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Citation: Kitmitto (Re), 2022 ONCMT 12  
Date: 2022-05-26  
File No. 2018-70  
IN THE MATTER OF  
MAJD KITMITTO, STEVEN VANNATTA, CHRISTOPHER CANDUSSO, CLAUDIO  
CANDUSSO, DONALD ALEXANDER (SANDY) GOSS, JOHN FIELDING AND  
FRANK FAKHRY  
REASONS AND DECISION  
(Subsection 127(1) of the Securities Act, RSO 1990, c S.5)  
Adjudicators: M. Cecilia Williams (chair of the panel)  
Heather Zordel  
Craig Hayman  
Hearing:  
By videoconference, October 5, 7, 9, 13, 14, 15, 16, 19, 21, 22, 23,  
26, 27, 28, 29, 2020, November 2, 4, 5, 6, 12, 13, 16, 18, 19, 23,  
25, 26, 27, 30, 2020, December 1, 2, 4, 7, 2020, February 24, 25  
and 26, 2021; final written submissions received May 13, 2021  
Appearances: Katrina Gustafson  
For Staff of the Ontario Securities  
Commission  
Christina Galbraith  
Ian Smith  
For Majd Kitmitto  
Andrew Guaglio  
Christopher Kostopoulos  
For Steven Vannatta  
Alistair Crawley  
Alexandra Grishanova  
For Christopher Candusso and Claudio  
Candusso  
John Picone  
For Donald Alexander (Sandy) Goss  
Lara Jackson  
Stephanie Voudouris  
Frank Addario  
Lynda Morgan  
For John Fielding  
For Frank Fakhry  
Janice Wright  
Greg Temelini  
TABLE OF CONTENTS  
REASONS AND DECISION OF THE MAJORITY (M. CECILIA WILLIAMS AND CRAIG  
HAYMAN).......................................................................................................... 1  
I.  
OVERVIEW .............................................................................................. 1  
II.  
BACKGROUND.......................................................................................... 3  
A.  
B.  
C.  
D.  
E.  
F.  
Kitmitto......................................................................................... 3  
Vannatta........................................................................................ 3  
Christopher Candusso...................................................................... 3  
Claudio Candusso............................................................................ 3  
Goss ............................................................................................. 3  
Fielding ......................................................................................... 4  
Fakhry........................................................................................... 4  
G.  
III.  
PROCEDURAL AND EVIDENTIARY ISSUES .................................................... 4  
A.  
Motion to strike references to transcripts of compelled testimony of certain  
respondents in the George Affidavit ................................................... 4  
Request to include entire compelled evidence of the Candussos and  
Vannatta........................................................................................ 7  
Objection to the admissibility of certain phone records as evidence .......11  
Confidentiality order.......................................................................13  
Breach of the witness exclusion order ...............................................14  
Other evidentiary issues..................................................................17  
Adverse inferences................................................................17  
B.  
C.  
D.  
E.  
F.  
(a)  
(b)  
Adverse inference against Vannatta ...............................17  
Adverse inference against Staff .....................................18  
Similar fact and character evidence.........................................18  
(a) Kitmitto .....................................................................19  
i.  
Kitmitto email to Christopher about Blackbook  
Technologies.....................................................19  
ii.  
Kitmitto and Christopher noise complaint ..............19  
iii.  
Kitmitto’s July 4 Patient Home Monitoring email with  
Goss ................................................................20  
iv.  
Alleged communications between Kitmitto and  
Fielding about Amaya .........................................20  
v.  
Alleged “culture of non-compliance” at Aston Financial20  
vi.  
Kitmitto’s alleged “cavalier approach to confidentiality  
and compliance” ................................................20  
vii.  
Whether Kitmitto opened the door to a character  
attack ..............................................................20  
(b)  
Fielding......................................................................20  
Breach of the rule in Browne v Dunn .......................................21  
IV.  
ISSUES AND ANALYSIS ............................................................................23  
i
A.  
B.  
