a reporting issuer (none of which impact the portfolio management of the Fund) and to provide additional features that are available to investors of mutual funds managed by the Filer, as described in the Prospectus; and
c) the intention of the Filer is to absorb expenses of the Fund to maintain the existing management expense ratio (MER) of the Fund at approximately the same level of the Fund prior to becoming a reporting issuer. Any such expense absorption may be discontinued in the future, however the Filer does not expect any material increase in MER once the absorption stops.
12. The Filer proposes to present the performance data of the Fund in sales communications and fund facts for a period prior to it becoming a reporting issuer.
13. Without the Exemption Sought, the sales communications and fund facts pertaining to the Fund cannot include performance data that relates to a period prior to the Fund becoming a reporting issuer.
14. Without the Exemption Sought, sales communications pertaining to the Fund would not be permitted to include performance data until the Fund has distributed securities under a simplified prospectus in a jurisdiction for 12 consecutive months.
15. The Filer proposes to include in the fund facts for the Fund, past performance data in the chart required by items 5(2), 5(3) and 5(4) of Part I of Form 81-101F3 under the sub-headings "Year-by-year returns", "Best and worst 3-month returns" and "Average return" related to periods prior to the Fund becoming a reporting issuer in a jurisdiction.
16. Without the Exemption Sought, the MRFP of the Fund cannot include financial highlights and performance data that relates to a period prior to the Fund becoming a reporting issuer.
17. The past performance data and other financial data of the Fund for the time period before it became a reporting issuer is significant and meaningful information that can assist existing and prospective investors in making an informed decision whether to purchase units of the Fund.
18. The Filer submits that the Exemption Sought is not detrimental to the protection of investors.
Each of the Decision Makers 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 Makers under the Legislation is that the Exemption Sought is granted provided that:
a) any sales communication and any fund facts that contain performance data of the Fund relating to a period prior to when the Fund was a reporting issuer discloses:
i) that the Fund was not a reporting issuer during such period;
ii) that the expenses of the Fund would have been higher during such period had the Fund been subject to the additional regulatory requirements applicable to a reporting issuer; and
iii) performance data of the Fund for 10, 5, 3 and one year periods;
b) the information contained under the heading "Fund Expenses Indirectly Borne by Investors" in Part B of the simplified prospectus of the Fund based on the MER for the Fund for the financial year ended December 31, 2021 be accompanied by disclosure that:
i) the information is based on the MER of the Fund for its last completed financial year when its units were offered privately during part of such financial year; and
ii) the MER of the Fund may increase as a result of the Fund offering its units under the simplified prospectus.
c) any MRFP that includes performance data of the Fund relating to a period prior to when the Fund was a reporting issuer discloses:
i) that the Fund was not a reporting issuer during such period;
ii) that the expenses of the Fund would have been higher during such period had the Fund been subject to the additional regulatory requirements applicable to a reporting issuer;
iii) that the financial statements of the Fund for such period are posted on the Fund's website and are available to investors upon request; and
iv) performance data of the Fund for 10,5, 3 and one year periods;
d) the Filer posts the financial statements of the Fund since it has commenced its operations on the Fund's website and makes those financial statements available to investors upon request.
R.E.G.A.R. Gestion Privée Inc.
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdiction -- Relief granted under subsection 62(5) of the Securities Act to mutual funds for extension of the lapse date of their prospectuses -- Extension of the lapse date of the simplified prospectus until completion of mergers of the funds.
Securities Act (Ontario), R.S.O. 1990, c. S.5, as am., s. 62(5).
March 14, 2022
The securities regulatory authority or regulator in each of the Jurisdictions (the "Decision Maker") has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the "Legislation") for an exemption pursuant section 2.5 of Regulation 81-101 respecting Mutual Fund Prospectus Disclosure, CQLR c. V-1.1, r. 38 ("Regulation 81-101") and Subsection 62(5) of the Securities Act, R.S.O. 1990, c. S.5 ("Security Act") to extend the time limits for the filing of the pro forma prospectus to the time limit that would be applicable if the lapse date was May 15, 2022 (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
a) the Autorité des marchés financiers is the principal regulator for this application,
b) the Filer has provided notice that section 4.7(1) of Regulation 11-102 respecting Passport System, CQLR c. V-1.1, r. 1 ("Regulation 11-102") is intended to be relied upon in Financial and Consumer Services Commission of New Brunswick, (collectively with the Jurisdictions, the Applicable Jurisdictions)
c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in Regulation 14-101 respecting Definitions, CQLR c. V-1.1, r. 3 and Regulation 11-102, Regulation 81-101, and Regulation 81-106 respecting Investment Fund Continuous Disclosure, CQLR c. V-1.1, r.42 ("Regulation 81-106") have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
The Filer
1. The Filer is a corporation established under the laws of Québec, and the head office of the Filer is in Québec, Québec.
