Bank of Nova Scotia and Scotia Mortgage Investment Corporation - MRRS Decision
Headnote
Mutual Reliance Review System for Exemptive Relief Applications -- Exemption from the requirements to file annual certificates and interim certificates under Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings granted to a special purpose finance vehicle established by parent bank to provide the parent bank with a cost-effective means of raising capital for Canadian bank regulatory purposes -- finance vehicle previously had been exempted from the requirements to file financial statements, MD&A and AIFs.
Applicable Instruments
Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings.
National Instrument 51-102 Continuous Disclosure Obligations.
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO,
NEW BRUNSWICK, NEWFOUNDLAND AND LABRADOR, NOVA SCOTIA,
NORTHWEST TERRITORIES, NUNAVUT AND YUKON
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
THE BANK OF NOVA SCOTIA AND
SCOTIA MORTGAGE INVESTMENT CORPORATION
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision Maker") in each of Ontario, Alberta, Saskatchewan, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Northwest Territories, Nunavut and Yukon (the "Jurisdictions") has received an application from the Bank of Nova Scotia (the "Bank") and Scotia Mortgage Investment Corporation (the "Corporation") for a decision pursuant to the securities legislation of the Jurisdictions (the "Legislation"), that the requirements contained in the Legislation to:
(a) file annual certificates ("Annual Certificates") with the Decision Makers under section 2.1 of Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings ("MI 52-109"); and
(b) file interim certificates ("Interim Certificates" and together with the Annual Certificates, the "Certification Filings") with the Decision Makers under section 3.1 of MI 52-109;
shall not apply to the Corporation, subject to certain terms and conditions;
AND WHEREAS pursuant to the Mutual Reliance Review System for Exemptive Relief Applications (the "System"), the Ontario Securities Commission is the principal regulator for this application;
AND WHEREAS, unless otherwise defined, the terms herein have the meaning set out in National Instrument 14-101 Definitions;
AND WHEREAS pursuant to a Mutual Reliance Review System decision document dated March 13, 2002 (the "Previous Decision"), the Corporation is exempt from the requirements of securities legislation in the jurisdictions of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, Nova Scotia and Newfoundland, as applicable, concerning the preparation, filing and delivery of (i) interim financial statements and audited annual financial statements, (ii) annual filings in lieu of filing an information circular, where applicable and (iii) an annual information form (an "AIF") and management's discussion and analysis of the financial condition and results of operation of the Corporation ("MD&A");
AND WHEREAS the Corporation has delivered a notice dated May 18, 2004 to the applicable securities regulatory authorities or regulators under subsection 13.2(2) of National Instrument 51-102 Continuous Disclosure Obligations stating that it intends to rely on the Previous Decision to the same extent and on the same conditions as contained in the Previous Decision;
AND WHEREAS the Bank and the Corporation represented to the Decision Makers that:
1. Since the date of the Previous Decision, there have been no material changes to the representations of either the Corporation or the Bank contained in the Previous Decision.
2. The Previous Decision exempts the Corporation from the requirements to file its own interim financial statements and interim MD&A (collectively, the "Interim Filings") and (ii) its own AIF, annual financial statements and annual MD&A, as applicable (collectively, the "Annual Filings") and therefore, it would not be meaningful or relevant for the Corporation to file its own Certification Filings.
3. Because of the terms of securities publicly offered by the Corporation, and by virtue of certain agreements and covenants of the Bank in connection therewith, information regarding the affairs and financial condition of the Bank, as opposed to that of the Corporation, is meaningful to holders of such securities and it is appropriate that the Bank's Certification Filings be available to such securityholders of the Corporation in lieu of the Certification Filings of the Corporation.
AND WHEREAS under the System, this MRRS Decision Document evidences the decision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the Decision has been met;
THE DECISION of the Decision Makers under the Legislation is that the requirement contained in the Legislation:
(a) to file Annual Certificates with the Decision Makers under section 2.1 of MI 52-109; and
(b) to file Interim Certificates with the Decision Makers under section 3.1 of MI 52-109;
shall not apply to the Corporation for so long as:
(i) the Corporation is not required to, and does not, file its own Interim Filings and Annual Filings;
(ii) the Bank files with the Decision Makers, in electronic format under the Corporation's SEDAR profile, the following documents at the same time as such documents are required under the Legislation to be filed by the Bank:
a. Annual Filings of the Bank;
b. Interim Filings of the Bank;
c. Annual Certificates of the Bank; and
d. Interim Certificates of the Bank;
(iii) the Corporation qualifies for the relief contemplated by, and is in compliance with, the requirements and conditions set out in the Previous Decision;
and provided that if a material adverse change occurs in the affairs of the Corporation, this Decision shall expire 30 days after the date of such change.
June 15, 2004.
"Cameron McInnis"