Canada: Capital Markets Report - July 1-15, 2014

FROM THE REGULATORS

NEWS AND NOTICES

Applications for Recognition of Aequitas Innovations Inc. and Aequitas Neo Exchange Inc. as an Exchange

By: Alexis Bowie, Anita Kim, Jamie Litchen and Joel McElravy

Aequitas Innovations Inc. ("Aequitas"), a holding company owned by Barclays Corporation Limited, BCE Inc., CI Investments Inc., IGM Financial Inc., ITG Canada Inc., Omers OCM Investments II Inc., PSP Public Markets Inc., RBC Dominion Securities Inc., and Brilliant Orange Holdings Ltd. and Aequitas Neo Exchange Inc. (the "Aequitas Exchange" and together with Aequitas, the "Applicants"), a wholly owned subsidiary of Aequitas, have each applied to the Ontario Securities Commission for recognition as an exchange pursuant to section 21 of the Securities Act (Ontario). The Aequitas Exchange is proposing to operate an electronic, automated exchange to trade in securities of certain qualified issuers listed both on the Aequitas Exchange as well as other recognized exchanges.

The OSC is seeking public comment on the Applicants' application for recognition, the proposed listing manual and forms, the proposed trading policies, the proposed member agreement and information form, the proposed market maker application form and agreement and a draft recognition order. The comment period will close on August 26, 2014.

The complete applications and related materials are available here.

CSA Publishes Final Amendments to NI 52-108 Auditor Oversight

By: Alexis Bowie, Anita Kim, Jamie Litchen and Joel McElravy

On July 17, 2014, the Canadian Securities Administrators published final amendments to NI 52-108 Auditor Oversight (and related companion policy). The new NI 52-108 changes the requirements for when public accounting firms must notify securities regulators about certain types of remedial actions imposed by the Canadian Public Accountability Board ("CPAB"). The main purpose of NI 52-108 is to ensure the integrity of financial reporting by public companies by promoting high quality, independent auditing.

In connection with this change, the CSA is also making amendments to:

• NI 41-101 General Prospectus Requirements – requiring additional disclosure in a prospectus when an auditor of any included financial statements was not subject to CPAB oversight;
• NI 51-102 Continuous Disclosure Obligations (and related companion policy) – reducing the filing period for a change of auditor notice and requiring predecessor and successor auditors to notify the regulator if the reporting issuer does not file a change of auditor notice required by NI 51-102; and
• NI 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (and related companion policy) - requiring foreign issuers to comply with NI 52-108.

All of these changes have been adopted or are expected to be adopted by each member of the CSA and will come into force on September 30, 2014, provided all necessary ministerial approvals are obtained.

For additional information, the full text of the CSA notice and amendments is available here.

CSA Staff Notice – 51-341 Continuous Disclosure Review Program Activities for the Fiscal Year Ended March 31, 2014

By: Alexis Bowie, Anita Kim, Jamie Litchen and Joel McElravy

The Canadian Securities Administrators has issued a notice with the results of the reviews conducted by the CSA within the scope of their Continuous Disclosure ("CD") Review Program. The program was established to review the compliance of CD documents of reporting issuers to ensure that they are reliable and accurate as the CSA seeks to ensure that Canadian investors receive high quality disclosure from reporting issuers.

The notice summarizes the results of the CD Review Program for the fiscal year ended March 31, 2014. In order to raise awareness on the importance of filing compliant CD documents, the notice highlights certain areas where common deficiencies were noted. The CSA also provides examples to help reporting issuers address these common deficiencies in the following areas: financial statements, management's discussion and analysis and other regulatory disclosure deficiencies. Among the key compliance issues noted by the CSA and which required prospective changes and/or re-filing include: Further information on the CD Review Program is available here.

