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Xstrata Canada Corporation and Glencore International PLC
Headnote
National Policy 11-203 Process for Exemptive Relief Application in Multiple Jurisdictions -- application from U.K. listed company (Parent) and its Canadian wholly-owned subsidiary (Subco) for an order pursuant to section 13.1 of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102), exempting Subco from the requirements of NI 51-102; for an order pursuant to section 8.6 of National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings (NI 52-109) exempting Subco from the requirements of NI 52-109; for an order pursuant to section 8.1 of National Instrument 52-110 Audit Committees (NI 52-110) exempting Subco from the requirements of NI 52-110; for an order pursuant to section 3.1 of National Instrument 58-101 Corporate Governance Practices (NI 58-101) exempting Subco from the requirements of NI 58-101; for an order pursuant to section 121(2)(a)(ii) of the Securities Act (Ontario) exempting certain insiders of Subco from the insider reporting requirements of the Act -- Subco is a wholly-owned subsidiary of Parent -- Parent has provided a full and unconditional guarantee of Subco's securities -- Subco cannot rely on the credit support issuer exemption in section 13.4 of NI 51-102 because Parent is not an "SEC issuer" -- relief granted on conditions substantially analogous to the conditions contained in section 13.4 of NI 51-102 and also on the condition that Parent meets the definition of "designated foreign issuer" in National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers except for the fact that it is not a reporting issuer in a jurisdiction.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 121(2)(a)(ii).
National Instrument 51-102 Continuous Disclosure Obligations, ss. 13.1, 13.4.
National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings, s. 8.6.
National Instrument 52-110 Audit Committees, s. 8.1.
National Instrument 58-101 Corporate Governance Practices, s. 3.1.
National Instrument 55-102 System for Electronic Disclosure by Insiders, s. 6.1.
March 15, 2013
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO
(the Jurisdiction)
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
XSTRATA CANADA CORPORATION (Xstrata Canada)
AND GLENCORE INTERNATIONAL PLC (Glencore)
(the Filers)
DECISION
BACKGROUND
The principal regulator in the Jurisdiction has received an application (the Application) from the Filers for a decision under the securities legislation of the Jurisdiction (the Legislation) exempting:
(a) Xstrata Canada from the requirements of Parts 4 through 12 of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) pursuant to section 13.1 of NI 51-102;
(b) Xstrata Canada from the requirements of National Instrument 58-101 Disclosure of Corporate Governance Practices (NI 58-101) pursuant to section 3.1 of NI 58-101;
(c) Xstrata Canada from the requirements of National Instrument 52-109 Certification of Disclosure In Issuers' Annual and Interim Filings (NI 52-109) pursuant to section 8.6 of NI 52-109 (the Certification Requirements);
(d) Xstrata Canada from the requirements of National Instrument 52-110 Audit Committees (NI 52-110) pursuant to section 8.1 of NI 52-110 (the Audit Committee Requirements); and
(e) the insiders of Xstrata Canada from the insider reporting requirements and requirement to file an insider profile under National Instrument 55-102 System for Electronic Disclosure by Insiders (NI 55-102), National Instrument 55-104 Insider Reporting Requirements and Exemptions (NI 55-104) and the Securities Act (Ontario), in each case as applicable, in respect of securities of Xstrata Canada (the Insider Reporting Requirements).
The exemptions in clauses (a) and (b) are collectively referred to herein as the "Continuous Disclosure Requirements". The exemptions in clauses (a) through (e) are collectively referred to herein as the "Requested Relief".
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission ("OSC") is the principal regulator for the Application; and
(b) the Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System is intended to be relied upon in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, Québec, Saskatchewan, the Northwest Territories, Nunavut and Yukon.
INTERPRETATION
Defined terms contained in National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.
REPRESENTATIONS
This decision is based on the following facts represented by the Filers:
Glencore
1. Glencore is incorporated under the laws of Jersey with its principal executive offices in Baar, Switzerland. Glencore's shares are traded on the London Stock Exchange (LSE) under the symbol "GLEN" and the Hong Kong Stock Exchange under the symbol "0805". Glencore is a member of the FTSE 100 index.