2. The Filer is the manager for the RGP Global Sector Fund, the Sectorwise Conservative Portfolio, the Sectorwise Balanced Portfolio, the Sectorwise Growth Portfolio, the GreenWise Conservative Portfolio, the GreenWise Balanced Portfolio, the GreenWise Growth Portfolio and the RGP Global Sector Class (the "Funds").
3. The Filer is registered as an investment fund manager and portfolio manager in the Jurisdictions.
The Funds
4. Each of the Fund is a reporting issuer in Québec, Ontario and New Brunswick.
5. Neither the Filer nor any of the Funds are in default under securities legislation in any of the Applicable Jurisdictions.
6. Each of the Fund is a mutual fund pursuant to the meaning of Regulation 81-101 and is distributing securities through a prospectus respecting the provisions of Regulation 81-101.
7. The securities for the Funds are currently distributed to the public in Québec, Ontario and New Brunswick pursuant to a simplified prospectus dated April 15, 2021 as amended by amendment no. 1 dated January 24, 2022 and related annual information form and fund facts (the Current Offering Documents).
8. Pursuant to section 2.5 of Regulation 81-101 and subsection 62(1) of the Securities Act, the lapse date for the distribution of securities under the Current Offering Documents is April 15, 2022 (the Lapse Date).
Reasons for Exemption Sought
9. On March 23, 2022, the Filer will hold a special meeting of each of RGP Global Sector Fund, the RGP Global Sector Class, the GreenWise Conservative Portfolio, the GreenWise Balanced Portfolio, and the GreenWise Growth Portfolio (collectively, the Special Meetings) regarding the approval by securityholders of changes in investment objectives ("Changes in Investment Objective"), as announced on January 14, 2022.
10. The Filer wishes to include in the pro forma prospectus and related documents, subject to securityholder approval during the Special Meetings, the Changes in Investment Objective.
11. The fiscal year-end of the Funds is December 31 and, pursuant to sections 2.2 and 4.2 of Regulation 81-106, the annual financial statements and management report of fund performance are required to be filed on or before the 90th day after the Funds' most recently completed financial year.
12. Concurrently with the filing of the pro forma prospectus, the Filer must proceed, for each Funds, with the filling of a fund fact that complies with Regulation 81-101, including the requirements to provide the management expense ratio disclosed in the most recently filed management report of fund performance for each Fund.
13. The most recently filed management report of fund performance for each Fund is the interim management report of fund performance for the period from January 1, 2021 to June 30, 2021.
14. It would be more efficient and cost effective to extend the time limits provided by subsection 2.5 of Regulation 81-101 and subsection 62(2) of the Securities Act to the Exemption Sought.
15. The Filer submits the Exemption Sought will not affect the general accuracy of the information contained in the Current Offering Documents and therefore will not be prejudicial to the public interest.
16. Given the disclosure obligations of the Funds, should any material changes occur, the Current Offering Documents will be amended as required under the applicable legislation.
Each of the Decision Makers 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 Makers under the Legislation is that the Exemption Sought is granted.
ATB Investment Management Inc. et al.
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- relief from paragraphs 2.5(2)(a) and 2.5(2)(c) of NI 81-102 to allow funds to continue to hold units of underlying pooled fund that is not a reporting issuer that were acquired under previous relief that is being revoked and replaced -- funds to dispose of units of underlying pooled fund if underlying pooled fund ceases to comply with Parts 2, 4 and 6 of NI 81-102 or Part 14 of NI 81-106.
National Instrument 81-102 Investment Funds, ss. 2.5(2)(a)(i), 2.5(2)(c), and 19.1.
