National Policy 11-203

Process for Exemptive Relief Applications in Multiple Jurisdictions

PART 1    APPLICATION

1.1   Application

PART 2    DEFINITIONS

2.1      Definitions

2.2      Further definitions

PART 3    OVERVIEW, PRINCIPAL REGULATOR AND GENERAL GUIDELINES

3.1      Overview

3.2      Passport application

3.3      Dual application

3.4      Coordinated review application

3.5      Hybrid applications

3.6      Principal regulator

3.7      Discretionary change in principal regulator

3.8      General guidelines

PART 4    PRE-FILINGS

4.1      General

4.2      Procedure for passport application pre-filing

4.3      Procedure for dual application pre-filing

4.4      Procedure for coordinated review application pre-filing

4.5      Disclosure in related application

PART 5    FILING MATERIALS

5.1      Election to file under this policy and identification of principal regulator

5.2      Materials to be filed with application

5.3      Materials to be filed to make an exemption available in an additional passport jurisdiction under sections 4.7 and 4.8 of MI 11-102

5.4      Request for confidentiality

5.5      Filing

5.6      Incomplete or deficient material

5.7      Acknowledgment of receipt of filing

5.8      Withdrawal or abandonment of application

PART 6    REVIEW OF MATERIALS

6.1      Review of passport application

6.2      Review and processing of dual application or coordinated review application

PART 7    DECISION-MAKING PROCESS

7.1      Passport application

7.2      Dual application or coordinated review application

PART 8    DECISION

8.1      Effect of decision made under passport application

8.2      Effect of decision made under dual application

8.3      Effect of decision made under coordinated review application

8.4      Listing non-principal jurisdictions

8.5      Form of decision

8.6      Issuance of decision

PART 9    EFFECTIVE DATE AND TRANSITION

9.1      Effective date

9.2      Exemptive relief applications filed before March 17, 2008

9.3      Availability of passport for exemptions applied for before March 17, 2008

9.4      Revocation or variation of MRRS decisions made before March 17, 2008

Annex A

Form of decision for passport application

Annex B

Form of decision for a dual application

Annex C

Form of decision for coordinated review application

Annex D

Form of decision for hybrid application

National Policy 11-203

Process for Exemptive Relief Applications in Multiple Jurisdictions

PART 1    APPLICATION

1.1    Application – This policy describes the process for the filing and review of an application for exemptive relief in more than one Canadian jurisdiction.

PART 2    DEFINITIONS

2.1        Definitions – In this policy "AMF" means the regulator in Québec;

"application" means a request for exemptive relief other than a pre-filing or waiver application as those terms are defined in NP 11-202;

"coordinated review" means the review under this policy of a coordinated review application; "coordinated review application" means an application described in section 3.4 of this policy; "CP 11-102" means Companion Policy 11-102CP Passport System to MI 11-102;

"dual application" means an application described in section 3.3 of this policy; "dual review" means the review under this policy of a dual application;

"exemption" means any discretionary exemption to which Part 4 of MI 11-102 applies;

"exemptive relief" means any approval, decision, declaration, designation, determination, exemption, extension, order, ruling, permission, recognition, revocation, waiver or other relief sought under securities legislation or securities directions;

"filer" means

(a)   a person or company filing an  application, or

(b)   an agent of a person or company referred to in paragraph (a); "hybrid application" means an application comprised of both

(a)    a passport application or dual application, and

(b)   a coordinated review application;

"MI 11-102" means Multilateral Instrument 11-102 Passport System;

"notified passport jurisdiction" means a passport jurisdiction for which a filer gave the notice referred to in section 4.7(1)(c) of MI 11-102

"NP 11-202" means National Policy 11-202 Process for Prospectus Reviews in Multiple Jurisdictions;

"NP 11-204" means National Policy 11-204 Process for Registration in Multiple Jurisdictions;

"OSC" means the regulator in Ontario;

"passport application" means an application described in section 3.2 of this policy; "passport jurisdiction" means the jurisdiction of a passport regulator;

"passport regulator" means a regulator that has adopted MI 11-102;

"pre-filing" means a consultation with the principal regulator for an application, initiated before the filing of the application, regarding the interpretation of securities legislation or securities directions or their application to a particular transaction or matter or proposed transaction or matter; and

"regulator" means a securities regulatory authority or regulator.

2.2        Further definitions – Terms used in this policy that are defined in MI 11-102 or National Instrument 14-101 Definitions have the same meanings as in those instruments.

PART 3    OVERVIEW, PRINCIPAL REGULATOR AND GENERAL GUIDELINES

3.1        Overview

This policy applies to any application for exemptive relief in multiple jurisdictions. These are the possible types of applications:

(a)         The principal regulator is a passport regulator and the filer does not seek an exemption in Ontario. This is a "passport application."

(b)        The principal regulator is the OSC and the filer also seeks an exemption in a passport jurisdiction. This is also a "passport application."

(c)         The principal regulator is a passport regulator and the filer also seeks an exemption in Ontario. This is a "dual application."

(d)        An application for any type of exemptive relief not covered by Part 4 of MI 11-102. This is a "coordinated review application."

3.2        Passport application

(1)   If the principal regulator is a passport regulator and the filer does not seek an exemption in Ontario, the filer files the application only with, and pays fees only to, the principal regulator. Only the principal regulator reviews the application. The principal regulator’s decision to grant an exemption automatically results in an equivalent exemption in the notified passport jurisdictions.

