a higher standard of alertness is expected of him than from a member
of the general public?
(d) How detailed and specific is the MNPI [material non-public information]? Is it general such as X Co. is “in play”? Or is it more detailed
in that the MNPI includes information that a takeover is occurring
and/or information about price, structure and timing?
(e) How long after he receives the MNPI does he trade? Does a very short
period of time give rise to the inference that the MNPI is more likely to
have originated from a knowledgeable person?
(f) What intermediate steps before trading does the tippee take, if any, to
verify the information received? Does the absence of any independent
verification suggest a belief on the part of the tippee that the MNPI
originated with a knowledgeable person?
(g) Has the tippee ever owned the particular stock before?
(h) Was the trade a significant one given the size of his portfolio?
 Miller submits that these factors are “irrelevant” to the
proper determination of the subsection. I do not agree. These
factors are all relevant considerations in making an objective
determination whether a person, who receives material
non-public information, ought to know that the source of that
information was likely an insider. As the Panel pointed out,
these are not the only factors that might be considered. Nor
would all of the factors be relevant in every case. Further, the
weight to be given to the individual factors may vary from case
to case. What the factors do provide is a series of tests that can
be applied to the facts, as one proceeds along the road to the
 Miller essentially asserts that, in order for him to be
caught by s. 76(5)(e), he must know of the original source of the
information and that that source is an insider. Miller moves
from this central assertion to place great emphasis on the fact
that L.K. said that he did not know that the information that he
received from Azeff came from an insider. Miller’s central assertion is fundamentally flawed. It does not find support in the
wording of the section, nor in the prevailing case law. It is simply
not the test. The test is whether L.K. ought to have known that
the material non-public information emanated from an insider. If
so, L.K. is caught by s. 76(5)(e) and that puts Miller squarely in
the sights of the same subsection when L.K. passes the information on to him. If that were not the proper interpretation of
s. 76(5)(e), then any person could avoid being captured by the subsection simply by not making reasonable, or obvious, inquiries. In
other words, it would set up a wilful blindness exemption. One of
the purposes of having an objective test, in addition to a subjective
test, is, of course, to avoid that very result.