• Financial statement measurement and disclosure, which may include going concern, accounting policies, critical judgements, sources of estimation uncertainty and fair value measurement;
• MD&A compliance with Form 51-102F1 of NI 51-102 Continuous Disclosure Obligations, which may include non-GAAP measures, forward looking information, discussion of operations, liquidity, and related party transactions;
• Mineral project disclosure compliance with NI 43-101 Standards of Disclosure for Mineral Projects, which include key assumptions, parameters and methods established for projects, social or community related requirements for properties, the status of negotiations or agreements with local communities and the context for capital and operating cost estimates; and
• Executive compensation disclosure compliance with Form 51-102F6 Statement of Executive Compensation, particularly the compensation discussion and analysis section.

Further information on the CD Review Program is available here.

LEGAL BRIEFS AND COMMENTARY

Updates and commentary from Canada and around the world.

Clarification on Insider Trading Provided by ASC

By: Greg Hogan

The Alberta Securities Commission recently held that for insider trading liability to be found, evidence of knowledge of actual undisclosed material information needs to be shown, not just suspiciously timed trading based on guesses as to what an issuer was going to do. The trading (which was conducted by the insider's spouse) in question was in shares of Provident Energy Ltd. by an employee of Pembina Pipeline Corporation in advance of Pembina announcing that it was acquiring Provident. The trading was based on speculation by the insider that Pembina would be making an acquisition of a company with natural gas liquids ("NGL") operations in Alberta. Staff of the ASC based their allegations on circumstantial evidence, with their case resting "on whether inferences may be appropriately drawn from other facts established by evidence." Staff could not show any direct evidence that the insider had actual knowledge of the transaction prior to the purchase of the Provident shares. Staff relied on this statement of the Ontario Securities Commission in an insider trading case: "Knowledge of an undisclosed material fact may be properly inferred based on circumstantial evidence that includes proof of the ability and opportunity to acquire the information combined with evidence of well-timed, highly uncharacteristic, risky and highly profitable trades." Staff asserted that the trade was uncharacteristic and highly profitable, its timing was suspicious and the stated rationale for it was not credible. Further, subsequent conduct demonstrated consciousness of guilt. The ASC found, on a balance of probabilities, that on the day of the purchase, the insider had a reasonable understanding that there may be further transactions involving NGL issuers, "that [Pembina] might be involved in such a transaction, and that Provident was among a limited group of industry players with particular strengths in that sector." However, they determined this was far from a material fact and little was confidential.

To establish any of the insider trading allegations here, the ASC needed to prove on the balance of probabilities that material and non-public information regarding Provident supplemented the insider's knowledge such that the insider was aware that Pembina was proposing to acquire Provident. Staff argued that the fact that Pembina was looking for an acquisition was material information about Provident. The ASC panel disagreed, finding that the insider "combined her prior knowledge from non-confidential sources together with a hard (and confidential) material fact ... to make some perspicacious speculations. That, however, barely qualifies as 'abstract expectation,' let alone 'concrete knowledge'." The ASC declined to draw the inference that Staff argued for, finding there was no illegal insider trading. The takeaway is that trading on speculation or gut feelings is not generally prohibited, even for insiders. The law only prevents trading on undisclosed material facts or changes about the issuer. This should provide some comfort to those whose trading speculations are correctly (or fortuitously) made that they will not, on that basis alone, face liability.

CBB KNOWLEDGE CENTRE

Tips and guidelines to assist our clients in understanding the law and becoming better drafters.

Drafting Tip of the Month

Avoid Using Terms and Conditions
By: Corporate Counsel Bulletin Board

You will frequently encounter the phrase "terms and conditions" used unnecessarily in agreements when cross-referencing other agreement or documents. Generally, this superfluous language may be deleted as in the following examples:

1. The Executive will be entitled to no less than four weeks' paid vacation per year during the Term, subject to (but not reduced by) the terms and conditions of the Company's vacation policy in effect from time to time.
2. The Tenant shall comply with all of the terms and conditions of each insurance policy maintained in accordance with this Lease.

Where a complete deletion of the phrase is not appropriate, you can still delete the reference to "conditions," since conditions are a subset of contractual terms. Here are some examples:

1. The Recipient shall refrain from disclosing or communicating the existence or the terms and conditions of this agreement.
2. None of the terms and conditions of the Lease will be affected by the completion of the Transactions.