(2)   If the principal regulator is the OSC and the filer also seeks an equivalent exemption in a passport jurisdiction, the filer files the application only with, and pays fees only to, the OSC. Only the OSC reviews the application. The OSC’s decision to grant the exemption automatically results in an equivalent exemption in the notified passport jurisdictions.

3.3        Dual application – If the principal regulator is a passport regulator and the filer also seeks an exemption in Ontario, the filer files the application with, and pays fees to, both the principal regulator and the OSC. The principal regulator reviews the application and the OSC, as a non-principal regulator, coordinates its review with the principal regulator. The principal regulator’s decision to grant the exemption automatically results in an equivalent exemption in the notified passport jurisdictions and, if the OSC has made the same decision as the principal regulator, evidences the decision of the OSC.

3.4        Coordinated review application – If the application is outside the scope of MI 11-102 (see section 4.1 of CP 11-102 for details on the types of applications that fall outside the scope of MI 11-102), the filer files the application and pays fees in each jurisdiction where the exemptive relief is required. The principal regulator reviews the application, and each non-principal regulator coordinates its review with the principal regulator.  The decision of the principal regulator to grant exemptive relief evidences the decision of each non-principal regulator that has made the same decision as the principal regulator.

3.5        Hybrid applications – The processes and outcomes applicable to a passport application, dual application or a coordinated review application under this policy also apply to a hybrid application. For a hybrid application, the filer should follow the processes for both a coordinated review application and either a passport application or dual application, as appropriate.

3.6        Principal regulator

(1)   For any application under this policy, the principal regulator is identified in the same manner as in sections 4.1 to 4.5 of MI 11-102. This section summarizes sections 4.1 to 4.5 of MI 11-102 and provides guidance on identifying the principal regulator for an application under this policy.

(2)   For the purpose of this section, a specified jurisdiction is one of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, New Brunswick or Nova Scotia.

(3)   Except as provided in subsections (4) to (9) and (11) of this section and in section 3.7 of this policy, the principal regulator for an exemptive relief application is

(a)          for an application made for an investment fund, the regulator of the jurisdiction in which the investment fund manager’s head office is located; or

(b)         for an application made for a person or company other than an investment fund, the regulator of the jurisdiction in which the person or company’s head office is located.

(4)   Except as provided in subsections (6) to (9) and (11) of this section and in section 3.7 of this policy, the principal regulator for an application for exemptive relief from a provision of securities legislation related to insider reporting is the regulator in the jurisdiction in which the head office of the reporting issuer, not the insider, is located.

(5)   Except as provided in subsections (6) to (9) and (11) of this section and in section 3.7 of this policy, the principal regulator for an application for exemptive relief from a provision of securities legislation related to take-over bids is the regulator in the jurisdiction in which the head office of the issuer whose securities are subject to the take-over bid, not the person or company that is making the take-over bid, is located.

(6)   Except as provided in subsections (7), (8), (9) and (11) of this section and section 3.7 of this policy, if the jurisdiction identified under subsection (3), (4) or (5) is not a specified jurisdiction, the principal regulator for the application is the regulator of the specified jurisdiction with which

(a)          in the case of an application for exemptive relief from a provision of securities legislation related to insider reporting, the reporting issuer has the most significant connection,

(b)         in the case of an application for exemptive relief from a provision of securities legislation related to take-over bids, the issuer whose securities are subject to the take-over bid has the most significant connection, or

(c)          in any other case, the person or company or, in the case of an investment fund, the investment fund manager, has the most significant connection.

(7)   Except as provided in subsections (8), (9) and (11) of this section and section 3.7 of this policy, if a firm or individual makes an application for exemptive relief from a requirement in Parts 3 and 12 of NI 31-103 or Part 2 of NI 33-109 in connection with an application for registration in the principal jurisdiction, the principal regulator for the exemptive relief application is the principal regulator as determined under section 3.6 of NP 11-204. Under section 3.6 of NP 11-204 the securities regulatory authority or regulator of any jurisdiction can be a principal regulator.

(8)   Except as provided in subsections (9) and (11) of this section, and section 3.7 of this policy, if a person or company is not seeking exemptive relief in the jurisdiction of the

principal regulator, as determined under subsections (3), (4), (5), (6) or (7), the principal regulator for the application is the regulator in the specified jurisdiction

(a)          in which the person or company is seeking exemptive relief, and

(b)         with which

(i)           in the case of an application for exemptive relief from a provision of securities legislation related to insider reporting, the reporting issuer has the most significant connection,

(ii)         in the case of an application for exemptive relief from a provision of securities legislation related to take-over bids, the issuer whose securities are subject to the take-over bid has the most significant connection, or

(iii)       in any other case, the person or company or, in the case of an investment fund, the investment fund manager, has the most significant connection.

(9)   Except as provided in subsection (11) of this section and section 3.7 of this policy, if at any one time a person or company is seeking more than one item of exemptive relief and not all of the exemptive relief is needed in the jurisdiction of the principal regulator, as determined under subsection (3), (4), (5), (6), (7) or (8), the person or company may make an application to the regulator in the specified jurisdiction

(a)          in which the person or company is seeking all of the exemptive relief, and

(b)         with which

(i)           in the case of an application for exemptive relief from a provision of securities legislation related to insider reporting, the reporting issuer has the most significant connection,

(ii)         in the case of an application for exemptive relief from a provision of securities legislation related to take-over bids, the issuer whose securities are subject to the take-over bid has the most significant connection, or

(iii)       in any other case, the person or company or, in the case of an investment fund, the investment fund manager, has the most significant connection.