General issues...............................................................................23  
Circumstantial evidence.........................................................23  
The Act’s prohibition against tipping ........................................24  
The Act’s prohibition against insider trading..............................24  
Definition of a “material fact” .................................................25  
Special relationship in general ................................................25  
Credibility............................................................................27  
“Conduct contrary to the public interest..................................27  
Analysis specific to each Respondent.................................................28  
Kitmitto...............................................................................28  
(a)  
Did Kitmitto receive Amaya MNPI and, if so, on what date?  
................................................................................28  
i.  
Period prior to April 29, 2014 meeting...................28  
ii.  
Period after the April 29, 2014 meeting.................29  
(b)  
(c)  
Was Kitmitto in a special relationship with Amaya?...........30  
Conclusion regarding whether and when Kitmitto received  
MNPI and if he was in a special relationship at that time ...30  
Vannatta .............................................................................30  
(a)  
Did Kitmitto tip Vannatta with the Amaya MNPI and did  
Vannatta trade Amaya shares while in possession of that  
information?...............................................................30  
Was Vannatta in a special relationship with Amaya? .........33  
Conclusions on tipping and trading.................................33  
Did Vannatta mislead Staff?..........................................34  
(b)  
(c)  
(d)  
i.  
Vannatta did not remember trading on May 14.......35  
ii.  
iii.  
Vannatta had pre-cleared all of his Amaya trades ...35  
Vannatta had provided brokerage statements to Aston  
Asset Management Compliance............................35  
iv.  
Vannatta did not choose the 45-day range for his  
Scotia transaction histories and had provided Aston  
Asset Management Compliance with a transaction  
history for his Scotia Regular account ...................36  
(e)  
Did Vannatta tip his relatives with the Amaya MNPI? ........36  
i.  
CV ...................................................................37  
DU and NU........................................................37  
KU...................................................................37  
ii.  
iii.  
(f)  
(g)  
Conclusion on tipping...................................................38  
Was Vannatta’s concealment of his Amaya trading from  
Aston Asset Management abusive and / or does it engage an  
animating principle of the Act........................................38  
Christopher..........................................................................41  
(a)  
Did Kitmitto tip Christopher with the Amaya MNPI and did  
Christopher trade Amaya shares while in possession of that  
information?...............................................................41  
Was Christopher in a special relationship with Amaya?......45  
Conclusions on insider trading and tipping ......................45  
Did Christopher tip Claudio with the Amaya MNPI?...........45  
(b)  
(c)  
(d)  
ii  
(e)  
Did Christopher mislead Staff? ......................................46  
Claudio ...............................................................................47  
Goss...................................................................................47  
(a)  
Did Kitmitto tip Goss with the Amaya MNPI and did Goss  
trade Amaya shares while in possession of that information?  
................................................................................47  
Was Goss in a special relationship with Amaya?...............52  
Did Goss tip Fakhry with the Amaya MNPI? .....................52  
Did Goss tip his client Fielding with the Amaya MNPI?.......56  
Did Goss tip his client FH with the Amaya MNPI?..............59  
Conclusions regarding the allegations that Goss tipped  
Fakhry, Fielding and FH................................................60  
Did Goss recommend Amaya to his clients while he was in  
possession of MNPI and, if so, was his conduct abusive of  
the capital markets and /or did it engage an animating  
principle of the Act ......................................................61  
(b)  
(c)  
(d)  
(e)  
(f)  
(g)  
i.  
AE ...................................................................61  
TM...................................................................62  
BB ...................................................................62  
JU....................................................................62  
FH ...................................................................62  
BP ...................................................................63  
TD...................................................................63  
AJ....................................................................63  
JM/TM..............................................................63  
RP ...................................................................64  
PK ...................................................................64  
KT ...................................................................64  
RB ...................................................................64  
SO...................................................................65  
JE....................................................................65  
CS ...................................................................65  
ii.  
iii.  
iv.  
v.  
vi.  
vii.  
viii.  
ix.  
x.  
xi.  
xii.  
xiii.  
xiv.  
xv.  
xvi.  
xvii. WP...................................................................65  
xviii. AC ...................................................................65  
xix.  
xx.  
