MI 11-102 and NP 11-203 -- Issuer allowed to make US-compliant disclosure based on US disclosure requirements so long as it describes any significant differences with NI 51-101 -- the Issuer's US disclosure would not meet certain requirements in NI 51-101 -- the Issuer is subject to the requirements of NI 51-101 and will provide disclosure compliant with that instrument -- National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities.
Applicable Legislative Provisions
National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities.
Citation: Re Suncor Energy Inc., 2014 ABASC 215
June 3, 2014
IN THE MATTER OF THE SECURITIES LEGISLATION OF ALBERTA AND ONTARIO (the Jurisdictions) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF SUNCOR ENERGY INC. (the Filer)
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that the Filer be exempted (the COGEH Relief) from sections 5.2 and 5.3 of National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities (NI 51-101).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Alberta Securities Commission is the principal regulator for this application;
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the provinces and territories of Canada other than Alberta and Ontario; and
(c) this decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in any of National Instrument 14-101 Definitions, NI 51-101, and MI 11-102 have the same meaning if used in this decision, unless otherwise defined herein.
This decision is based on the following facts represented by the Filer:
1. The head office of the Filer is located in Calgary, Alberta.
2. The Filer is a reporting issuer in each of the provinces and territories of Canada and is not in default of securities legislation in any of the provinces or territories of Canada.
3. The Filer's common shares are listed on the Toronto Stock Exchange and the New York Stock Exchange under the symbol "SU".
4. The Filer has securities registered under the 1934 Act and is an SEC issuer, as defined in National Instrument 51-102 Continuous Disclosure Obligations.
5. The Filer frequently accesses debt capital markets in the United States (U.S.) through its U.S. debt shelf prospectus (the US Debt Program). The US Debt Program, which the Filer intends to renew at the end of May, 2014, is established in the U.S. by filing a Form F-10 registration statement (F-10) with the SEC.
6. There is no alternative to filing an F-10 available to the Filer to establish its US Debt Program.
7. The F-10 requires disclosure of certain supplemental information with respect to reserves, future net revenue and other information of a type that is specified in Form 51-101F1 (the Supplemental Information).
8. The F-10 requires that the Supplemental Information be prepared in accordance with the requirements and restrictions under U.S. federal securities laws, and guidance applied by the SEC (collectively, the US Disclosure Requirements).
9. In its disclosure that is subject to Part 5 of NI 51-101, commencing on the date of filing the F-10, the Filer will be required to include certain disclosure of reserves, future net revenue and other oil and gas information of a type that is specified in Form 51-101F1 prepared in accordance with US Disclosure Requirements and may wish to include additional disclosure of reserves, future net revenue and other oil and gas information of a type that is specified in Form 51-101F1 prepared in accordance with the US Disclosure Requirements (the US Disclosure).
10. Differences between the US Disclosure Requirements and NI 51-101 are such that, absent relief, some disclosure made in accordance with the US Disclosure Requirements would contravene NI 51-101.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
1. Pursuant to Section 8.1 of NI 51-101, the COGEH Relief is granted with respect to the Filer's US Disclosure, provided that:
(a) the Filer describes any material differences, and the reasons for those differences, between such disclosure and the corresponding disclosure it also makes, as required, under Canadian securities laws (its Required Canadian Disclosure), within or proximate to the Filer's US Disclosure; and
(b) the Filer's US Disclosure:
(i) complies with the US Disclosure Requirements;
(ii) is identified as having been prepared in accordance with US Disclosure Requirements;
(iii) discloses the effective date of the estimates disclosed therein; and
(iv) is based on reserves estimates which have been prepared or audited by a qualified reserves evaluator or auditor.
2. This decision will terminate on the effective date of any amendment to the Legislation in respect of disclosure of the nature contemplated by paragraph 1 of the Decision section of this Order.