That regulator will be the principal regulator for the application.

(10)   Except as provided in subsection (11) of this section, the factors a filer should consider in identifying the principal regulator for the application based on the most significant connection test are, in order of influential weight:

(a)         location of reporting issuer status or registration status,

(b)        location of management,

(c)         location of assets and operations,

(d)        location of majority of security holders or clients, and

(e)         location of trading market or quotation and trade reporting system in Canada.

(11)           In the case of an application for exemptive relief from a provision of Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets, the factors a filer should consider in identifying the principal regulator for the application are set out in Part 5 of Companion Policy 51-105CP.

3.7        Discretionary change in principal regulator

(1)   If the principal regulator identified under section 3.6 of this policy thinks it is not the appropriate principal regulator, it will first consult with the filer and the appropriate regulator and then give the filer a written notice of the new principal regulator and the reasons for the change.

(2)   A filer may request a discretionary change of principal regulator for an application if

(a)         the filer believes the principal regulator identified under section 3.6 of this policy is not the appropriate principal regulator,

(b)        the location of the head office changes over the course of the application,

(c)         the most significant connection to a specified jurisdiction changes over the course of the application, or

(d)        the filer withdraws its application in the principal jurisdiction because no exemptive relief is required in that jurisdiction.

(3)   Regulators do not anticipate changing a principal regulator except in exceptional circumstances.

(4)   A filer should submit a written request for a change in principal regulator to its current principal regulator and include the reasons for requesting the change.

3.8        General guidelines

(1)   A filer should identify the exemptive relief that is appropriate and necessary in the principal jurisdiction and each non-principal jurisdiction to which the filer applies or for which it gives notice under section 4.7(1)(c) of MI 11-102.

(2)   The terms, conditions, restrictions and requirements of a decision will reflect the securities legislation and securities directions of the principal jurisdiction.

(3)   A decision will generally provide exemptive relief for the entire transaction or matter that is the subject of the application to ensure the transaction or matter gets uniform treatment in all jurisdictions. This means that, if the transaction or matter is comprised of a series of trades, the decision will generally exempt all the trades in the series and the filer will not rely on statutory exemptions for some trades and on the decision for others.

(4)   The regulators are not prepared to extend the availability of a non-harmonized exemption set out in National Instrument 45-106 Prospectus Exemptions (NI 45-106) to a non-principal jurisdiction where the non-harmonized exemption is not available under that rule. If a filer makes a passport application or a dual application that would have that effect, the principal regulator will request that the filer provide a representation that no person or company will rely on the exemption in that non-principal jurisdiction. For example, jurisdictions have adopted two types of offering memorandum exemptions under NI 45-106. A principal regulator would not grant an exemption that would have the effect of allowing the use of a type of offering memorandum exemption that is not available under NI 45-106 in a non- principal jurisdiction, unless the filer gave a representation that no person or company would offer the securities relying on that type of offering memorandum exemption in the non- principal jurisdiction.

(5)   Regulators will generally send communications to filers by e-mail or facsimile.

PART 4    PRE-FILINGS

4.1        General

(1)   A filer should submit a pre-filing sufficiently in advance of an application to avoid any delays in the issuance of a decision on the application.

(2)   The principal regulator will treat the pre-filing as confidential except that it:

(a)         may provide copies or a description of the pre-filing to other regulators for discussion purposes if the pre-filing involves a novel and substantive issue or raises a novel policy concern, and

(b)        may have to release the pre-filing under freedom of information and protection of privacy legislation.

4.2        Procedure for passport application pre-filing – A filer should submit a pre-filing for a passport application by letter to the principal regulator and should

(a)         identify in the pre-filing the principal regulator for the application and each passport jurisdiction for which the filer intends to give the notice referred to in section 4.7(1)(c) of MI 11-102, and

(b)        submit the pre-filing to the principal regulator only.

4.3        Procedure for dual application pre-filing

(1)   A filer submitting a pre-filing for a dual application should identify in the pre-filing the principal regulator, each passport jurisdiction for which the filer intends to give the notice referred to in section 4.7(1)(c) of MI 11-102, and Ontario.

(2)   The filer should submit the pre-filing only to the principal regulator. If the pre-filing is routine, the filer will deal only with the principal regulator to resolve the pre-filing.

(3)   If the principal regulator determines that a pre-filing submitted as a routine pre-filing involves a novel and substantive issue or raises a novel policy concern, it will advise the filer and direct the filer to submit the pre-filing to the OSC.

(4)   If it is apparent to the filer that a pre-filing involves a novel and substantive issue or raises a novel policy concern, the filer may accelerate this process by submitting the pre- filing to both the principal regulator and the OSC.

(5)   If a pre-filing involves a novel and substantive issue or raises a novel policy concern, the principal regulator will arrange with the OSC to discuss it within seven business days, or as soon as practicable after the OSC receives the pre-filing.

4.4        Procedure for coordinated review application pre-filing

(1)   A filer submitting a pre-filing for a coordinated review application should identify in the pre-filing the principal regulator and all non-principal jurisdictions where the filer intends to file the application.

