Difference Capital Funding Inc.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Reporting issuer seeking relief so that it can continue to file financial statements in accordance with pre-changeover Canadian GAAP (in place of the required, IFRS) for periods relating to the Applicant's financial year beginning on January 1, 2011 and ending on December 31, 2011 and the Applicant's financial year beginning on January 1, 2012 and ending on December 31, 2012 and the Applicant's financial year beginning on January 1, 2013 and ending on December 31, 2013 (collectively, the "Applicant's Deferred Financial Years"). In particular, the Applicant is seeking relief from the requirements in Part 3 of National Instrument 52-107 that would apply to financial statements for periods relating to the Applicant's Deferred Financial Years. The Applicant is also seeking relief from the IFRS-related amendments to the continuous disclosure, prospectus, certification and audit committee rules (collectively, the "Rules") that came into force on January 1, 2011 and that would apply to periods relating to the Applicant's Deferred Financial Years. The Applicant is an "investment company" as defined in Accounting Guideline 18 Investment Companies (AcG-18) in Part V of the Handbook of the Canadian Institute of Chartered Accountants. At its meeting on February 29, 2012, the Canadian Accounting Standards Board decided that investment companies, as defined in and applying AcG-18, will only be required to adopt IFRS for annual periods beginning on or after January 1, 2014. Since Part 3 of National Instrument 52-107 and the IFRS-related amendments to the Rules do not contain a provision providing for a three-year deferral of the transition to IFRS for investment companies subject to NI 52-107 and the Rules, the Applicant has applied for the relief. Relief is granted subject to a number of conditions.
Applicable Legislative Provisions
National Instrument 52-107 Acceptable Accounting Principles and Auditing Standards, Parts 3 and 4 (NI 52-107).
National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102).
National Instrument 41-101 General Prospectus Requirements (NI 41-101).
National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101).
National Instrument 44-102 Shelf Distributions (NI 44-102).
National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings (NI 52-109).
National Instrument 52-110 Audit Committees (NI 52-110).
November 20, 2012
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO
(the "Jurisdiction")
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
DIFFERENCE CAPITAL FUNDING INC.
(the "Applicant")
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Applicant for a decision under the securities legislation of the Jurisdiction of the principal regulator for an exemption (the "Relief Sought") from:
(i) the requirements of Part 3 of National Instrument 52-107 -- Acceptable Accounting Principles and Auditing Standards ("NI 52-107") that apply to financial statements, financial information, operating statements and pro forma financial statements for periods relating to the Applicant's financial year beginning on January 1, 2011 and ending on December 31, 2011, the Applicant's financial year beginning on January 1, 2012 and ending on December 31, 2012 and the Applicant's financial year beginning on January 1, 2013 and ending on December 31, 2013 (collectively, the "Applicant"s Deferred Financial Years");
(ii) the amendments to National Instrument 51-102 -- Continuous Disclosure Obligations ("NI 51-102") related to International Financial Reporting Standards ("IFRS") that came into force on January 1, 2011 and that apply to documents required to be prepared, filed, delivered or sent under NI 51-102 for periods relating to the Applicant's Deferred Financial Years;
(iii) the IFRS-related amendments to National Instrument 41-101 -- General Prospectus Requirements ("NI 41-101") that came into force on January 1, 2011 and that apply to a preliminary prospectus, an amendment to a preliminary prospectus, a final prospectus or an amendment to a final prospectus of the Applicant which includes or incorporates by reference financial statements of the Applicant in respect of periods relating to the Applicant's Deferred Financial Years;
(iv) the IFRS-related amendments to National Instrument 44-101 -- Short Form Prospectus Distributions ("NI 44-101") that came into force on January 1, 2011 and that apply to a preliminary short form prospectus, an amendment to a preliminary short form prospectus, a final short form prospectus or an amendment to a final short form prospectus of the Applicant which includes or incorporates by reference financial statements of the Applicant in respect of periods relating to the Applicant's Deferred Financial Years;
(v) the IFRS-related amendments to National Instrument 44-102 -- Shelf Distributions ("NI 44-102") that came into force on January 1, 2011 and that apply to a preliminary base shelf prospectus, an amendment to a preliminary base shelf prospectus, a base shelf prospectus, an amendment to a base shelf prospectus or a shelf prospectus supplement of the Applicant which includes or incorporates by reference financial statements of the Applicant in respect of periods relating to the Applicant's Deferred Financial Years;
(vi) the IFRS-related amendments to National Instrument 52-109 -- Certification of Disclosure in Issuers' Annual and Interim Filings ("NI 52-109") that came into force on January 1, 2011 and that apply to annual filings and interim filings for periods relating to the Applicant's Deferred Financial Years; and
(vii) the IFRS-related amendments to National Instrument 52-110 -- Audit Committees ("NI 52-110") that came into force on January 1, 2011 and that apply to periods relating to the Applicant's Deferred Financial Years.