You should exercise caution, however, since there may be circumstances where you want specifically to reference conditions (for example, in connection with "conditions of closing").

Legal Phrase of the Month

Non-GAAP Financial Measure
By: Zohar Barzilai and Andrew Spencer

A "non-GAAP financial measure" is a numerical measure of an issuer's historical or future financial performance, financial position or cash flow, that does not meet one or more of the criteria of an issuer's GAAP (generally accepted accounting principles) for presentation in financial statements and that either: (i) excludes amounts that are included in the most directly comparable measure calculated and presented in accordance with the issuer's GAAP; or (ii) includes amounts that are excluded from the most directly comparable measure calculated and presented in accordance with the issuer's GAAP.

Non-GAAP financial measures are often found in public documents, such as management's discussion & analysis ("MD&A"), press releases, prospectus filings, websites and marketing materials. Issuers choose to present these measures as they believe they provide additional insight into an entity's overall performance, financial position or cash flow. Investors and financial analysts have come to rely on these metrics, as they can provide additional insight into overall performance, financial position or cash flow or may measure matters specific to the issuer's industry.

Because non-GAAP financial measures do not meet one or more of the criteria of an issuer's GAAP for presentation in financial statements, an issuer should not include non-GAAP financial measures in its financial statements. An issuer should not present a non-GAAP financial measure in a way that confuses or obscures the most directly comparable measure calculated in accordance with the issuer's GAAP and presented in its financial statements. In order to ensure that a non-GAAP financial measure does not mislead investors, an issuer should clearly define the measure and explain its relevance. As well, an issuer should present the measure on a consistent basis from period to period or explain any changes.

EBITDA, Cash Cost/Ounce, Adjusted Earnings, Adjusted EBITDA, Funds From Operations, Adjusted Funds From Operations, Net Operating Income, Free Cash Flow, All in Cash Cost and Net Debt are all examples of non-GAAP financial measures.

Disclosure containing such metrics often raises concerns however, as there is no standard method to calculate these measures, creating comparability difficulties across similar issuers and across time for the same issuer. The securities regulators have previously provided their views on the manner in which non-GAAP financial measures should be presented in CSA Staff Notice 52-306 Non-GAAP Financial Measures and Additional GAAP Measures. Their expectations have been published for over 10 years. However, if you ask the OSC how issuers are doing with their disclosure of non-GAAP financial measures, the answer is "disappointing". Following a review of the disclosure of 50 issuers, OSC staff identified concerns in the disclosure of 86% of the issuers reviewed. The OSC is concerned that absent improvements, investors may be confused or potentially misled when non-GAAP financial measures are not presented appropriately. The OSC has provided a number of useful examples of good disclosure in various situations (and some examples of poor disclosure) in OSC Staff Notice 52-722 Report on Staff's Review of Non-GAAP Financial Measures and Additional GAAP Measures, a copy of which can be found here. Issuers should also refer to CSA Staff Notice 52-306 which provides guidance on disclosure, a copy of which can be found here. A copy of Cassels Brocks' e-LERT discussing Non-GAAP financial measures can be found here.