(2)   The filer should submit the pre-filing only to the principal regulator. If the pre-filing is routine, the filer will deal only with the principal regulator to resolve the pre-filing.

(3)   If the principal regulator determines that a pre-filing submitted as a routine pre-filing involves a novel and substantive issue or raises a novel policy concern, it will advise the filer and direct the filer to submit the pre-filing to each non-principal regulator.

(4)   If it is apparent to the filer that a pre-filing involves a novel and substantive issue or raises a novel policy concern, the filer may accelerate this process by submitting the pre-filing to the principal regulator and each non-principal regulator with whom the filer intends to file  the application.

(5)   If a pre-filing involves a novel and substantive issue or raises a novel policy concern, the principal regulator will arrange with the non-principal regulators to discuss the pre-filing within seven business days, or as soon as practicable after all non-principal regulators receive the pre-filing.

4.5        Disclosure in related application – The filer should include in the application that follows a pre-filing,

(a)         a description of the subject matter of the pre-filing and the approach taken by the principal regulator, and

(b)        any alternative approach proposed by a non-principal regulator that was involved in discussions and that disagreed with the principal regulator.

PART 5    FILING MATERIALS

5.1        Election to file under this policy and identification of principal regulator – In its application, the filer should indicate whether it is filing a passport application, dual application, coordinated review application or hybrid application under this policy and identify the principal regulator for the application. If submitting a hybrid application, the filer should indicate whether it includes a passport application or a dual application.

5.2        Materials to be filed with application

(1)   For a passport application, the filer should remit to the principal regulator the fees payable under the securities legislation of the principal regulator, and file the following materials with the principal regulator only:

(a)         a written application drafted in accordance with the procedures of the principal regulator as to format and content in which the filer:

(i)           states the basis for identifying the principal regulator under section 3.6 of this policy,

(ii)         identifies whether another application in connection with the same transaction or matter has been filed in one or more jurisdictions, the reasons for that application, and the principal regulator for that application,

(iii)       sets out, for any related pre-filing, the information referred to in section 4.5 of this policy,

(iv)       sets out, under separate headings, each provision of securities legislation listed in Appendix D of MI 11-102 below the name of the principal jurisdiction from which the filer and other relevant party seek an exemption,

(v)         gives notice of the non-principal passport jurisdictions for which section 4.7(1) of MI 11-102 is intended to be relied upon for each equivalent provision of the local jurisdiction,

(vi)       sets out any request for confidentiality,

(vii)     sets out references to previous decisions of the principal regulator or other regulators that would support granting the exemption, or indicates that the exemption sought is novel and has not been previously granted;

(viii)   includes a verification statement that authorizes the filing of the application and confirms the truth of the facts in the application; and

(ix)       states that the filer and other relevant party is not in default of securities legislation in any jurisdiction or, if the filer is in default, the nature of the default;

(b)        supporting materials; and

(c)         a draft form of decision with terms, conditions, restrictions or requirements, including

(i)           a representation stating that the filer and other relevant party are not in default of securities legislation in any jurisdiction or, if the filer or other relevant party is in default, the nature of the default; and

(ii)         resale restrictions, if applicable, based on the securities legislation and securities directions of the principal jurisdiction.

(2)   For a dual application, the filer should remit the fees payable under the securities legislation of the principal regulator and the OSC to each of them, as appropriate, and file the following materials with both the principal regulator and the OSC:

(a)         a written application drafted in accordance with the procedures of the principal regulator as to format and content in which the filer:

(i)           states the basis for identifying the principal regulator under section 3.6 of this policy,

(ii)         identifies whether another application in connection with the same transaction or matter has been filed in one or more jurisdictions, the reasons for the application, and the principal regulator for that application,

(iii)       sets out, for any related pre-filing, the information referred to in section 4.5 of this policy,

(iv)       sets out, under separate headings, each provision of securities legislation listed in Appendix D of MI 11-102 below the name of the principal jurisdiction from which the filer and other relevant party seek an exemption, the relevant provisions of securities legislation in Ontario and an analysis of any differences between the applicable provisions in the principal jurisdiction and Ontario,

(v)         gives notice of the non-principal passport jurisdictions for which section 4.7(1) of MI 11-102 is intended to be relied upon for each equivalent provision of the local jurisdiction,

(vi)       sets out any request for confidentiality,

(vii)     sets out any request to shorten the review period (see section 6.2(3) of this policy) or the opt-out period (see section 7.2(4) of this policy) and provides supporting reasons,

(viii)   sets out references to previous decisions of the principal regulator or other regulators that would support granting the exemption, or indicates that the exemption sought is novel and has not been previously granted;

(ix)       includes a verification statement that authorizes the filing of the application and confirms the truth of the facts in the application; and

(x)         states that the filer and any relevant party are not in default of securities legislation in any jurisdiction or, if the filer or other relevant party is in default, the nature of the default;

(b)        supporting materials; and

(c)         a draft form of decision with terms, conditions, restrictions or requirements, including

(i)           a representation stating that the filer and other relevant party are not in default of securities legislation in any jurisdiction or if the filer or relevant party is in default, the nature of the default; and

(ii)         resale restrictions, if applicable, based on the securities legislation and securities directions of the principal jurisdiction.