August 19, 2022
The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer on behalf of the Top Funds for a decision under the securities legislation of the Jurisdictions (the Legislation)
(a) revoking the Prior Alberta Decisions (as defined below); and
(b) replacing the Prior Alberta Decisions with a decision providing an exemption from subparagraph 2.5(2)(a)(i) and paragraph 2.5(2)(c) of National Instrument 81-102 Investment Funds (NI 81-102) to permit each Top Fund to continue to hold units of BlackRock CDN US Equity Index Fund (the Underlying Pooled Fund)
(collectively, the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application),
(a) the Alberta Securities Commission is the principal regulator for the application;
(b) 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 British Columbia, Saskatchewan, Manitoba, Québec, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut (together with Alberta and Ontario, the Proposed Jurisdictions); and
(c) this decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in National Instrument 14-101 Definitions or MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
The Filer and the Top Funds
1. The Filer is a corporation with its head office located in Edmonton, Alberta.
2. The Filer is registered as a portfolio manager in each of Alberta, British Columbia, Nova Scotia, Ontario and Saskatchewan and as an investment fund manager in each of Alberta, Newfoundland and Labrador, Nova Scotia, Ontario and Saskatchewan.
3. The Filer is the manager of each Top Fund.
4. Each Top Fund is a "mutual fund", as such term is defined under the Securities Act (Alberta) (the Act).
5. Each Top Fund has a simplified prospectus and fund facts document prepared in accordance with National Instrument 81-101 Mutual Fund Prospectus Disclosure, and units of each Top Fund are, or are proposed to be, qualified for distribution in the Proposed Jurisdictions (with the exception of Québec).
6. Each Top Fund is, or is proposed to be, a reporting issuer under the securities legislation of the Proposed Jurisdictions (with the exception of Québec) and is subject to NI 81-102.
7. Neither the Filer nor the Top Funds is in default of securities legislation in any of the Proposed Jurisdictions, but for the fact that units of certain Top Funds are held by a limited number of investors in Ontario without these Top Funds obtaining an exemption from NI 81-102 in Ontario to permit these Top Funds to invest in units of the Underlying Pooled Fund in such jurisdiction.
Prior Decisions
8. Pursuant to a decision dated November 30, 2004 (the 2004 Decision), the Filer was granted exemptive relief in Alberta from (then) subsections 2.1(1), 2.2(1)(a), 2.5(2)(a) and 2.5(2)(c) of NI 81-102 to permit certain mutual funds and any future mutual funds managed by the Filer, including the Top Funds, to invest in certain pooled funds that are not subject to NI 81-102.
9. Pursuant to a decision dated December 7, 2005, the Filer was granted exemptive relief in British Columbia and Saskatchewan from (then) subsections 2.1(1), 2.2(1)(a), 2.5(2)(a) and 2.5(2)(c) of NI 81-102 to permit certain mutual funds and any future mutual funds managed by the Filer, including the Top Funds, to invest in certain pooled funds that are not subject to NI 81-102.
10. Pursuant to the provisions of subsection 4.8(1)(c) of MI 11-102, the Filer provided notice to the Alberta Securities Commission on September 19, 2016 (the 2016 Notice, and, together with the 2004 Decision, the Prior Alberta Decisions), as principal regulator, that the Filer intended to rely upon the 2004 Decision in each of Manitoba, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Northwest Territories, Yukon and Nunavut.
11. The Filer is seeking to revoke and replace the Prior Alberta Decisions with this decision so that the Filer may rely on a single decision that grants relief for the Top Funds to continue to hold units of the Underlying Pooled Fund in all Proposed Jurisdictions.
Investment Objectives of the Top Funds
12. The investment objective of Compass Conservative Balanced Portfolio is to provide investors with long-term capital appreciation and some income while reducing short-term volatility by investing in a balanced portfolio of fixed income and equity securities, with a bias towards fixed income securities.
13. The investment objective of Compass Balanced Portfolio is to provide investors with long-term capital appreciation while reducing short-term volatility by investing in a balanced portfolio of fixed income and equity securities.
14. The investment objective of Compass Balanced Growth Portfolio is to provide investors with long-term capital appreciation by investing in a balanced portfolio of equity and fixed income securities, with a bias towards equity securities.
15. The investment objective of Compass Growth Portfolio is to provide investors with long-term capital appreciation by investing in a diversified portfolio of primarily equity securities, with some fixed income securities to reduce volatility.
16. The investment objective of Compass Maximum Growth Portfolio is to provide investors with long-term capital appreciation by investing in a diversified portfolio of equity securities.
17. A significant portion or even all of the assets of each of Compass Conservative Balanced Portfolio, Compass Balanced Portfolio, Compass Balanced Growth Portfolio, Compass Growth Portfolio and Compass Maximum Growth Portfolio may consist of securities of other mutual funds, including exchange traded funds, and the Underlying Pooled Fund, that provide it with exposure to investments that are consistent with its investment objectives and strategies.
