Scotia Capital Inc. et al. - MRRS Decision

Headnote

Mutual Reliance Review System for Exemptive Relief Applications - Issuer is a "connected issuer" in respect of the Filers- Filers exempt from requirement in the Legislation that an independent underwriter underwrite a portion of thedistribution at least equal to that underwritten by non-independent underwriters subject to certain conditions.

Applicable Ontario Regulations

Regulation made under the Securities Act, R.R.O. 1990, Reg. 1015, as am., ss. 219(1), 224(1)(b), 233, Part XIII.

Applicable Ontario Rules

Proposed Multi-Jurisdictional Instrument 33-105 Underwriting Conflicts (1998), 21 OSCB 781.

IN THE MATTER OF

THE SECURITIES LEGISLATION

OF ONTARIO AND QUÉBEC

AND

IN THE MATTER OF

THE MUTUAL RELIANCE REVIEW SYSTEM

FOR EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF

SCOTIA CAPITAL INC.

AND TD SECURITIES INC.

AND

IN THE MATTER OF

ACS FREEZERS INCOME TRUST

MRRS DECISION DOCUMENT

WHEREAS the securities regulatory authority or regulator (the "Decision Maker") in each of Ontario and Québec(the "Jurisdictions") has received an application from Scotia Capital Inc. ("SCI") and TD Securities Inc. ("TDSI" andtogether with SCI, the "Filers") for a decision pursuant to the securities legislation of the Jurisdictions (the "Legislation")that the requirement (the "Independent Underwriter Requirement") contained in the Legislation which restricts a registrantfrom acting as an underwriter in connection with a distribution of securities by an issuer made by means of a prospectus,where the issuer is a connected issuer (or the equivalent) of the registrant unless a portion of the distribution at leastequal to that underwritten by non-independent underwriters is underwritten by an independent underwriter shall not applyto the Filers in respect of a proposed distribution (the "Offering") of trust units (the "Offered Securities") of ACS FreezersIncome Trust (the "Issuer") pursuant to a short-form prospectus (the "Prospectus");

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 the Filers have represented to the Decision Makers that:

1. The Issuer is a reporting issuer under the Legislation of each Jurisdiction and is not in default of anyrequirements of the Legislation.

2. The Trust is a special purpose trust the activities of which are limited specifically to investing in securities issuedby Atlas Cold Storage Holdings Inc., a corporation involved in providing public refrigerated warehouse services.

3. The trust units of the Issuer are listed on The Toronto Stock Exchange.

4. The head office of the lead underwriter for the Offering is in Toronto, Ontario.

5. The Issuer has filed a preliminary short-form prospectus dated February 19, 2001 (the "PreliminaryProspectus") in the Jurisdictions.

6. The Offered Securities will be offered by BMO Nesbitt Burns Inc. (the "Lead Underwriter"), SCI, TDSI, RBCDominion Securities Inc. , National Bank Financial Inc., HSBC Securities (Canada) Inc. and ThomsonKernaghan & Co. Limited (collectively, the "Underwriters").

7. The proportionate share of the Offering to be underwritten by each of the Underwriters is as follows:

8. Each of BMO Nesbitt Burns Inc., RBC Dominion Securities Inc., National Bank Financial Inc., HSBC Securities(Canada) Inc. and Thomson Kernaghan & Co. Limited (the "Independent Underwriters") is an independentunderwriter as defined in draft Multi-Jurisdictional Instrument 33-105 Underwriting Conflicts (the "ProposedInstrument") with respect to the Offering.

9. The Toronto-Dominion Bank (the "TD Bank") is the owner of approximately 17% of the outstanding trust unitsof the Issuer on a fully-diluted basis (approximately 22% on a partially-diluted basis). It is anticipated thatcontemporaneously with the Offering, TD Bank or an affiliated entity thereof will subscribe for additional trustunits of the Issuer in connection with the exercise of certain pre-emptive rights provided in existing contractualarrangements between TD Bank, the Issuer and certain other securityholders of the Issuer or its subsidiaries.

10. The Bank of Nova Scotia ("BNS") is currently a lender to certain operating subsidiaries of the Issuer. All of thenet proceeds of the Offering and of the concurrent sale of trust units to TD Bank and an additionalsecurityholder of a subsidiary of the Issuer (as described in the Preliminary Prospectus) will be used to reducethe outstanding indebtedness of such subsidiaries to BNS.

11. By virtue of the relationships described above, the Issuer may, in connection with the Offering, be considereda connected issuer (or the equivalent) of each of the Filers.

12. The nature and details of the relationships between the Issuer and the Filers will be described in theProspectus. The Prospectus will contain the information specified in Appendix "C" of the Proposed Instrument.

13. The decision to issue the Offered Securities, including the determination of the terms of such distribution, hasbeen made through negotiations between the Issuer and the Underwriters, particularly the Lead Underwriter.

14. The Lead Underwriter will underwrite at least 20% of the Offering and the Independent Underwriters as a groupwill underwrite 62% of the Offering. The Prospectus will identify the Independent Underwriters and disclose therole of the Independent Underwriters in the structuring and pricing of the Offering and in the due diligenceactivities performed by the Underwriters.

15. The certificate in the Preliminary Prospectus has been and the certificate in the Prospectus will be signed bythe Underwriters, including each of the Independent Underwriters.

AND WHEREAS pursuant to the System, this MRRS Decision Document evidences the decision of eachDecision Maker (the "Decision");

AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that providesthe Decision Maker with the jurisdiction to make the Decision has been met;

THE DECISION of the Decision Makers, under the Legislation, is that the Independent Underwriter Requirementshall not apply to the Filers in connection with the Offering provided that:

i. the Independent Underwriters participate in the Offering as stated in paragraph 14 above;

ii. the Prospectus contains the disclosure stated in paragraphs 12 and 14 above; and

iii. the relationships between the Issuer and the Filers are disclosed in the Prospectus.

February 27, 2001.

"J.A. Geller"       "Theresa McLeod"