(3)   For a coordinated review application, the filer should remit the fees payable under the securities legislation of the principal regulator and each non-principal regulator from whom the filer or other relevant parties seek exemptive relief to each of them, as appropriate, and file the following materials with the principal regulator and each of the non-principal regulators:

(a)         a written application drafted in accordance with the procedures of the principal regulator as to format and content in which the filer:

(i)           states the basis for identifying the principal regulator section 3.6 of this policy,

(ii)         identifies whether another application in connection with the same transaction or matter has been filed in one or more jurisdictions, the reasons for the application, and the principal regulator for that application,

(iii)       sets out, for any related pre-filing, the information referred to in section 4.5 of this policy,

(iv)       sets out, under separate headings, each provision of securities legislation in the principal jurisdiction from which the filer and other relevant party are seeking exemptive relief, the relevant provisions of securities legislation in each non-principal jurisdiction, and an analysis of any differences between the applicable provisions in the principal jurisdiction and each non-principal jurisdiction,

(v)         sets out any request for confidentiality,

(vi)       sets out any request to shorten the review period (see section 6.2(3) of this policy) or the opt-out period (see section 7.2(4) of this policy) and provides supporting reasons,

(vii)     sets out references to previous decisions of the principal regulator or other regulators that would support granting the exemptive relief, or indicates that the exemptive relief sought is novel and has not been previously granted;

(viii)   includes a verification statement that authorizes the filing of the application and confirms the truth of the facts in the application; and

(ix)       states that the filer and any other relevant party are not in default of securities legislation in any jurisdiction or if the filer or other relevant party is in default, the nature of the default;

(b)        supporting materials; and

(c)         a draft form of decision with terms, conditions, restrictions or requirements, including

(i)           a representation stating that the filer and any other relevant party are not in default of securities legislation in any jurisdiction or if the filer or other relevant party is in default, the nature of the default; and

(ii)         resale restrictions, if applicable, based on the securities legislation and securities directions of the principal jurisdiction.

(4)   For a hybrid application, the filer should pay the fees, file the application with each regulator and, for each type of application, set out the exemption or exemptive relief sought and submit the relevant information and materials, all as described in this section.

(5)   A filer should file an application sufficiently in advance of any deadline to ensure that staff have a reasonable opportunity to complete the review and make recommendations for a decision.

(6)   A filer making a passport application or a dual application should identify in the application all the exemptions required and give the required notice for all the passport jurisdictions for which section 4.7(1) of MI 11-102 is intended to be relied upon. The notice given under subsection (1)(a)(v) or (2)(a)(v) above satisfies the notice requirement of section 4.7(1)(c) of MI 11-102.

(7)   A filer seeking exemptive relief in Québec should file a French language version of the draft decision when the AMF is acting as principal regulator.

5.3        Materials to be filed to make an exemption available in an additional passport jurisdiction under sections 4.7 and 4.8 of MI 11-102

(1)   Under section 4.7(1) of MI 11-102, an exemption from a provision of securities legislation listed in Appendix D of that Instrument granted by the principal regulator under a passport application or dual application can become available in a non-principal passport jurisdiction for which the filer did not give the notice referred to in section 5.2(1)(a)(v) or 5.2(2)(a)(v) of this policy in the initial application if certain conditions are met. One of the conditions is that the filer give the notice under section 4.7(1)(c) of MI 11-102 for the additional non-principal passport jurisdiction.

(2)   Under section 4.8(1) of MI 11-102, an exemption from a provision of securities legislation that is now listed in Appendix D of that Instrument and that was granted before March 17, 2008 by the regulator in a specified jurisdiction, as defined in that section, can also become available in a non-principal passport jurisdiction if certain conditions are met. One of the conditions is that the filer gives the notice under section 4.8(1)(c) of MI 11-102 for the non-principal passport jurisdiction. Under section 4.8(3), the filer is not required to give this notice if the exemption relates to a CD requirement, as defined in Multilateral Instrument 11-101 Principal Regulator System, that is now listed in Appendix D of MI 11- 102 and other conditions are met. For more guidance on section 4.8(1) of MI 11-102, refer to section 9.3 of this policy and section 4.5 of CP 11-102.

(3)   For greater certainty, a filer may not rely on section 4.7 or 4.8 of MI 11-102 to obtain an automatic exemption from a provision of Ontario’s securities legislation listed in Appendix D of MI 11-102. A filer may rely on section 4.7 and 4.8 of MI 11-102 only in a passport jurisdiction.

(4)   The filer should give the notice referred to in subsection (1) to the principal regulator for the initial application and the notice referred to in subsection (2) to the regulator that would be the principal regulator under Part 4 of MI 11-102 if an application were to be made under that Part at the time the notice is given. The notice should

(a)          list each relevant non-principal passport jurisdiction for which notice is given that section 4.7(1) or 4.8(1) of MI 11-102 is intended to be relied upon,

(b)        include the date of the decision of

(i)           the principal regulator for the initial application, if the notice is given under section 4.7(1)(c) of MI 11-102, or

(ii)         the regulator of the specified jurisdiction that granted the application, if the notice is given under section 4.8(1)(c) of MI 11-102,

(c)         include the citation for the regulator’s decision,

(d)        describe the exemption the regulator granted, and

(e)         confirm that the exemption is still in effect.