2. Glencore is a leading integrated producer and marketer of commodities, with worldwide activities in the marketing of metals and minerals, energy products and agricultural products and the production, refinement, processing, storage and transport of these products. Glencore's marketing and industrial investment activities are supported by a global network of more than 50 offices located in more than 40 countries throughout Europe, North, Central and South America, the CIS, Asia, Australia, Africa and the Middle East. Glencore's main offices are located in Baar (Switzerland), Stamford (Connecticut), London, Rotterdam, Beijing, Moscow and Singapore.
3. As a company whose ordinary shares are admitted to the premium listing segment of the Official List of the United Kingdom Financial Services Authority (the FSA) and admitted to trading on the LSE's main market for listed securities, Glencore is subject to the financial reporting requirements of the Listing Rules (the U.K. Listing Rules) and the Disclosure Rules and the Transparency Rules of the FSA (together with the U.K. Listing Rules, the U.K. Disclosure Rules) pursuant to which Glencore publishes and files its financial statements prepared in accordance with International Financial Reporting Standards (IFRS). Financial statements are currently required by the U.K. Disclosure Rules to be filed on a semi-annual basis. Under the U.K. Disclosure Rules, Glencore's annual financial statements are required to be published as soon as possible after they have been approved by the board of Glencore and in any event within four months of Glencore's financial year end. The half-yearly financial statements in respect of the first six months of Glencore's financial year are required to be published as soon as possible, but in any event no later than two months after the end of the period to which the report relates. The annual and half-yearly financial statements must remain available to the public for at least five years. Glencore's financial year end is December 31. In addition, Glencore is required by the U.K. Disclosure Rules to make public a statement by its management during the first six-month period of the financial year and another statement by its management during the second six-month period of the financial year (each, an Interim Management Statement). An Interim Management Statement must include an explanation of material events and transactions that have taken place during the relevant period and their impact on the financial position of Glencore and its controlled undertakings and a general description of the financial position and performance of Glencore and its controlled undertakings during the relevant period. All regulated information published by issuers in the U.K. pursuant to the U.K. Disclosure Rules is required to be published on an online facility called the National Storage Mechanism (the NSM). The NSM is a website that provides public access to documents that were previously maintained in the FSA's document viewing facility.T
4. Glencore is in compliance with the requirements of the U.K. Disclosure Rules concerning the disclosure made to the public, to securityholders of Glencore and to the FSA relating to Glencore and the trading of its securities (the U.K. Disclosure Requirements) and has filed all documents that it is required to have filed by the U.K. Disclosure Requirements.
5. Glencore is not a "reporting issuer" or equivalent in any of the provinces or territories of Canada.
6. Glencore is not in default of the securities legislation of any of the provinces and territories of Canada.
7. Glencore does not have a class of securities registered under section 12 of the Securities Exchange Act of 1934 of the United States (the 1934 Act) and is not required to file reports under section 15(d) of the 1934 Act.
8. The total number of equity securities of Glencore owned, directly or indirectly, by residents of Canada does not exceed 10 per cent, on a fully diluted basis, of the total number of Glencore's equity securities.
Xstrata Canada
9. Xstrata Canada is a corporation amalgamated under the laws of the Province of Ontario with its principal executive offices located in Toronto, Ontario, and is the successor by amalgamation of Xstrata Canada Inc. (XCI), a corporation existing and incorporated under the laws of the Province of Ontario. Xstrata Canada is a wholly-owned indirect subsidiary of Xstrata plc (Xstrata) and its predecessor, XCI, was incorporated for the purpose of acquiring Falconbridge Limited, which corporation was the result of an amalgamation between Noranda Inc. and the former Falconbridge Limited that occurred on June 30, 2005. Xstrata Canada's financial year end is December 31.
10. Xstrata Canada is principally engaged in the mining and production of copper, nickel and zinc.
11. The authorized capital of Xstrata Canada consists of an unlimited number of common shares (Common Shares). As of the date hereof, there were outstanding 1,100 Common Shares, all of which are owned indirectly by Xstrata.