Under National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) The Ontario Securities Commission (the "OSC") is the principal jurisdiction for the application; and
(b) The Applicant has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System is intended to be relied upon in each of British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland (the "Passport Jurisdictions").
Interpretation
Terms defined in National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.
Representations
The decision is based on the following facts represented by the Applicant:
1. The Applicant is a corporation existing under the laws of Canada. The Applicant's head office is located at The Exchange Tower, 130 King Street West, Suite 2950, Toronto, Ontario M5X 1C7.
2. The Applicant is a reporting issuer in the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland.
3. The Applicant's authorized capital consists of an unlimited number of common shares (the "Common Shares") of which there are 116,031,945 issued and outstanding and an unlimited number of preferred shares, of which none have been issued or are outstanding. The Common Shares trade on the TSX Venture Exchange under the symbol "DCF".
4. The Applicant is a publicly listed investment company focused on creating shareholder value through strategic investment in, and advisory services for, growth companies.
5. The Applicant's financial year end is December 31.
6. The Applicant is an "investment company" as defined in Accounting Guideline 18 -- Investment Companies ("AcG-18") in Part V of the Handbook of the Canadian Institute of Chartered Accountants (the "Handbook"). The Applicant applies AcG-18 in the preparation of its financial statements in accordance with Part V of the Handbook -- Canadian GAAP for public enterprises that is the pre-changeover accounting standards ("pre-changeover Canadian GAAP").
7. The Applicant is not an investment fund as that term is defined in the Securities Act (Ontario).
8. As part of the changeover to IFRS in Canada, the Canadian Accounting Standards Board ("AcSB") has incorporated IFRS into the Handbook as Canadian GAAP for publicly accountable enterprises. As a result, the Handbook contains two sets of standards for public companies:
(a) Part I of the Handbook -- Canadian GAAP applicable to publicly accountable enterprises that applies for financial years beginning on or after January 1, 2011, and
(b) Part V of the Handbook -- pre-changeover Canadian GAAP.
9. On October 1, 2010, the AcSB published amendments to Part I of the Handbook that provided a one-year deferral of the transition to IFRS for investment companies. The amendments required investment companies, as defined in and applying AcG-18, to adopt IFRS for annual periods beginning on or after January 1, 2012. Subsequently, at its meeting on January 12, 2011, the AcSB decided to extend the deferral for an additional year and in March 2011, issued amendments to Part I of the Handbook so that investment companies, as defined in and applying AcG-18, would only be required to adopt IFRS for annual periods beginning on or after January 1, 2013. On February 29, 2012, the deferral was extended for a third time by amendments to Part I of the Handbook issued by the AcSB requiring investment companies, as defined in and applying AcG-18, to adopt IFRS for annual periods beginning on or after January 1, 2014.
10. As part of the changeover to IFRS, NI 52-107 was repealed and replaced effective January 1, 2011. In the new version of NI 52-107, (a) Part 3 contains requirements based on IFRS and applies to financial statements, financial information, operating statements and pro forma financial statements for periods relating to financial years beginning on or after January 1, 2011, and (b) Part 4 contains requirements based on pre-changeover Canadian GAAP and applies to financial statements, financial information, operating statements and pro forma financial statements for periods relating to financial years beginning before January 1, 2011.