18. The investment objective of ATBIS U.S. Equity Pool is to seek to achieve long-term capital growth primarily by investing in, or gaining exposure to, equity securities of issuers in the United States. Up to 100% of its assets may consist of securities of other mutual funds, including exchange traded funds, and the Underlying Pooled Fund.
The Underlying Pooled Fund
19. The Underlying Pooled Fund is a "mutual fund", as such term is defined under the Act.
20. The Underlying Pooled Fund is not a reporting issuer in any of the Proposed Jurisdictions and is therefore not subject to NI 81-102, with the exception of section 2.5.1 of NI 81-102.
21. Units of the Underlying Pooled Fund are available for purchase by investors who qualify pursuant to an exemption from the prospectus requirement, such as those that meet the definition of an "accredited investor" as set forth in National Instrument 45-106 Prospectus Exemptions, which includes the Top Funds.
22. BlackRock Asset Management Canada Limited (BlackRock) is the manager of the Underlying Pooled Fund and is not related to the Filer.
23. The investment objective of the Underlying Pooled Fund is to achieve a return equal to the total return of the S&P 500 Total Return Index on an unhedged basis. This objective is achieved by investing primarily in equity, debt and short-term money market instruments and derivative securities either directly or through investments in other funds, including funds managed by BlackRock or any affiliate.
24. The investment strategies and restrictions of the Underlying Pooled Fund are consistent with NI 81-102, and, to the knowledge of the Filer, BlackRock manages the Underlying Pooled Fund in accordance with NI 81-102, as if it were applicable.
25. The investment objectives and strategies of each Top Fund permit the Top Fund to hold units of the Underlying Pooled Fund, subject to being granted the Exemption Sought.
Investments by the Top Funds in the Underlying Pooled Fund
26. Each Top Fund currently holds less than 15% of its net asset value (NAV) in units of the Underlying Pooled Fund.
27. The Top Funds currently have unrealized capital gains from their investments in the Underlying Pooled Fund.
28. The Exemption Sought is being sought in order to allow the Top Funds to continue to hold units of the Underlying Pooled Fund until such time as the portfolio manager of the applicable Top Fund determines that it is in the best interests of the Top Fund to dispose of such investment.
29. Each Top Fund will not purchase additional units of the Underlying Pooled Fund, but rather, to the extent the portfolio manager desires a Top Fund to obtain investment exposure similar to that offered by the Underlying Pooled Fund, the Top Fund will purchase securities of other investment funds in compliance with the restrictions set out in section 2.5 of NI 81-102.
Impact on the Top Funds
30. An investment by a Top Fund in the Underlying Pooled Fund does not expose the Top Fund to any greater risk than, and provides similar investment exposure as, an investment in an investment fund that is subject to NI 81-102.
31. In the absence of the Exemption Sought, the Filer would not be able to qualify units of the Top Funds in Ontario without disposing of all investments held by the Top Funds in the Underlying Pooled Fund. The Top Funds will incur costs and trigger significant taxable gains that would flow through to investors related to the disposition of these investments and the resulting re-investment of the assets of the Top Funds in other investment funds or individual securities.
32. Each investment held a Top Fund in the Underlying Pooled Fund is made in accordance with the investment objectives and strategies of the Top Fund.
33. With the exception of the Exemption Sought to continue to hold units of the Underlying Pooled Fund, the Top Funds otherwise comply fully with section 2.5 of NI 81-102 in their investments in the Underlying Pooled Fund.
34. The Top Funds provide all applicable disclosure mandated for mutual funds investing in other mutual funds, including disclosure in quarterly portfolio holding reports, financial statements and fund facts documents.
Management of the Underlying Pooled Fund
35. Pursuant to the Prior Decisions, the Top Funds have invested in units of the Underlying Pooled Fund for some time and the portfolio manager of the Top Funds is comfortable with the investment style and approach used by BlackRock in managing the Underlying Pooled Fund.
36. The portfolio of the Underlying Pooled Fund consists primarily of highly liquid, publicly traded securities.
37. To the knowledge of the Manager, the Underlying Pooled Fund does not utilize leverage, does not short sell and otherwise complies with the investment restrictions in NI 81-102 as though such restrictions would apply to the Underlying Pooled Fund, including the illiquid assets restriction in section 2.4 of NI 81-102 and the investments in other investment funds restriction in section 2.5 of NI 81-102.