(5)   If an exemption sought in a passport application or a dual application is required in a non- principal jurisdiction at the time the filer files the application, but the filer does not give the notice required under section 4.7(1)(c) of MI 11-102 for that jurisdiction until after the principal regulator grants the exemption, the regulator of the non-principal passport jurisdiction will take appropriate action. This could include removing the exemption, in which case the filer would have an opportunity to be heard in that jurisdiction in appropriate circumstances.

(6)   The regulator that receives the notice referred to in subsection (1) or (2) will send a copy of the notice and its decision to the regulator in the relevant non-principal passport jurisdiction.

5.4        Request for confidentiality

(1)   A filer requesting that the regulators hold an application and supporting materials in confidence during the application review process should provide a substantive reason for the request in its application.

(2)   If a filer is requesting that the regulators hold the application, supporting materials, or decision in confidence after the effective date of the decision, the filer should describe the request for confidentiality separately in its application, and pay any required fee:

(a)         in the principal jurisdiction, if the filer is making a passport application,

(b)        in the principal jurisdiction and in Ontario, if the filer is making a dual application, or

(c)         in each jurisdiction, if the filer is making a coordinated review application.

(3)   Any request for confidentiality should explain why the request is reasonable in the circumstances and not prejudicial to the public interest and when any decision granting confidentiality could expire.

(4)   Communications on requests for confidentiality will normally take place by e-mail. If a filer is concerned with this practice, the filer may request in the application that all communications take place by facsimile or telephone.

5.5        Filing – A filer should send the application materials in paper together with the fees to

(a)         the principal regulator, in the case of a passport application,

(b)        the principal regulator and the OSC, in the case of a dual application, or

(c)         each regulator from which the filer seeks exemptive relief, in the case of a coordinated review application.

The filer should also provide an electronic copy of the application materials, including the draft decision document, by e-mail or on CD ROM. Filing the application concurrently in all required jurisdictions will make it easier for the principal regulator and non-principal regulators, if applicable, to process the application expeditiously. In British Columbia, an electronic filing system is available for filing and tracking exemptive relief applications.

Filers should file an application in British Columbia using that system instead of e-mail. Filers should file applications related to National Instrument 81-102 Investment Funds on SEDAR. Filers should file applications related to individual proficiency requirements in NI 31-103 on NRD.

Filers should send pre-filing and application materials by e-mail using the relevant address or addresses listed below:

British Columbia               www.bcsc.bc.ca (click on BCSC e-services and follow the steps) Alberta                                          legalapplications@seccom.ab.ca

Saskatchewan                   exemptions@gov.sk.ca

Manitoba                           exemptions.msc@gov.mb.ca

Ontario                              applications@osc.gov.on.ca

Québec                              Dispenses-Passeport@lautorite.qc.ca New Brunswick                                          Passport-passeport@nbsc-cvmnb.ca Nova Scotia                                          nsscexemptions@gov.ns.ca

Prince Edward Island       CCIS@gov.pe.ca Newfoundland and

Labrador                     securitiesexemptions@gov.nl.ca Yukon                                          Corporateaffairs@gov.yk.ca Northwest Territories                                          SecuritiesRegistry@gov.nt.ca Nunavut                                          legal.registries@gov.nu.ca

5.6        Incomplete or deficient material – If the filer’s materials are deficient or incomplete, the principal regulator may ask the filer to file an amended application. This will likely delay the review of the application.

5.7        Acknowledgment of receipt of filing

(1)   After the principal regulator receives a complete and adequate application, the principal regulator will send the filer an acknowledgment of receipt of the application. The principal regulator will send a copy of the acknowledgement to any other regulator with whom the filer has filed the application. The acknowledgement will identify the name, phone number, fax number and e-mail address of the individual reviewing the application.

(2)   For a dual application, coordinated review application or hybrid application, the principal regulator will tell the filer, in the acknowledgement, the end date of the review period identified in section 6.2(3) of this policy.

5.8        Withdrawal or abandonment of application

(1)   If a filer withdraws an application at any time during the process, the filer is responsible for notifying the principal regulator and any non-principal regulator with whom the filer filed the application and for providing an explanation of the withdrawal.

(2)   If at any time during the review process, the principal regulator determines that a filer has abandoned an application, the principal regulator will notify the filer that it will mark the application as "abandoned". In that case, the principal regulator will close the file without further notice to the filer unless the filer provides acceptable reasons not to close the file in writing within 10 business days. If the filer does not, the principal regulator will notify the filer and any non-principal regulator with whom the filer filed the application that the principal regulator has closed the file.

PART 6    REVIEW OF MATERIALS

6.1        Review of passport application

(1)   The principal regulator will review any passport application in accordance with its securities legislation and securities directions and based on its review procedures, analysis and considering previous decisions.

(2)   The filer will deal only with the principal regulator, who will provide comments to and receive responses from the filer.

6.2        Review and processing of dual application or coordinated review application

(1)   The principal regulator will review any dual application or coordinated review application in accordance with its securities legislation and securities directions, based on its review procedures, analysis and considering previous decisions. The principal regulator will consider any comments from a non-principal regulator with whom the filer filed the application. Please refer to section 5.2(2) of this policy for guidance on the non-principal regulator with whom a filer should file a dual application, and to section 5.2(3) for similar guidance for a coordinated review application.

(2)   The filer will generally deal only with the principal regulator, who will be responsible for providing comments to the filer once it has considered the comments from the non-principal regulators and completed its own review. However, in exceptional circumstances, the

principal regulator may refer the filer to a non-principal regulator with whom the filer has filed the application.