11. As part of the changeover to IFRS, IFRS-related amendments were made to NI 51-102, NI 41-101, NI 44-101, NI 44-102, NI 52-109 and NI 52-110 (collectively, the "Rules") and these amendments came into force on January 1, 2011. Among other things, the amendments replace pre-changeover Canadian GAAP terms and phrases with IFRS terms and phrases and contain IFRS-specific requirements. The amendment instruments for the Rules contain transition provisions that provide that the IFRS-related amendments only apply to documents required to be filed under the Rules for periods relating to financial years beginning on or after January 1, 2011. Therefore, during the IFRS transition period, (a) issuers filing financial statements prepared in accordance with pre-changeover Canadian GAAP will be required to comply with the versions of the Rules that contain pre-changeover Canadian GAAP terms and phrases, and (b) issuers filing financial statements that comply with IFRS will be required to comply with the versions of the Rules that contain IFRS terms and phrases and IFRS-specific requirements.
12. On October 8, 2010, the Canadian Securities Administrators ("CSA") published CSA Staff Notice 81-320 -- Update on International Financial Reporting Standards for Investment Funds, as revised on March 23, 2011 and March 30, 2012, which indicated that, given the October 1, 2010, March 2011 and February 29, 2012 amendments to the Handbook providing for a deferral of the transition to IFRS for investment companies, the CSA would defer finalizing IFRS-related amendments to the rules related to investment funds, with the stated goal of having the necessary IFRS-related amendments for investment funds in force by January 1, 2014.
13. NI 52-107 and the Rules apply to the Applicant. Since Part 3 of NI 52-107 and the IFRS-related amendments to the Rules do not have a provision providing for a three-year deferral of the transition to IFRS for investment companies subject to NI 52-107 and the Rules, the Applicant has applied for the Relief Sought.
14. During the Applicant's Deferred Financial Years, the Applicant will comply with section 1.13 of Form 51-102F1 -- Management's Discussion & Analysis ("MD&A") by providing an updated discussion of the Applicant's preparations for changeover to IFRS in its annual and interim MD&A. In particular, the Applicant will discuss the expected effect on the financial statements, or state that the effect cannot be reasonably estimated.
15. The Applicant's interim financial reports for periods ending March 31, 2011 through to June 2012 (the "Prior Interim Financial Reports") were not prepared in accordance with IAS 34 Interim Financial Reporting (the "IAS 34") pursuant to Part 3 of NI 52-107.
16. The Applicant's annual financial statements for the year ending December 31, 2011 (the "Prior Annual Financial Statements") were not prepared in accordance with IFRS pursuant to Part 3 of NI 52-107.
17. At the time the Applicant filed the Prior Interim Financial Reports and the Prior Annual Financial Statements, it believed that the CICA's deferral of IFRS for companies qualifying to apply AcG-18 was accepted by the CSA for documents filed under the Rules. Upon further review of the Rules, the Applicant acknowledges that it should have filed for the Relief Sought prior to the filing of the Prior Interim Financial Reports and the Prior Annual Financial Statements.