38. Units of the Underlying Pooled Fund are valued and redeemable on the same dates as units of the Top Funds. A redemption by a Top Fund of units of the Underlying Pooled Fund will be effected based on the Underlying Pooled Fund's NAV, less any transaction costs allocated to the Top Fund by BlackRock, which is calculated in accordance with Part 14 of National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106).
Each of the Decision Makers 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 Makers under the Legislation is that the Exemption Sought is granted provided that
(a) each Top Fund will not purchase additional units of the Underlying Pooled Fund;
(b) the Top Funds dispose of their investment in the Underlying Pooled Fund as quickly as is commercially reasonable, if the Filer determines that the Underlying Pooled Fund no longer complies with Parts 2, 4 and 6 of NI 81-102 or Part 14 of NI 81-106; and
(c) the prospectus of the Top Funds discloses, or will disclose in the next renewal or amendment thereto following the date of this decision, and each subsequent renewal or amendment, the fact that the Top Funds may continue to hold units of the Underlying Pooled Fund.
Temporary, Permanent & Rescinding Issuer Cease Trading Orders
Company Name |
Date of Temporary Order |
Date of Hearing |
Date of Permanent Order |
Date of Lapse/Revoke |
|
||||
THERE IS NOTHING TO REPORT THIS WEEK. |
||||
Company Name |
Date of Order |
Date of Revocation |
|
||
i3 Interactive Inc. |
September 13, 2022 |
__________ |
|
||
Lake Winn Resources Corp. |
July 7, 2021 |
September 13, 2022 |
Temporary, Permanent & Rescinding Management Cease Trading Orders
Company Name |
Date of Order |
Date of Lapse |
|
||
THERE IS NOTHING TO REPORT THIS WEEK. |
||
Outstanding Management & Insider Cease Trading Orders
Company Name |
Date of Order or Temporary Order |
Date of Hearing |
Date of Permanent Order |
Date of Lapse/Expire |
Date of Issuer Temporary Order |
|
|||||
Performance Sports Group Ltd. |
19 October 2016 |
31 October 2016 |
31 October 2016 |
__________ |
__________ |
Company Name |
Date of Order |
Date of Lapse |
|
||
Agrios Global Holdings Ltd. |
September 17, 2020 |
__________ |
|
||
Gatos Silver, Inc. |
April 1, 2022 |
__________ |
|
||
Gatos Silver, Inc. |
April 12, 2022 |
__________ |
|
||
Sproutly Canada, Inc. |
June 30, 2022 |
__________ |
|
||
Gatos Silver, Inc. |
July 7, 2022 |
__________ |
|
||
PlantX Life Inc. |
August 4, 2022 |
__________ |
|
||
Radient Technologies Inc. |
August 5, 2022 |
__________ |
|
||
AION THERAPEUTIC INC. |
August 31, 2022 |
__________ |
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Type |
Company |
Category of Registration |
Effective Date |
|
|||
New Registration |
INP INVESTMENT MANAGEMENT INC. |
Investment Fund Manager, Portfolio Manager, and Exempt Market Dealer |
September 16, 2022 |
CDS Clearing and Depository Services Inc. (CDS®) -- Material Amendments to CDS External Procedures Related to the Participant Fund Administered by CDS for the New York Link Service -- OSC Staff Notice of Request for Comments
The Ontario Securities Commission is publishing for 30-day public comment material amendments to the CDS external procedures related to the CDS Participant Fund administered by CDS for the New York Link service.
The purpose of the proposed amendments is to enhance the risk methodology used to calculate the requirements to the CDS Participant Fund for the New York Link service.
The comment period ends on October 24, 2022.
A copy of the CDS Notice is published on our website at http://www.osc.ca.
Canadian Derivatives Clearing Corporation (CDCC) -- Proposed Amendments to the Risk Manual of the CDCC to Introduce a New Risk Model Recalibration Process -- Notice of Withdrawal
On February 23, 2021, the Canadian Derivatives Clearing Corporation ("CDCC") published the Notice to Members 2021-032: Request for Comments, Amendments to the Risk Manual of the Canadian Derivatives Clearing Corporation to introduce a new risk model recalibration process.
The objective of the proposed amendments was to introduce a new risk model recalibration and governance process. After review of the matter, CDCC hereby withdraws the Notice to Members / Request for Comments 2021-032. CDCC will publish a revised proposal of amendments to its Risk Manual in the coming months.
For more information, please contact Martin Jannelle, Senior Legal Counsel, at 514-787-6578 or at martin.jannelle@tmx.com.