Ontario Securities Commission
Canada does not have a single national securities regulator. Each of the 13 jurisdictions within Canada have set up their own regulators. The only national level agencies are IIROC and MFDA – Investment Industry Regulatory Organisation of Canada and Mutual Fund Dealers Association. The Ontario Securities Commission may be considered as a national regulator, since it has jurisdiction over the Toronto Stock Exchange (TSX). The listing and trading of equity/debt securities and Mutual Funds is mostly done by the two exchanges catering to different types of companies, the main board (for more mature companies) and the venture exchange for younger, early stage companies including start-ups. The regulatory and disclosure requirements are much less for the venture exchange.
A couple of recent examples of OSC’s role and scope are presented below:
A former executive assistant at brokerage firm GMP Securities LP improperly tipped friends about pending takeover deals and hid the existence of a secret trading account from her employer, an Ontario Securities Commission hearing panel has concluded.
The OSC said Eda Marie Agueci, who worked for the mining group in the corporate finance department at GMP from 2002 until 2011, improperly passed along tips about four takeover deals in 2007 and 2008.
The commission also concluded she acted contrary to the public interest when she set up a secret trading account without telling GMP and impersonated her mother when placing trades for the account.
The regulator announced Thursday that three people she tipped – Dennis Wing, Henry Fiorillo and Kimberley Stephany – engaged in improper insider trading based on tips from Ms. Agueci. However, the hearing panel concluded five others named in the case did not breach insider trading rules, ruling it was not satisfied they were informed about deals.
Although some of the allegations levelled by OSC staff were not upheld, the case nonetheless marks a rare victory for the commission in a contested case involving insider trading and tipping, which have historically been difficult allegations to prove.
The regulator is awaiting a ruling in another high-profile case involving tipping allegations against Bay Street lawyer Mitchell Finkelstein, who was accused of telling an old friend who worked as a CIBC investment adviser about pending takeover deals. The hearing wrapped up in December, but a ruling has not yet been issued.
OSC enforcement director Tom Atkinson said Thursday it is a good sign the OSC could win a complex case like the Agueci matter, which involved 10 individuals and five takeover deals. He said the OSC is hopeful it has figured out how to handle such cases more successfully.
“You can imagine how complex a story this is to present to a hearing panel in a coherent fashion,” Mr. Atkinson said in an interview.
“I think the whole team, especially the litigators, did an incredible job presenting the case to the panel. There have been a lot of negative cases out regarding insider trading, but we’re convinced we’re on the right track, and we’re going to continue.”
Mr. Atkinson said the people who were not found to have breached securities rules in the case were the more “minor players” who were further down the chain of alleged tipping. He said the OSC is waiting to see the outcome of the Finkelstein case, which also involved allegations of tipping to a chain of people down the line.
If experience shows the OSC cannot successfully sanction people who have traded based on insider tips passed further down the chain from the original tipper, Mr. Atkinson said the commission has to either consider not naming those people in cases or has to seek legislative changes to make the rules clearer.
“We’ll wait and see what they say in Finkelstein and then we’ll proceed from there,” he said.
While Ms. Agueci was not in a senior role at GMP, her case garnered attention because of her connections to prominent people in the business world.
One of her long-time friends, Goldcorp Inc. chairman Ian Telfer, reached a settlement with the OSC in 2013, acknowledging he helped Ms. Agueci buy shares of a private share offering and agreed to put the shares in a brokerage account set up in the name of her brother-in-law. Mr. Telfer was not accused of involvement in any of the alleged insider trading, but acknowledged in his settlement he should have known there was a risk Ms. Agueci had a beneficial interest in shares that were placed in a brokerage account under another person’s name.
The OSC ruling released Thursday concluded Ms. Agueci passed along tips about takeover deals involving the proposed acquisition of Energy Metals Corp. in 2007; a three-way merger between Yamana Gold Inc., Northern Orion Resources Inc. and Meridian Gold Inc. in 2007; a proposed acquisition of HudBay Minerals Inc. in 2007 and a proposed purchase of Coalcorp Mining Inc. in 2008.
However, the panel rejected allegations about tipping involving a deal to buy Nu Energy Uranium Corp. in 2007.
