Canada Life Financial Corporation et al. - 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 capital trust sponsored by an insurance company, subject to specified conditions, where the trust had previously 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,
NOVA SCOTIA, NEWFOUNDLAND AND LABRADOR,
THE NORTHWEST TERRITORIES AND NUNAVUT
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
CANADA LIFE FINANCIAL CORPORATION
AND
IN THE MATTER OF
THE CANADA LIFE ASSURANCE COMPANY
AND
IN THE MATTER OF
CANADA LIFE CAPITAL TRUST
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision Maker", and collectively the "Decision Makers") in each of Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, Newfoundland and Labrador, the Northwest Territories and Nunavut (the "Jurisdictions") has received an application from Canada Life Financial Corporation ("CLF"), The Canada Life Assurance Company ("CLA") and Canada Life Capital Trust (the "Trust") 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 Trust, 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 ("MRRS") decision document dated May 14, 2002 (the "Previous Decision"), the Trust is exempted, on certain terms and conditions, from the requirements of the securities legislation in the jurisdictions of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia and Newfoundland and Labrador (the local securities regulatory authorities or regulators in such jurisdictions, collectively, the "Previous Decision Makers") concerning the preparation, filing and delivery of (i) interim and annual financial statements with the Previous Decision Makers; (ii) an annual filing with the Previous Decision Makers in lieu of filing an information circular, where applicable; (iii) an annual report and an information circular with the Decision Maker in Quebec and delivery of such report or information circular to the security holders of the Trust resident in Quebec; and (iv) an annual information form ("AIF") and management's discussion and analysis ("MD&A") with the Decision Makers in Ontario, Quebec and Saskatchewan;
AND WHEREAS the Trust will file a notice with the applicable securities regulatory authorities or regulators under section 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 CLF, CLA and the Trust represented to the Decision Makers that:
CLF
1. CLF was incorporated under the Insurance Companies Act (the "ICA"), is a reporting issuer, or the equivalent, in each of the provinces and territories of Canada that provides for a reporting issuer regime and to the best of its knowledge is not in default of any applicable requirements under the securities legislation thereunder.
CLA
2. CLA is a Canadian insurance company incorporated under the ICA, is a reporting issuer, or the equivalent, in each of the provinces and territories of Canada that provides for a reporting issuer regime and to the best of its knowledge is not in default of any applicable requirements under the securities legislation thereunder.
Canada Life Capital Trust
3. The Trust is an open-end trust established under the laws of the Province of Ontario by The Canada Trust Company ("Trustee"), as trustee, pursuant to a declaration of trust made as of February 6, 2002, (the "Declaration of Trust").
4. The beneficial interests of the Trust are divided into two classes of units, issuable in series, designated as Canada Life Capital Securities ("CLiCS") and Special Trust Securities ("Special Trust Securities" and, collectively with CLiCS, "Trust Securities"). The Special Trust Securities are held in their entirety by CLA.
5. The Trust was established solely for the purpose of effecting offerings of securities in order to provide CLA (and, indirectly, CLF) with a cost effective means of raising capital for Canadian insurance company regulatory purposes. The Trust does not and will not carry on any operating activity other than in connection with those offerings.
CLiCS
6. The Trust issued two series of CLiCS, CLiCS - Series A and CLiCS - Series B under a prospectus dated March 7, 2002 (the "Prospectus"). The Trust is a reporting issuer, or the equivalent, in each of the provinces and territories of Canada that provides for a reporting issuer regime and is not, to its knowledge, in default of any applicable requirements under the securities legislation thereunder.
7. The Trust also issued 1,000 Special Trust Securities to CLA in connection with the offering of CLiCS.
8. The business objective of the Trust is to acquire and hold debentures, issued by CLA, which generate income for distribution to holders of the Trust Securities. The Trust currently holds a senior debenture issued by CLA in respect of the CLiCS - Series A and a senior debenture issued by CLA in respect of the CLiCS - Series B.
9. Except to the extent that distributions are payable to CLiCS holders and, other than in the event of termination of the Trust (as set forth in the Declaration of Trust), CLiCS holders have no claim or entitlement to the income of the Trust or the assets held by the Trust.
10. Because of the terms of the Trust, the return to a CLiCS holder depends upon the financial condition of CLF and not that of the Trust.
11. The Certification Filings are intended to improve the quality and reliability of (i) an issuer's interim financial statements and interim MD&A (collectively, the "Interim Filings") and (ii) an issuer's AIF, annual financial statements and annual MD&A (collectively, the "Annual Filings").
12. The Previous Decision exempts the Trust from making its own Interim and Annual Filings, provided that CLF makes its Interim and Annual Filings on the Trust's SEDAR profile, and therefore, it would not be meaningful or relevant for the Trust to have to make its own Certification Filings.
13. Investors in CLiCS are ultimately concerned about the affairs and financial performance of CLF, as opposed to that of the Trust itself, and therefore, it is appropriate that CLF's Certification Filings be available to them on the same basis as the Interim and Annual Filings of CLF.
AND WHEREAS pursuant to 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 Trust for so long as:
(i) the Trust does not file its own Interim Filings and Annual Filings and CLF files its Interim Filings and Annual Filings on the Trust's SEDAR profile in accordance with the Previous Decision;
(ii) CLF files with the Decision Makers, in electronic format under the Trust's SEDAR profile, the documents listed in clauses (a) and (b) above of this Decision, at the same time as they are required under the Legislation to be filed by CLF;
(iii) CLF and CLA remain reporting issuers, or the equivalent, under the Legislation;
(iv) all outstanding securities of the Trust are either CLiCS or Special Trust Securities;
(v) the rights and obligations of additional series of Canada Life Capital Trust Securities are the same in all material respects as the rights and obligations of the holders of the CLiCS at the date hereof;
(vi) CLA or its affiliates are the beneficial owners of all Special Trust Securities and CFL or its affiliates are the beneficial owners of all the issued and outstanding voting shares of CLA;
(vii) the Trust pays all applicable filing fees that would otherwise be payable by the Trust in connection with the filing of the documents referred to in clauses (a) and (b) above of this Decision;
and provided that if a material adverse change occurs in the affairs of the Trust, this Decision shall expire 30 days after the date of such change.
May 28, 2004.
"Erez Blumberger"