(3)   A non-principal regulator with whom the filer has filed the application will have seven business days from receiving the acknowledgement referred to in section 5.7(1) of this policy to review the application. In exceptional circumstances, if the filer filed the dual application or coordinated review application concurrently in the non-principal jurisdictions and shows that it is necessary and reasonable in the circumstances for the application to receive immediate attention, the principal regulator may abridge the review period. A non-principal regulator that disagrees with abridging the review period may notify the filer and the principal regulator and request the filer to withdraw the application in that jurisdiction. In that case, the application will proceed as a local application without the need to file a new application and pay any additional related fees.

(4)   Exceptional circumstances when the principal regulator may abridge the review period include:

(a)         where exemptive relief is sought for a contested take-over bid and delay would prejudice the filer’s position, and

(b)        other situations in which the filer is responding to a critical event beyond its control and could not have applied for the exemptive relief earlier.

(5)   Unless the filer provides compelling reasons as to why it did not start the application process sooner, the principal regulator will not consider the following circumstances as exceptional:

(a)         the mailing of a management information circular for a scheduled meeting of security holders to consider a transaction,

(b)        the filing of a prospectus where the receipt for the prospectus cannot evidence the exemptive relief,

(c)         the closing of a transaction,

(d)        the filing of a continuous disclosure document shortly before the date on which its filing is required, or

(e)         other situations in which the deadline was known before filing the application and the filer could have filed the application earlier.

While staff will attempt to accommodate transaction timing where possible, filers planning time-sensitive transactions should build sufficient regulatory approval time into their transaction schedules.

The fact that a filer may consider an application as routine is not a compelling argument for requesting an abridgement.

(6)   Filers should provide sufficient information in an application to enable staff to assess how quickly they should handle the application.  For example, if the filer has committed to take certain steps by a specific date and needs to have staff’s view or a decision by that date, the filer should explain why staff's view or the exemptive relief is required by the specific date and identify these time constraints in its application.

(7)   A non-principal regulator with whom the filer has filed the dual application or coordinated review application will advise the principal regulator, before the expiration of the review period, of any substantive issues that, if left unresolved, would cause staff to recommend that the non-principal regulator opt out of the review. The principal regulator may assume that a non-principal regulator does not have comments on the application if the principal regulator does not receive them within the review period.

(8)   A non-principal regulator with whom the filer has filed the dual application or coordinated review application will notify the filer and the principal regulator and request that the filer withdraw the application if staff of the non-principal regulator think that no exemptive relief is required under its securities legislation.

PART 7    DECISION-MAKING PROCESS

7.1        Passport application

(1)   After completing the review process and after considering the recommendation of its staff, the principal regulator will determine whether to grant or deny the exemption a filer sought in a passport application.

(2)   If the principal regulator is not prepared to grant the exemption a filer sought in its passport application based on the information before it, it will notify the filer accordingly.

(3)   If a filer receives a notice under subsection (2) and this process is available in the principal jurisdiction, the filer may request the opportunity to appear before, and make submissions to, the principal regulator.

7.2        Dual application or coordinated review application

(1)   After completing the review process and after considering the recommendation of its staff, the principal regulator will determine whether to grant or deny the exemption a filer sought in a dual application or the exemptive relief the filer sought in a coordinated review application and immediately circulate its decision to the non-principal regulators with whom the filer filed the application.

(2)   Each non-principal regulator with whom the filer filed the dual application or coordinated review application will have five business days from receipt of the principal regulator’s decision to confirm whether it has made the same decision and is opting in or is opting out of the dual review or coordinated review.

(3)   If the non-principal regulator is silent, the principal regulator will consider that the non- principal regulator has opted out.

(4)   If the filer shows that it is necessary and reasonable in the circumstances, the principal regulator may request, but cannot require, the non-principal regulators to abridge the opt-out period. In some circumstances, abridging the opt-out period may not be feasible. For example, in many jurisdictions, only a panel of the regulator that convenes according to a schedule can make some types of decisions.

(5)   The principal regulator will not send the filer a decision for a dual application or coordinated review application before the earlier of

(a)         the expiry of the opt-out period, or

(b)        receipt from a non-principal regulator with whom the filer filed the application of the confirmation referred to in subsection (2).

(6)   If the principal regulator is not prepared to grant the exemption a filer sought in its dual application or the exemptive relief the filer sought in its coordinated review application based on the information before it, it will notify the filer and all non-principal regulators with whom the filer filed the application.

(7)   If a filer receives a notice under subsection (6) and this process is available in the principal jurisdiction, the filer may request the opportunity to appear before, and make submissions to, the principal regulator. The principal regulator may hold a hearing on its own, or jointly or concurrently with the non-principal regulators with whom the filer filed the application. After the hearing, the principal regulator will send a copy of the decision to the filer and all non-principal regulators with whom the filer filed the application.

(8)   A non-principal regulator electing to opt out will notify the filer, the principal regulator and any other non-principal regulator with whom the filer filed the application and give its reasons for opting out. The filer may deal directly with the non-principal regulator to resolve outstanding issues and obtain a decision without having to file a new application or pay any additional related fees. If the filer and non-principal regulator resolve all outstanding issues, the non-principal regulator may opt back into the dual review or coordinated review by notifying the principal regulator and the other non-principal regulators with whom the filer filed the application within the opt-out period referred to in subsection (2).