PUBLIC COMPANY ACTIVITY

Information and intelligence about what public companies are doing in the market

Public Offerings

Launched July 1-15, 2014

Equity Offerings

Debt Offerings

Upcoming Shareholder Meetings

• On July 30, 2014, the shareholders of EastCoal Inc. will be asked to vote to approve a special resolution authorizing the delisting of EastCoal's ordinary shares on the London Stock Exchange's sub-market AIM.
• On July 30, 2014, the shareholders of Sulliden Gold Corporation Ltd. will be asked to vote to approve a plan of arrangement whereby Rio Alto Mining Limited will acquire all of the common shares of Sulliden and the shareholders of Sulliden will receive 0.525 of a common share of Rio Alto and 0.10 of a common share in a newly incorporated company, for each common share of Sulliden held.
• On August 5, 2014, 2014, the shareholders of Wolfpack Gold Corp. will be asked to vote to approve an arrangement with Timberline Resources Corporation, whereby Timberline will acquire all of the issued and outstanding shares of Wolfpack's wholly-owned subsidiary, Wolfpack Gold (Nevada) Corp., which will hold certain of Wolfpack's gold properties and approximately $4,225,000 in cash.
• On August 6, 2014, the shareholders of Goldrush Resources Ltd. will be asked to vote to approve the sale of all the shares of Goldrush Burkina SARL, the wholly-owned subsidiary of Goldrush Resources, to Nord Prognoz Ltd for US$4,250,000.
• On August 6, 2014, the shareholders of Crocotta Energy Inc. will be asked to vote to approve a plan of arrangement involving Crocotta, 1828073 Alberta Ltd. and Long Run Exploration Ltd. whereby Long Run will acquire all of the issued and outstanding common shares of Crocotta. Each common share of Crocotta will be exchanged for: (i) 0.415 of a common share of Long Run; (ii) one common share of 1828073 Alberta; and (iii) 0.2 of a share purchase warrant of 1828073 Alberta.

Risk Factor of the Month

Our focus on risk factors is intended to highlight the ways in which issuers are disclosing specific, material risks to their business rather than relying on market standards or boilerplate.

Uranium One Inc.
By: Sean Williamson

On July 15, 2014, Japan's Nuclear Regulation Authority announced that, for the first time since the meltdown of the Fukushima reactor in 2011, an atomic energy plant had met its stricter safety standards imposed in wake of the tsunami and catastrophic failure of the nuclear power plant. In light of this development, it is interesting to note how companies involved in nuclear power and related industries have taken note of the Fukushima disaster and its impact on their business. As recently as this year, Uranium One inc. made specific note of how the incident was a contributing factor in the public's perception of nuclear energy and the potential impact of similar accidents on their industry in the following risk factor found in their Annual Information Form dated March 31, 2014:

Competition from other energy sources and public perception and acceptance of nuclear energy

Nuclear energy competes with other sources of energy, including oil, natural gas, coal and hydroelectricity. These other energy sources are to some extent interchangeable with nuclear energy, particularly over the longer term. Sustained lower prices of oil, natural gas, coal and hydro?electricity may result in lower demand for uranium concentrates which in turn may result in lower market prices for uranium. Furthermore, growth of the uranium and nuclear power industry will depend upon continued and increased acceptance of nuclear technology as a means of generating electricity. Because of unique political, technological and environmental factors that affect the nuclear industry, the industry is subject to public opinion risks which could have an adverse impact on the demand for nuclear power and increase the regulation of the nuclear power industry.

A major incident at a nuclear power station anywhere in the world, such as has occurred at the Fukushima Daiichi nuclear power station in Japan, which was severely damaged by an earthquake and tsunami on March 11, 2011, or an accident relating to the transportation of new or spent nuclear fuel could negatively impact the continuing public acceptance of nuclear energy and the future prospects for nuclear power generation, which may have a material adverse effect on the nuclear industry and the Corporation's financial condition and results of operations.

WHAT WE'RE READING

Capital Markets

Research Paper: The Price of Silence: When No One Asks Questions During Conference Calls
By: Greg Hogan

This paper from Shuping Chen of the University of Texas at Austin and Stephan Hollander and Kelvin Law of Tilburg University suggests that there can be significant capital markets costs to issuers when earnings calls fail to produce any or produce too few questions to management. The authors argue that the absence or lack of questions increases the cost of information acquisition, especially for smaller investors, which adds to information asymmetries among investors, which research indicates leads to decreases in share prices as expected returns become more sensitive to liquidity risk. They also suggest that if investors believe the lack of interaction is due to low interest and that belief results in more selling than buying, prices will be forced down. Ultimately, the study does identify statistically and economically significant indirect costs when earnings calls have no or low interaction between managers and analysts. While they do not suggest that conference calls be abandoned or reduced, other forms of investor relations engagement are suggested as ways to overcome these effects. The study is worth a quick read just for the quotes from exasperated executives at the end of low or no question conference calls.