SC ...................................................................65  
Fielding ............................................................66  
Fakhry ................................................................................66  
(a)  
(b)  
Was Fakhry in a special relationship with Amaya? ............66  
Did Fakhry trade Amaya shares while in possession of the  
Amaya MNPI? .............................................................67  
Did Fakhry tip his client CB and his relatives NG and CG with  
the Amaya MNPI?........................................................68  
(c)  
iii  
i.  
Client CB ..........................................................68  
NG...................................................................68  
CG...................................................................70  
ii.  
iii.  
Did Fakhry recommend Amaya to his clients while he was in  
possession of MNPI and, if so, was his conduct abusive of the  
capital market and / or does it engage an animating principle of the  
Act?....................................................................................71  
(a)  
(b)  
(c)  
ST and AI/ST..............................................................71  
TP and GP ..................................................................71  
MG............................................................................72  
Fielding...............................................................................72  
V.  
CONCLUSION..........................................................................................72  
REASONS AND DECISION OF HEATHER ZORDEL (DISSENTING IN PART)..................74  
VI.  
INTRODUCTION.......................................................................................74  
VII.  
KITMITTO DID NOT RECEIVE THE ALLEGED AMAYA MNPI ON APRIL 25 OR AT  
THE APRIL 29, 2014 MEETING...................................................................76  
VIII. STAFF DID NOT ESTABLISH ON A BALANCE OF PROBABILITIES THAT KITMITTO  
TIPPED VANNATTA, CHRISTOPHER AND GOSS.............................................80  
A.  
B.  
Kitmitto’s credibility........................................................................80  
There were other potential sources of the alleged Amaya MNPI.............82  
It is equally likely that Vannatta and Goss could have learned the  
alleged Amaya MNPI from other sources at the Aston Asset  
Management offices..............................................................82  
Timeline of available information relating to Amaya ...................84  
Publicly available information relating to Amaya demonstrates that  
it was an investment with potential for growth........................108  
Kitmitto did not tip Goss, Vannatta and Christopher with the alleged  
Amaya MNPI ...............................................................................109  
Donald (Alexander) Goss .....................................................109  
Steven Vannatta.................................................................111  
Christopher Candusso..........................................................113  
Trading volume is not a determinative factor....................................115  
Opportunity is not a determinative factor.........................................116  
Profitability is not a determinative factor .........................................117  
Adverse inferences.......................................................................117  
There was no allegation that Kitmitto engaged in insider trading.........119  
Conclusion ..................................................................................119  
C.  
D.  
E.  
F.  
G.  
H.  
I.  
IX.  
STAFF DID NOT ESTABLISH ON A BALANCE OF PROBABILITIES THE  
ALLEGATIONS LOWER DOWN ON THE TIPPING CHAIN OCCURRED ...............119  
A.  
Vannatta.....................................................................................119  
Staff breached the witness exclusion order.............................120  
Vannatta was not in a special relationship with Amaya.............121  
iv  
Vannatta’s insider trading allegations are not proven ...............122  
Vannatta did not tip his relatives...........................................124  
Vannatta did not mislead Staff..............................................125  
Vannatta did not conceal his trading from Aston Asset Management  
Compliance........................................................................128  
Conclusion.........................................................................129  
Christopher.................................................................................129  
Christopher’s credibility .......................................................129  
Evidence of opportunity is not conclusive ...............................129  
Christopher was not in a special relationship with Amaya..........130  
Christopher’s insider trading allegations are not proven............131  
Christopher did not tip Claudio with the alleged Amaya MNPI ....133  
Christopher did not mislead Staff ..........................................134  
Conclusion.........................................................................135  
Claudio.......................................................................................135  
Goss ..........................................................................................135  
Goss’s credibility.................................................................135  
Goss had an early interest in Amaya and this was not based on a  
tip from Kitmitto.................................................................136  
Goss was not in a special relationship with Amaya...................138  
Goss did not engage in insider trading, tipping and recommending  
........................................................................................140  
Conclusion.........................................................................146  
Fakhry........................................................................................146  
Fakhry’s credibility..............................................................146  
Fakhry was not in a special relationship with Amaya ................148  
Fakhry conducted his own research on Amaya and this was not  
based on a tip from Goss .....................................................148  
Fakhry’s insider trading, tipping and recommending allegations are  
not proven.........................................................................152  
Conclusion.........................................................................158  
Fielding ......................................................................................158  
B.  