12. Xstrata Canada is a reporting issuer or its equivalent in each of the provinces and territories of Canada.
13. Xstrata Canada is not in default of any of the requirements of the securities legislation in any of the provinces or territories of Canada.
14. No securities of Xstrata Canada are listed on a securities exchange.
15. As of the date hereof, Xstrata Canada had outstanding the following unsecured notes and debentures:
(a) US$250 million principal amount of 6.2% notes due June 15, 2035;
(b) US$250 million principal amount of 5.5% notes due June 15, 2017;
(c) US$341 million principal amount of 6% notes due October 15, 2015; and
(d) US$250 million principal amount of 5.375% notes due June 1, 2015,
(collectively, the Notes).
16. Two additional series of Xstrata Canada notes -- US$300 million principal amount of 7.25% notes due July 15, 2012, and US$250 million principal amount of 7.35% notes due June 5, 2012 -- were repaid in full on their stated maturity dates.
Xstrata
17. Xstrata is a corporation existing and incorporated under the laws of England and Wales with its principal executive offices in Zug, Switzerland. Xstrata's ordinary shares are listed on the LSE under the symbol XTA and on the SIX Swiss Exchange under the symbol XTAN. Xstrata is expected to maintain these listings until the Merger (as hereinafter defined) is completed.
18. Xstrata is a major producer of copper, coking coal, thermal coal, ferrochrome, nickel, vanadium and zinc, with additional exposure to gold, cobalt, lead and silver. Xstrata's operations and projects span five continents and 20 countries.
19. As a company whose ordinary shares are admitted to the premium listing segment of the Official List of the FSA and admitted to trading on the LSE's main market for listed securities, Xstrata is subject to the financial reporting and other continuous disclosure requirements of the U.K. Disclosure Rules, which, among other things, require Xstrata to publish its financial statements on a semi-annual basis prepared in accordance with IFRS.
20. In connection with its acquisition of Xstrata Canada, Xstrata fully and unconditionally guaranteed (the Xstrata Guarantee), among other things, the payment of principal and interest owing by Xstrata Canada to the holders of all of the Notes and certain other debt securities and preferred shares that have since been redeemed or retired, as applicable. The Xstrata Guarantee was implemented by amending the trust indentures pursuant to which the Notes and other such securities were issued.
21. In connection with the Xstrata Guarantee of the Notes and other then-outstanding securities, the securities regulators of each of the provinces and territories granted Xstrata Canada the relief described in paragraphs 22 to 24 below (the Prior Relief). In accordance with the terms of the Prior Relief, Xstrata Canada has been relieved from, among other things, filing financial statements that would otherwise be required under NI 51-102 on the basis that Xstrata Canada instead files on SEDAR copies of all financial statements and certain other filings made by Xstrata pursuant to the U.K. Disclosure Rules.
Prior Relief
22. On September 15, 2006, Xstrata Canada (then Falconbridge Limited), XCI and Xstrata made an application, as amended and supplemented, to the OSC as principal regulator and the other provinces and territories of Canada in accordance with the then-existing Mutual Reliance and Review System procedures, pursuant to which the filers obtained an order from the OSC dated December 8, 2006 (the 2006 Order) relieving Xstrata Canada, on the conditions and restrictions set out therein, from certain requirements under NI 51-102, NI 58-101, National Instrument 52-107 Acceptable Accounting Principles, Audited Standards and Foreign Currency (now National Instrument 52-107 Acceptable Accounting Principles and Auditing Standards) (NI 52-107), NI 52-109, NI 52-110 and NI 55-102.
23. The relief granted under the 2006 Order was subject to a five-year sunset clause.
24. On June 14, 2011, Xstrata and Xstrata Canada applied to the OSC, as principal regulator for and on behalf of the other provinces and territories of Canada under Multilateral Instrument 11-102 Passport System, for a decision (the 2012 Order) extending the 2006 Order for a further five years. The 2012 Order was issued on March 2, 2012.
