want of materiality is demonstrated by, among other things, the
fact that the financial statements were not recalled or restated.
 As I shall explain below, in more detail, in my opinion,
materiality was not established for any of the five alleged misrepresentations in the immediate case.
2. The SEC subpoena misrepresentation
 Mr. Paniccia submits that the receipt of this October 5,
2014 subpoena due to the seriousness of the topics being investigated by the SEC was a material fact that MDC was required to
disclose in compliance with MDC’s code of conduct and the
requirements of Part XVIII of the Ontario Securities Act. Mr.
Paniccia submits that by not disclosing the investigation earlier that
MDC was representing that it was not under investigation and that
not disclosing an investigation amounts to a misrepresentation.
 In my opinion, there was no misrepresentation and no
withholding of a material fact between the time the subpoena was
served on MDC and April 27, 2015 when MDC disclosed the service of the subpoena. The mere service of a subpoena does not
trigger a duty to disclose, and as noted above, the law is that,
generally speaking, the existence of an investigation is a confidential matter that ought not to be disclosed and that disclosure
requires the approval of the regulator.
 I agree with the reasoning of Judge Koetl in Re Lions
Gate Entertainment Corp., supra, that a regulator’s investigation,
without more, does not trigger a duty to disclose.
 I also agree with the defendants’ argument that the
commencement of an investigation does not necessarily or even
probably mean that there have been any misrepresentations or
breaches of securities laws that may lead to enforcement proceedings. Premature disclosure of an investigation may be harmful
and adversely affect share values because the investigation may
determine that there was no misrepresentation by the company
or no wrongdoing by the company or that any misrepresentation
or wrongdoing was not a matter rising to the level of materiality.
 Mr. Paniccia relies on the authority of Wong v. Pretium
Resources Inc.,49 a misrepresentation by omission case, in support
of its argument that as an objective measure, a reasonable investor
would have considered it material to know that MDC had been
served with a subpoena.
 In the Wong case, Pretium Resources, a mining company,
reported a consultant’s mineral resource estimate for a mine project.