C.  
D.  
E.  
F.  
X.  
CONCLUSION........................................................................................160  
v
REASONS AND DECISION OF THE MAJORITY (M. CECILIA WILLIAMS AND  
CRAIG HAYMAN)  
I.  
OVERVIEW  
[1]  
This proceeding involves allegations of insider tipping and trading in securities of  
Amaya Gaming Group Inc. (Amaya) based on material non-public information  
(MNPI) relating to Amaya’s acquisition of Oldford Group Limited (the  
Acquisition). Oldford Group Limited is a private company that was the parent  
company of the owner and operator of the PokerStars brand (PokerStars).  
[2]  
[3]  
Our analysis covers whether information about the Acquisition was MNPI. The  
Securities Act (the Act)1 prohibits certain individuals with MNPI (who are in a  
special relationship with the issuer the subject of the MNPI) from telling others  
about that information (tipping). Individuals with MNPI are also prohibited by the  
Act from trading shares with the informational advantage of knowing the MNPI.  
Staff alleges that beginning on April 25, 2014, Majd Kitmitto (Kitmitto) became  
aware of MNPI about Amaya. Staff further alleges that between April 25 and  
June 12, 2014 (the Relevant Period) MNPI was shared and insider tipping and  
trading occurred, namely:  
a.  
b.  
c.  
Kitmitto, while in a special relationship, informed Steven Vannatta  
(Vannatta), Christopher Candusso (Christopher) and Donald Alexander  
(Sandy) Goss (Goss) about the Amaya MNPI;  
Vannatta, while in a special relationship and in possession of Amaya  
MNPI, bought Amaya shares and, in turn, communicated the Amaya MNPI  
to certain family members who also bought Amaya shares;  
Christopher, while in a special relationship and in possession of Amaya  
MNPI, bought Amaya shares and, in turn, communicated the Amaya MNPI  
to his father, Claudio Candusso (Claudio) (Claudio and Christopher are on  
occasion referred to as the Candussos), who also bought Amaya shares  
while in a special relationship and in possession of Amaya MNPI;  
d.  
Goss, while in a special relationship and in possession of Amaya MNPI,  
bought Amaya shares and, in turn, communicated the Amaya MNPI to his  
clients John Fielding (Fielding) and FH2, and his assistant Frank Fakhry  
(Fakhry);  
e.  
f.  
Fielding bought Amaya shares while in a special relationship and in  
possession of Amaya MNPI;  
Fakhry, while in a special relationship and in possession of Amaya MNPI,  
bought Amaya shares and, in turn, communicated the Amaya MNPI to his  
relatives, CG and NG, and a client, CB; and  
g.  
Goss and Fakhry, while in a special relationship and in possession of  
Amaya MNPI, recommended Amaya to certain of their clients.  
[4]  
Staff also alleges that Vannatta concealed his trading in Amaya from his  
employer and misled Staff, and that Christopher misled Staff.  
1
RSO 1990, c S.5 (the Act)  
In order to protect the privacy of investors, their names and personal information have been  
2
anonymized in these reasons.  
1
   
[5]  
For the reasons set out below we find that Staff has established that:  
a.  
Kitmitto tipped Vannatta, Christopher and Goss with the Amaya MNPI in  
breach of s. 76(2) of the Act;  
b.  