Glencore Guarantee
25. On February 7, 2012, Glencore and Xstrata agreed in principle to a merger of equals (the Merger), which, upon completion, would create a corporation valued at approximately US$90 billion. If the Merger had proceeded on its originally disclosed terms, shareholders of Xstrata would have received 2.8 shares of Glencore (the surviving public entity) for each share of Xstrata owned. On October 1, 2012, Glencore and Xstrata announced that they had reached agreement on revised terms of the Merger, including an increase in the merger ratio from 2.8 to 3.05 shares of Glencore for each Xstrata share. The Merger received all requisite shareholder approvals on November 20, 2012. Completion of the Merger remains conditional upon the receipt of certain outstanding regulatory approvals. If the Merger is completed, Xstrata will become a private, wholly-owned subsidiary of Glencore, and Glencore will become the indirect beneficial owner of all of the outstanding shares of Xstrata Canada.
26. Concurrently with the completion of the Merger, Glencore will provide a full and unconditional guarantee of the payments to be made by Xstrata Canada, as stipulated in the terms of the Notes or in one or more agreements governing the rights of holders of the Notes, that results in the holders of the Notes being entitled to receive payment from Glencore within 15 days of any failure by Xstrata Canada to make a payment (theGlencore Guarantee).
27. The only securities issued by Xstrata Canada that are owned by parties unaffiliated with Glencore are the Notes which, upon closing of the Merger, will be guaranteed by Glencore.
28. Glencore and Xstrata Canada currently have investment grade credit ratings. Glencore's long-term debt securities are presently rated BBB by Standard & Poor's with a stable outlook and Baa2 by Moody's Investors Service with a stable outlook. Xstrata Canada's long-term debt securities are presently rated BBB+ by Standard & Poor's with a negative outlook, Baa2 by Moody's Investors Service with a positive outlook and A (low) by Dominion Bond Rating Service Limited with a stable trend.
29. As a result of the Glencore Guarantee, the holders of the Notes in effect will have a greater interest in the financial condition of Glencore than they have in Xstrata Canada alone.
30. Securities legislation currently provides certain exemptions from continuous disclosure and other obligations on reporting issuers incorporated in foreign jurisdictions that have a limited presence in the markets of the provinces and territories of Canada. National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (NI 71-102) provides numerous exemptions for such issuers from the continuous disclosure requirements of NI 51-102.
31. In addition, reporting issuers which are not incorporated in a foreign jurisdiction are also relieved of a significant portion of the continuous disclosure obligations under NI 51-102 pursuant to section 13.4 of NI 51-102 where the reporting issuer has issued only non-convertible debt and preferred shares that have been fully and unconditionally guaranteed by an "SEC issuer".
32. Glencore is not an SEC issuer for the purposes of section 13.4 of NI 51-102. As a result, the exemptions from NI 51-102 for credit support issuers who have issued only designated credit support securities fully and unconditionally guaranteed by an SEC issuer are not applicable to Xstrata Canada and Glencore.
33. On March 29, 2012, Xstrata Canada filed a technical report under National Instrument 43-101 Standards of Disclosure for Mineral Projects (NI 43-101) in respect of the Collahuasi copper mine in Chile (the Collahuasi Property). The Collahuasi Property is the only property that will be material to Glencore for purposes of NI 43-101 upon completion of the Merger.