Disclosure

Research Paper: Carrot or Stick? The Shift From Voluntary to Mandatory Disclosure of Risk Factors
By: Greg Hogan

This paper from Karen Nelson of Rice University and Adam Pritchard of the University of Michigan looks at how risk factor disclosures changed when the United States moved from voluntary disclosure that was encouraged by a statutory safe harbour from liability to mandated disclosure in annual reports. The mandated disclosure improved risk factor disclosure for those issuers that did not have a great incentive to take advantage of the safe harbour due to low litigation risk. Improved disclosure when mandated should not be surprising. However, it is interesting that those issuers with high litigation risk are shown to be better overall at disclosing risks.

From the study:

We find that firms with high litigation risk continue to provide a significantly greater amount of risk factor disclosure in the mandatory regime. Moreover, in both disclosure regimes, high risk firms disclose significantly more risk factor information as litigation risk increases. We also find evidence that risk factor disclosures provide information useful to investors in assessing future firm risk, although here again the findings vary predictably with firms' disclosure incentives and the disclosure regime. For firms with high litigation risk and hence greater incentive to provide meaningful disclosure, one-year-ahead beta and stock return volatility are increasing in the unexpected portion of risk factor disclosure.

WHAT WE'VE BEEN UP TO

Recent Decisions

Cassels Brock Successfully Represents Goldcorp Inc. in Landmark Supreme Court of Canada Decision on Aboriginal and Constitutional Law

On July 11, 2014, the Supreme Court of Canada unanimously ruled that the Government of Ontario has the authority to "take up" land in the "Keewatin Territory" in northwest Ontario so as to limit First Nations' harvesting rights under Treaty 3.

Goldcorp Inc. is the largest employer, and was the single most affected commercial enterprise, in the Keewatin Territory. Goldcorp intervened in the appeal before the Court of Appeal for Ontario, and was a respondent on the appeal before the SCC. Cassels Brock successfully represented Goldcorp in this matter.

Under the terms of Treaty 3, the First Nation signatories agreed to surrender their title and rights to approximately 55,000 square miles of land (subject to lands reserved for their use), including the Keewatin Territory. Treaty 3 gave the First Nation signatories the right to hunt and fish throughout the surrendered territory except on land that is "required or taken up for settlement, mining, lumbering or other purposes" by the "Government of the Dominion of Canada."

Click here for further information and here for the full decision.

Recent Transactions

We acted for Denison Mines Corp. in connection with its acquisition of International Enexco Ltd's uranium exploration assets in the Eastern Athabasca Basin of Saskatchewan, including a 30% interest in the Mann Lake property. The acquisition was completed by way of plan of arrangement under the Business Corporations Act (British Columbia). Click here for more details.

We acted for Flemish Gold Corp. in its previously announced business combination with Murchison Minerals Ltd. By way of a three cornered amalgamation, Flemish and 8403015 Canada Inc., a wholly-owned subsidiary of Murchison ("Subco"), amalgamated pursuant to the terms of a second amended and restated merger agreement between Murchison, Flemish and Subco dated April 23, 2014. Click here for more details.

We acted for Sarama Resources Ltd. in connection its non-brokered private placement of 20,987,200 units for gross proceeds of approximately $3.2 million. The proceeds of the financing will be used to fund diamond drilling at the Sarama owned properties in Liberia, oxide focussed air core drilling at the company's South Houndé Project in Burkina Faso, and an air core scout drilling program at the company's Kandiolé Sud permit. The net proceeds will also be used for general working capital purposes. Click here for more details.

We acted for National Bank Financial Inc. and a syndicate of underwriters in connection with a public offering of $15,000,000 aggregate principal amount of convertible unsecured subordinated debentures of Grenville Strategic Royalty Corp. Grenville intends to use the net proceeds of the Offering for the future purchase of revenue royalties in its target markets. Click here for more details.

We acted for National Bank Financial Inc. and Laurentian Bank Securities Inc. and a syndicate of underwriters in connection with a bought deal offering of common shares of Panoro Minerals Ltd. for gross proceeds of approximately $6 million. Panoro intends to use the net proceeds of the offering to fund the continued exploration and development of Panoro's Cotabambas and Antilla projects in south central Peru. Click here for more details.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.