The hearing panel concluded Mr. Wing, who was chief executive officer of investment dealer Fort House Inc., traded securities in advance of two of the deals. The regulator said Mr. Wing oversaw trading for an account owned by a private company in the British Virgin Islands, Pollen Services Ltd., and concluded that Pollen also traded shares in advance of three of the deals.
The ruling also concluded Mr. Wing misled staff about his connections to Pollen, the private firm’s trading activity, and the existence of a private Swiss trading account he held.
Ms. Stephany, a former trading assistant at Fort House Inc., traded in advance of three deals, the OSC panel ruled. The regulator concluded Mr. Fiorillo, founder of market research firm Research Management Group, traded securities in advance of three deals.
The regulator said it was not satisfied there was evidence of rule breaches by Santo Iacono, Josephine Raponi, Giuseppe Fiorini, John Serpa or Jacob Gornitzki.
The Ontario Securities Commission has ruled that former Bay Street lawyer Mitchell Finkelstein and four others must pay more than $2.7-million in fines and penalties, and banned them from trading for 10 years, for insider trading infractions they were found guilty of earlier this year.
The OSC penalties follow a ruling in March that Mr. Finkelstein, a former senior partner with law firm Davies Ward Phillips & Vineberg LLP, passed inside information about deals to long-time friend Paul Azeff, a former CIBC investment adviser, who was found to have tipped others.
That ruling was seen as an important victory for the commission in a high-profile case involving insider trading allegations, which have proven difficult to successfully prosecute in other cases.
In the sanction decision released Tuesday, Mr. Finkelstein was given a 10-year trading ban, with exceptions for his registered accounts. He will also be permanently banned from being a director or officer of a public company, and has a 10-year ban from being an investor industry registrant. His financial penalties include a $450,000 administrative penalty and $125,000 in OSC costs.
In the penalty ruling, the commissioners acknowledged that Mr. Finkelstein had already suffered from losing his career as a rising mergers and acquisition lawyer. However, they wrote, it was still necessary to “remove any risk that he will be in a position to affect capital markets adversely” and they needed to get the message out to others that there would be consequences for misconduct.
Commissioners Alan Lenczner and AnneMarie Ryan said Mr. Finkelstein’s transgressions “must be considered to be at the upper end of severity,” because he was in a position of trust at his firm and was aware that the information he was dealing with was confidential.
Mr. Finkelstein’s lawyer Gordon Capern said Tuesday that his client will be appealing both the initial ruling and the sanctions. In an e-mail he noted that the panel rejected the OSC staff’s “draconian” request for a $1.5-million penalty against Mr. Finkelstein, but he said the sanctions ordered still “appear to be out of step with recent decisions of the commission.”
Mr. Azeff was given a 10-year trading and registration ban, a lifetime ban on being a director or officer, a penalty of $750,000, and he had to disgorge $49,996 of profits and pay $175,000 in costs.
Korin Bobrow, who is also former CIBC broker, received a lifetime ban on being a director or officer, and a 10-year ban on trading and registration. He was hit with a $300,000 penalty, profit disgorgement of $10,217 and costs of $125,000.
The two other players in the case, Howard Miller and Man Kin (Francis) Cheng, received 10-year bans on trading and registration, and a 10-year ban from being an officer or director. Mr. Miller has to pay a $450,000 penalty, $24,485 in disgorgement and $50,000 in costs. Mr. Cheng’s penalty is $200,000 plus $25,000 in costs.
The OSC’s staff had asked for total fines and other payments of $6.8-million from Mr. Finkelstein and the others involved in the case.
In its initial decision in the case in March, the OSC concluded that Mr. Finkelstein passed insider information on corporate deals to Mr. Azeff, who traded on it himself, passed it on to clients and handed it to Mr. Bobrow, who also either traded on it himself or passed it to clients.
Lawrence Ritchie, a partner with Toronto-based Osler Hoskin & Harcourt LLP who was previously an OSC vice-chairman, said the financial penalties are not as important as strong “preventative and protective sanctions which ensure that investors and market integrity are adequately protected from those who are willing to inappropriately take advantage of access to confidential information.”
If misbehaviour is detected and prosecuted promptly, that can have a significant impact on the personal and professional reputation of the transgressor, Mr. Ritchie said, and can be more devastating “than an arbitrarily high financial penalty that may or may not be collectible.”