Vannatta:  
traded Amaya shares while in possession of the Amaya MNPI  
contrary to s. 76(1) of the Act;  
tipped certain family members with the Amaya MNPI in breach of s.  
76(2) of the Act;  
misled Staff contrary to s. 122(1)(a) of the Act; and  
concealed his trading from his employer, which conduct engages an  
animating principle of the Act and is abusive;  
c.  
Christopher traded Amaya shares while in possession of the Amaya MNPI  
contrary to s. 76(1) of the Act;  
d.  
Goss:  
traded Amaya shares while in possession of the Amaya MNPI  
contrary to s. 76(1) of the Act;  
tipped Fakhry with the Amaya MNPI in breach of s. 76(2) of the  
Act; and  
recommended Amaya to fifteen of his clients, while in possession of  
the Amaya MNPI, which behaviour engages an animating principle  
of the Act and is abusive;  
e.  
Fakhry:  
traded Amaya shares while in possession of the Amaya MNPI  
contrary to s. 76(1) of the Act;  
tipped his relative NG and his client CB with the Amaya MNPI in  
breach of s. 76(2) of the Act; and  
recommended Amaya to five of his clients, while in possession of  
the Amaya MNPI, which behaviour engages an animating principle  
of the Act and is abusive.  
[6]  
We find, for the reasons set out below, that Staff has not established that:  
a.  
Christopher:  
tipped Claudio with the Amaya MNPI contrary to s. 76(2) of the  
Act; or  
misled Staff contrary to s. 122(1)(a) of the Act;  
b.  
c.  
Claudio traded Amaya shares while in possession of the Amaya MNPI  
contrary to s. 76(1) of the Act;  
Goss tipped:  
Fielding with the Amaya MNPI contrary to s. 76(2) of the Act; or  
his client FH with the Amaya MNPI contrary to s. 76(2) of the Act;  
2
d.  
e.  
Fielding traded Amaya shares while in possession of the Amaya MNPI  
contrary to s. 76(1) of the Act; or  
Fakhry tipped his relative CG with the Amaya MNPI contrary to s. 76(2) of  
the Act.  
II.  
BACKGROUND  
[7]  
The insider tipping and trading allegations relate to a group of individuals most  
of whom knew each other and had close relationships. A description of the  
individuals and their relationships during the Relevant Period are set out below.  
A.  
Kitmitto  
[8]  
[9]  
Kitmitto was a senior analyst at Aston Hill Asset Management Inc. (Aston Asset  
Management). He covered securities in the technology and gaming sectors.  
Aston Asset Management’s parent company was Aston Hill Financial Inc. (Aston  
Financial).  
Kitmitto was an access person at Aston Asset Management. Aston Financial’s  
personal trading policy, which applied to all employees, officers and directors of  
Aston Financial and its affiliates and subsidiaries, defined “access person” as  
someone who has regular access to non-public information regarding  
transactions and compositions of the funds managed by Aston Asset  
Management or one of its affiliates.  
B.  
Vannatta  
[10] Vannatta, during the Relevant Period, was a portfolio manager at Aston Asset  
Management who managed a global resource and infrastructure fund. He shared  
an office with Kitmitto. Vannatta was also an access person. Vannatta was  
registered with the Ontario Securities Commission (the Commission) as an  
Advising Representative, Portfolio Manager, Investment Fund Manager and  
Exempt Market Dealer.  
C.  
Christopher Candusso  
[11] During the Relevant Period Christopher and Kitmitto were roommates, living in a  
condominium owned by Claudio. They had met as university students in 2004.  
Christopher knew that Kitmitto was an analyst at Aston Asset Management who  
covered the gaming sector.  
D.  
Claudio Candusso  
[12] Claudio is Christopher’s father. During the Relevant Period, Claudio practiced  
dentistry in Sudbury, Ontario. Claudio and Christopher have a close relationship  
and during the Relevant Period were in regular contact. Claudio and Kitmitto  
were friends during the Relevant Period, and Claudio knew that Kitmitto worked  
at Aston Asset Management.  