DECISION
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
1. The decision of the principal regulator under the Legislation is that the relief from the Continuous Disclosure Requirements and the Audit Committee Requirements is granted to Xstrata Canada provided that:
(a) Glencore is the direct or indirect beneficial owner of all of the issued and outstanding voting securities of Xstrata Canada;
(b) Glencore is not incorporated or organized under the laws of Canada, and Canadian residents own, directly or indirectly, outstanding voting securities carrying no more than 50 per cent of the votes for the election of directors, and none of the following is true:
(i) the majority of the executive officers or directors of Glencore are residents of Canada;
(ii) more than 50 per cent of the consolidated assets of Glencore are located in Canada; and
(iii) the business of Glencore is administered principally in Canada;
(c) Glencore does not have a class of securities registered under section 12 of the 1934 Act and is not required to file reports under section 15(d) of the 1934 Act;
(d) Glencore's ordinary shares are admitted to the premium listing segment of the Official List of the FSA and admitted to trading on the LSE's main market for listed securities and Glencore is subject to and complies with the U.K. Disclosure Requirements and has filed all documents that it is required to have filed by the U.K. Disclosure Requirements;
(e) the United Kingdom is a designated foreign jurisdiction as such term is defined in section 1.1 of NI 71-102;
(f) the total number of equity securities of Glencore owned, directly or indirectly, by residents of Canada does not exceed 10 per cent, on a fully-diluted basis, of the total number of Glencore's equity securities, calculated in accordance with sections 1.2 and 1.3 of NI 71-102;
(g) Xstrata Canada does not issue any securities, and does not have any securities outstanding, other than:
(i) designated credit support securities (as such term is defined in NI 51-102) for which Glencore has provided a full and unconditional guarantee;
(ii) securities issued to and held by Glencore or an affiliate of Glencore;
(iii) debt securities issued to and held by banks, loan corporations, loan and investment corporations, savings companies, trust corporations, treasury branches, savings or credit unions, financial services cooperatives, insurance companies or other financial institutions; or
(iv) securities issued under exemptions from the prospectus requirement in section 2.35 of National Instrument 45-106 Prospectus and Registration Exemptions;
(h) Glencore has provided a full and unconditional guarantee of the payments to be made by Xstrata Canada, as stipulated in the terms of the Notes or in one or more agreements governing the rights of holders of the Notes, that results in the holders of the Notes being entitled to receive payment from Glencore within 15 days of any failure by Xstrata Canada to make a payment, and no other person or company (save and except for Xstrata) has provided a guarantee or alternative credit support (as such term is defined in NI 51-102) for the payments to be made under any issued and outstanding securities of Xstrata Canada;
(i) Xstrata Canada files on SEDAR in electronic format copies of all documents Glencore is required to file with the FSA under the U.K. Disclosure Requirements, at the same time or as soon as practicable after such documents are made public on the NSM, provided that Xstrata Canada shall not be required to file on SEDAR prospectuses submitted to the FSA for securities offerings that do not take place in Canada;
(j) Xstrata Canada files on SEDAR in electronic format copies of all documents that are published by Glencore via a Regulatory Information Service (the approved disseminators of regulatory information under the continuous disclosure regime in the U.K.) and are accessible by the public on the NSM (other than documents not required to be filed on SEDAR pursuant to paragraph (i) above), at the same time or as soon as practicable after such documents are published via a Regulatory Information Service;
(k) Glencore's disclosure documents required to be filed electronically pursuant to paragraphs (i) and (j) above comply with the requirements of NI 52-107 applicable to foreign issuers;
(l) at least once a year, Xstrata Canada discloses in, or as an appendix to, a document that Glencore is required to file under the U.K. Disclosure Requirements and that Xstrata Canada files in the provinces and territories of Canada that:
(i) Glencore is subject to the regulatory requirements of the FSA; and
(ii) pursuant to the terms of this decision, the principal regulator has provided Xstrata Canada with exemptive relief from certain continuous disclosure requirements under the Legislation provided that, among other things, Xstrata Canada files in the provinces and territories of Canada and provides to its securityholders the disclosure documents filed by Glencore and provided to its securityholders pursuant to the U.K. Disclosure Requirements;
(m) Glencore complies with the U.K. Disclosure Requirements in respect of making public disclosure of material information on a timely basis and immediately issues in the provinces and territories of Canada and files any news release that discloses a material change in Glencore's affairs;
(n) Xstrata Canada issues a news release and files a material change report for all material changes in respect of the affairs of Xstrata Canada that are not also material changes in the affairs of Glencore;
