As a result, it did not have the effect of mitigating the damages
she suffered from her wrongful dismissal by the appellant
employer and should not be deducted.
Finkelstein et al. v. Ontario Securities Commission
[Indexed as: Finkelstein v. Ontario Securities Commission]
2016 ONSC 7508
Superior Court of Justice, Divisional Court, Marrocco A.C.J.,
Nordheimer and Thorburn JJ. December 2, 2016
Securities regulation — Offences — Appellants found guilty of tipping
and insider trading — Evidence largely circumstantial — M’s liability
based on s. 76(5)(e) of Securities Act — Liability under s. 76(5)(e) not
requiring that person charged had ability to trace information back to
its originator — M’s liability established on basis that he obtained material non-public information from friend of another appellant and ought
reasonably to have known that information originated from insider —
Panel drawing reasonable and logical inferences from proven facts in
relation to all appellants except C — Panel making number of factual
errors in its analysis of evidence in relation to C — C’s appeal allowed —
Other appeals dismissed — Securities Act, R.S.O. 1990, c. S.5, s. 76(5)(e).
Securities regulation — Penalties — Four appellants found guilty of
tipping and three of them also found guilty of insider trading — Administrative penalties of $150,000 for each violation affirmed on appeal.
Securities regulation — Procedure — Adjournment — Appellants’
counsel retaining expert to assist counsel in challenging respondent’s
evidence — Expert losing her work product through computer error
several months before hearing — Panel not denying appellants procedural fairness by refusing to adjourn hearing.
The appellants were found guilty of tipping. All of the appellants except F were
also found guilty of insider trading. F was a corporate and commercial lawyer
and a close friend of A, who was also his investment advisor. A, B, M and C were
employed in the securities industry. A and B were close friends and worked
together. The evidence was largely circumstantial. The panel found that the
tipping chain began with F, who provided material non-public information to
A regarding three corporate transactions. A provided material non-public information to his friend LK and to B. LK passed the tips along to M, who worked
with C. The appellants appealed the merits decision and the penalties imposed.
A and B sought to adduce fresh evidence in the form of an affidavit from
A about a problem which A and B experienced with an expert witness who was
retained by their counsel to assist counsel in challenging the respondent’s
evidence. The expert lost her work product through a computer error several
months before the hearing commenced, and the panel refused A and B’s
request for an adjournment.