18. The Applicant acknowledges that if the Exemption Sought is granted, the Applicant:
(a) will be subject to Part 3 of NI 52-107 and the IFRS-related amendments to the Rules for periods relating to financial years beginning on or after January 1, 2014, and
(b) will not have the benefit of the 30 day extension to the deadline of filing the first interim financial report in the year of adopting IFRS in respect of an interim period beginning on or after January 1, 2011, as set out in the IFRS-related amendments to NI 51-102, since that extension does not apply if the first interim financial report is in respect of an interim period ending after March 30, 2012.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Relief Sought is granted, provided that:
(i) the Applicant continues to be an investment company, as defined in and applying AcG-18;
(ii) the Applicant provides the communication as described and in the manner set out in paragraph 14 above;
(iii) the Applicant complies with the requirements in Part 4 of NI 52-107 for all financial statements (including interim financial statements), financial information, operating statements and pro forma financial statements for periods relating to the Applicant's Deferred Financial Years, as if the expression "January 1, 2011" in subsection 4.1(2) were read as "January 1, 2014";
(iv) the Applicant complies with the version of NI 51-102 that was in effect on December 31, 2010 (together with any amendments to NI 51-102 that are not related to IFRS and that came into force after January 1, 2011) for all documents required to be prepared, filed, delivered, or sent under NI 51-102 for periods relating to the Applicant's Deferred Financial Years;
(v) the Applicant complies with the version of NI 41-101 that was in effect on December 31, 2010 (together with any amendments to NI 41-101 that are not related to IFRS and that came into effect after January 1, 2011) for any preliminary prospectus, amendment to a preliminary prospectus, final prospectus or amendment to a final prospectus of the Applicant which includes or incorporates by reference financial statements of the Applicant in respect of periods relating to the Applicant's Deferred Financial Years;
(vi) the Applicant complies with the version of NI 44-101 that was in effect on December 31, 2010 (together with any amendments to NI 44-101 that are not related to IFRS and that came into effect after January 1, 2011) for any preliminary short form prospectus, amendment to a preliminary short form prospectus, final short form prospectus or amendment to a final short form prospectus of the Applicant which includes or incorporates by reference financial statements of the Applicant in respect of periods relating to the Applicant's Deferred Financial Years;
(vii) the Applicant complies with the version of NI 44-102 that was in effect on December 31, 2010 (together with any amendments to NI 44-102 that are not related to IFRS and that came into effect after January 1, 2011) for any preliminary base shelf prospectus, amendment to a preliminary base shelf prospectus, base shelf prospectus, amendment to a base shelf prospectus or shelf prospectus supplement of the Applicant which includes or incorporates by reference financial statements of the Applicant in respect of periods relating to the Applicant's Deferred Financial Years;
(viii) the Applicant complies with the version of NI 52-109 that was in effect on December 31, 2010 (together with any amendments to NI 52-109 that are not related to IFRS and that came into effect after January 1, 2011) for all annual filings and interim filings for periods relating to the Applicant's Deferred Financial Years;
(ix) the Applicant complies with the version of NI 52-110 that was in effect on December 31, 2010 (together with any amendments to NI 52-110 that are not related to IFRS and that came into effect after January 1, 2011) for periods relating to the Applicant's Deferred Financial Years;
(x) if, notwithstanding this order, the Applicant decides not to rely on the Relief Sought and files an interim financial report prepared in accordance with IAS 34 for an interim period in a deferred financial year, the Applicant must, at the same time:
(a) restate, in accordance with IAS 34, any interim financial statements for any previous interim period in the same deferred financial year (each, a "Previous Interim Period") that were originally prepared in accordance with pre-changeover Canadian GAAP and filed pursuant to this order, and
(b) file a restated interim financial report prepared in accordance with IAS 34 for each Previous Interim Period, together with corresponding restated interim MD&A and certificates required by NI 52-109. For greater certainty, any restated interim financial report for a Previous Interim Period must comply with applicable securities legislation (including Part 3 of NI 52-107 and the amendments to Part 4 of NI 51-102 that came into force on January 1, 2011) and any restated interim financial report for the first interim period in the deferred financial year must include the opening IFRS statement of financial position at the date of transition to IFRS; and
(xi) if, notwithstanding this order, the Applicant decides not to rely on the Relief Sought and files annual financial statements prepared in accordance with IFRS for a deferred financial year, the Applicant must, at the same time (unless previously done pursuant to paragraph (x) immediately above):
(a) restate, in accordance with IAS 34, any interim financial statements for any Previous Interim Period that were originally prepared in accordance with pre-changeover Canadian GAAP and filed pursuant to this order, and
(b) file a restated interim financial report prepared in accordance with IAS 34 for each Previous Interim Period, together with corresponding restated interim MD&A and certificates required by NI 52-109. For greater certainty, any restated interim financial report for a Previous Interim Period must comply with applicable securities legislation (including Part 3 of NI 52-107 and the amendments to Part 4 of NI 51-102 that came into force on January 1, 2011) and any restated interim financial report for the first interim period in the deferred financial year must include the opening IFRS statement of financial position at the date of transition to IFRS.