98
[488] The Debrebud Account Summary also indicates that Debrebud spent
$556,188.79 for miscellaneous expenses from January 4, 2005 to October 1,
2008. Schwartz suggested, on cross-examination, that $400,000 of this amount
was for telephone charges payable to Bell Canada, but this was not supported by
the evidence. Schwartz confirmed that Bell Canada was York Rio's only telephone
service provider, and the list of miscellaneous expenses includes only seven
payments to Bell Canada, totalling $27,690.96. The miscellaneous expenses list,
which covers 24 single-spaced pages of the Debrebud Account Summary,
includes many entries for restaurants (for example, Swiss Chalet and the Unicorn
Pub, which Schwartz testified were virtually next door to the Eglinton Location,
the Golden Griddle, Cora's and Pizza Pizza), stores (Bayview Village, the Bay,
Shoppers Drug Mart, Future Shop and Radio Shack, for example), gas, utilities
(Bell Canada and Enbridge); financial services (Canada Life), as well as
numerous service charges that appear to be ATM or other banking fees. The list
also includes unattributed cheques and, on many days, there are multiple
(usually 5 or 6) cash withdrawals in odd amounts, usually in the $400-600
range, consistent with salary payments.
(iii)
Investors' responsibility
[489] Schwartz testified that the York Rio subscription agreement used during the
Schwartz Period stated that the investment was for accredited investors, and
that the York Rio qualifiers asked prospective investors whether they were
accredited.
[490] Schwartz submits that "financial assets" include real estate, and he cross-
examined the Investor Witnesses about their net assets, including their principal
residence. He submitted that Investor Three, who he described as the only
Investor Witness who invested during the Schwartz Period, was an accredited
investor. We are not satisfied that Investor Three was an accredited investor. We
also find that the accredited investor exemption from the registration
requirement was not available with respect to trades of York Rio securities
because York Rio was a market intermediary.
[491] Schwartz cross-examined the Investor Witnesses as to whether they had read
the subscription agreement, and in general about their experience entering into
contracts. He relied, in particular, on the subscription agreement signed by
Investor Three on June 20, 2006, which, under "Representations, Warranties and
Covenants of Subscriber", states that the Subscriber "represents, warrants and
covenants to [York Rio] (and acknowledges that [York Rio], and its counsel, are
relying thereon)" that, amongst other things, the subscriber had been
independently advised as to restrictions on trading the shares imposed by
applicable securities legislation, he has not requested and does need an offering
memorandum, he relies solely on available published information relation to York
Rio and not on any oral or written representation as to fact or otherwise made by
York Rio, he is purchasing the shares under the accredited investor exemption,
no securities regulator has reviewed or passed on the merits of the shares, there
is no government or other insurance covering the shares, and there are risks
associated with purchasing the shares.
[492] Schwartz stated, in his testimony, that if the York Rio investors had read the
subscription agreement and the risk disclosure statement, they would not have
invested "and I would not have walked away with these hundreds of thousands
of dollars" (Hearing Transcript, August, 12, 2011, p. 35, ll. 8-10).