(o) Xstrata Canada files on SEDAR, in electronic format, in or with the copy of each consolidated interim financial report and consolidated annual financial statements of Glencore filed pursuant to paragraph (i) above, for the periods covered by the consolidated interim financial report or consolidated annual financial statements of Glencore filed, consolidating summary financial information for Glencore presented with a separate column for each of the following:
(i) Glencore;
(ii) Xstrata Canada;
(iii) any other subsidiaries of Glencore on a combined basis;
(iv) consolidating adjustments; and
(v) the total consolidated amounts;
(p) the consolidating summary financial information required by paragraph (o) above shall be prepared on a basis consistent with section 13.4(1.1) of NI 51-102;
(q) so long as the securities issued by Xstrata Canada include debt, Xstrata Canada concurrently sends to all holders in the provinces and territories of Canada of such securities all disclosure materials that are sent to holders of similar debt of Glencore in the manner and at the time required by the U.K. Disclosure Requirements and if any such documents are required to be sent, at least once each year, Glencore includes with such documents the disclosure required under paragraph (l) above;
(r) in the event that Xstrata Canada issues designated credit support securities that are non-convertible preferred shares or convertible preferred shares that are convertible into securities of Glencore, Xstrata Canada concurrently sends to all holders in the provinces and territories of Canada of such securities all disclosure materials that are sent to holders of similar preferred shares of Glencore in the manner and at the time required by the U.K. Disclosure Requirements and if any such documents are required to be sent, at least once each year, Glencore includes with such documents the disclosure required under paragraph (l) above;
(s) any amendments or supplements to disclosure documents of Glencore filed by Xstrata Canada pursuant to this decision shall also be filed;
(t) any documents of Glencore filed by Xstrata Canada pursuant to this decision comply with the requirements of NI 43-101;
(u) Xstrata Canada files a technical report under NI 43-101 to support scientific or technical information in Glencore's disclosure to shareholders describing each mineral project on a property material to Glencore;
(v) Xstrata Canada files such other documents relating to Glencore that Glencore would be required to file under current and future requirements of the Legislation if Glencore were a designated foreign issuer (as defined in NI 71-102) and Glencore complies with current and future requirements of the Legislation applicable to designated foreign issuers as if Glencore were a designated foreign issuer, provided that Glencore will not be considered to be a reporting issuer because it complies with such requirements in order to satisfy the conditions of this decision, and provided further that any requirement of the Legislation that requires designated foreign issuers to file disclosure documents may be satisfied by the filing of such documents by Xstrata Canada; and
(w) the relief from the Continuous Disclosure Requirements and Audit Committee Requirements will expire on the date that is five years after the date of this decision.
2. The further decision of the principal regulator under the Legislation is that the relief from the Certification Requirements is granted to Xstrata Canada provided that:
(a) Xstrata Canada qualifies for the relief from the Continuous Disclosure Requirements and Audit Committee Requirements and Xstrata Canada and Glencore are in compliance with the requirements and conditions set out in paragraph 1 above;
(b) Xstrata Canada is not required to, and does not, file its own annual or interim filings; and
(c) the relief from the Certification Requirements will expire on the date that is five years after the date of this decision.
3. The further decision of the principal regulator is that the relief from the Insider Reporting Requirements be granted to insiders of Xstrata Canada provided that:
(a) if the insider is not Glencore,
(i) the insider does not receive, in the ordinary course, information as to material facts or material changes concerning Glencore before the material facts or material changes are generally disclosed; and
(ii) the insider is not an insider of Glencore in any capacity other than by virtue of being an insider of Xstrata Canada;
(b) if the insider is Glencore, Glencore does not beneficially own any designated credit support securities of Xstrata Canada;
(c) Xstrata Canada qualifies for the relief from the Continuous Disclosure Requirements and Audit Committee Requirements and Xstrata Canada and Glencore are in compliance with the requirements and conditions set out in paragraph 1 above; and
(d) such relief from the Insider Reporting Requirements will expire on the date that is five years after the date of this decision.
As to the Exemption Sought (other than from the Insider Reporting Requirements in the Securities Act (Ontario)):
"Jo-Anne Matear"Manager, Corporate Finance BranchOntario Securities Commission
As to the Exemption Sought from the Insider Reporting Requirements in the Securities Act (Ontario):
"Edward P. Kerwin"CommissionerOntario Securities Commission"P.L. Kennedy"CommissionerOntario Securities Commission