PART 8    DECISION

8.1        Effect of decision made under passport application

(1)   The decision of the principal regulator under a passport application to grant an exemption from a provision of securities legislation listed below the name of the principal jurisdiction in Appendix D of MI 11-102 is the decision of the principal regulator. Under MI 11-102, a filer

is automatically exempt from the equivalent provision of each notified passport jurisdiction as a result of the principal regulator for the application granting the exemption.

(2)   Except in the circumstances described in section 5.3(1) or (2) of this policy, the exemption is effective in each notified passport jurisdiction on the date of the principal regulator’s decision (even if the regulator in the notified passport jurisdiction is closed on that date). In the circumstances described in section 5.3(1) of this policy, the exemption is effective in the relevant non-principal passport jurisdiction on the date the filer gives the notice under section 4.7(1)(c) or 4.8(1)(c) of MI 11-102 for that jurisdiction (even if the regulator in that jurisdiction is closed on that date).

8.2        Effect of decision made under dual application

(1)   The decision of the principal regulator under a dual application to grant an exemption from a provision of securities legislation listed below the name of the principal jurisdiction in Appendix D of MI 11-102 is the decision of the principal regulator. Under MI 11-102, a filer is automatically exempt from an equivalent provision of each notified passport jurisdiction as a result of the principal regulator for the application granting the exemption. The decision of the principal regulator under a dual application also evidences the OSC’s decision, if the OSC has confirmed that it has made the same decision as the principal regulator.

(2)   The principal regulator will not issue the decision until the earlier of

(a)         the date that the OSC confirms that it has made the same decision as the principal regulator, or

(b)        the date the opt-out period referred to in section 7.2(2) of this policy has expired.

8.3        Effect of decision made under coordinated review application

(1)   The decision of the principal regulator under a coordinated review application to grant exemptive relief from a provision of securities legislation in the principal jurisdiction is the decision of the principal regulator and evidences the decision of each non-principal regulator that has confirmed that it has made the same decision as the principal regulator.

(2)   The principal regulator will not issue the decision until the earlier of

(a)         the date that the principal regulator has received confirmation from each non- principal regulator that it has made the same decision as the principal regulator, or

(b)        the date the opt-out period referred to in section 7.2(2) of this policy has expired.

8.4        Listing non-principal jurisdictions

(1)   For convenience, the decision of the principal regulator on a passport application or a dual application will refer to the notified passport jurisdictions, but it is the filer’s responsibility to ensure that it gives the required notice for each jurisdiction for which section 4.7(1) of MI 11-102 is intended to be relied upon.

(2)   The decision of the principal regulator on a dual application or a coordinated review application will contain wording that makes it clear that the decision evidences and sets out the decision of each non-principal regulator that has made the same decision as the principal regulator.

(3)   For a coordinated review application for which Québec is not the principal jurisdiction, the AMF will issue a local decision concurrently with and in addition to the principal regulator’s decision. The AMF decision will contain the same terms and conditions as the principal regulator’s decision. No other local regulator will issue a local decision.

8.5        Form of decision

(1)         Except as described in subsection (2), the decision will be in the form set out in:

(a)         Annex A, for a passport application,

(b)        Annex B, for a dual application,

(c)         Annex C, for a coordinated review application, or

(d)        Annex D, for a hybrid application.

(2)   A principal regulator may issue a less formal decision where it is appropriate.

(3)   If the decision is to deny the exemptive relief, the decision will set out reasons.

8.6        Issuance of decision – The principal regulator will send the decision to the filer and to all non-principal regulators.

PART 9    EFFECTIVE DATE AND TRANSITION

9.1        Effective date

This policy comes into effect on March 17, 2008.

9.2        Exemptive relief applications filed before March 17, 2008

The process set out in National Policy 12-201 Mutual Reliance Review System for Exemptive Relief Applications (MRRS) will continue to apply to an exemptive relief application and any related pre-filing filed in multiple jurisdictions before March 17, 2008.

9.3        Availability of passport for exemptions applied for before March 17, 2008

(1)   Section 4.8(1) of MI 11-102 provides that an exemption from the equivalent provision is automatically available in the local jurisdiction if

(a)          an application was made in a specified jurisdiction before March 17, 2008 for an exemption from a provision of securities legislation that is now listed in Appendix D of MI 11-102,

(b)         the regulator in the specified jurisdiction granted the exemption before, on or after March 17, 2008, and

(c)          certain other conditions are met, including giving the required notice for the additional non-principal passport jurisdiction; refer to section 5.3 of this policy for information on where to give the required notice and what information the notice should contain.

(2)  A specified jurisdiction for purposes of section 4.8 of MI 11-102 is a principal jurisdiction under Multilateral Instrument 11-101 Principal Regulator System.  Therefore, section 4.8(1) applies to an exemption from a CD requirement, as defined in Multilateral Instrument 11-101 Principal Regulator System, which the principal regulator under that Instrument granted to a reporting issuer before March 17, 2008 if the exemption relates to a CD requirement that is now listed in Appendix D of MI 11-102. In this case, however, section 4.8(3) exempts a reporting issuer from having to give the notice required in section 4.8(1)(c). Refer to section 4.5 of the CP 11-102 for guidance on the effect of section 4.8 of MI 11-102.