E.  
Goss  
[13] Goss has been registered with the Commission since 1993. Goss, during the  
Relevant Period, was an investment advisor at Aston Hill Securities (Aston  
Securities), an affiliate of Aston Financial whose office was located next to  
Aston Asset Management. Aston Securities and Aston Asset Management shared  
a common reception.  
3
           
F.  
Fielding  
[14] Fielding was a significant client of Goss at Aston Securities in 2014. He had been  
Goss’s client at two previous brokerage firms since 2001. His investment  
company is Dark Bay International Ltd. (Dark Bay). Fielding was a director of  
Aston Financial from February 2014 to August 2016. Fielding was introduced to  
Aston Financial through Goss.  
G.  
Fakhry  
[15] Fakhry was Goss’s assistant at Aston Securities and at their previous employer.  
Fakhry joined Aston Securities as an investment advisor in September 2013, two  
weeks after Goss. In April 2014, Fakhry had a small book of business with a total  
of eight clients. He has been registered with the Commission since 1999.  
III. PROCEDURAL AND EVIDENTIARY ISSUES  
[16] During the hearing the parties raised a variety of procedural and evidentiary  
issues. Our reasons for our rulings on those issues are set out below.  
A.  
Motion to strike references to transcripts of compelled testimony  
of certain respondents in the George Affidavit  
[17] The parties agreed that the bulk of the evidence from Staff’s investigator  
witnesses would be by affidavit. After Staff served the affidavits, the  
respondents, Goss, Fielding, Kitmitto and Fakhry (the Moving Respondents)  
brought motions to strike portions of two affidavits on the basis that those  
portions referred to compelled evidence. The relief sought by these respondents  
includes striking references to compelled evidence from Vannatta, Christopher  
and Claudio. Staff subsequently advised that it was no longer relying on one of  
the affidavits, so the only affidavit at issue is the affidavit of Christine George.  
We refer to these motions, collectively, as the Compelled Evidence Motion.  
[18] The central issue on the Compelled Evidence Motion was when Staff may tender  
the compelled evidence. Staff sought to tender the compelled evidence through  
the affidavits. In essence, at the beginning of Staff’s case. The Moving  
Respondents submit that Staff may only tender the compelled evidence at the  
end of Staff’s case. Further, Staff may only do so if the respondent whose  
compelled evidence Staff intends to tender has chosen not to testify, which  
choice, they submit, the respondent should not be forced to make until the end  
of Staff’s case.  
[19] We granted the Compelled Evidence Motion to strike out the parts of the George  
affidavit that refer to the compelled evidence of the respondents, without  
prejudice to Staff to use the compelled evidence as follows:  
a.  
the compelled evidence of a respondent may be used to cross-examine  
that same respondent; and  
b.  
if a respondent does not testify, then Staff may tender portions of that  
respondent’s compelled evidence as part of Staff’s case in-chief before the  
close of Staff’s case.  
[20] The Moving Respondents submit that Staff cannot rely on compelled evidence  
given by a respondent who will testify (or has yet to make a decision to testify)  
and who does not face an allegation of misleading Staff. However, the Moving  
Respondents acknowledge that Staff may rely on compelled evidence in the  
4
       
following circumstances: (1) if the respondent testifies at the hearing, to  
impeach that respondent on cross-examination, or (2) if the respondent does not  
testify, to tender that testimony as against that respondent at the conclusion of  
its case, if permitted to do so by the Panel.  
[21] The Commission has the power under the Act to compel evidence. Section 11  
allows the Commission by order to appoint one or more persons to investigate  
and, under s. 13, an investigator has the power to summon and enforce the  
attendance of any person and to compel him or her to testify under oath or  
otherwise and produce documents and other things. Investigation interviews  
conducted under s. 13 are transcribed. The transcripts are referred to as  
compelled evidence. Compelled evidence may be produced at a proceeding  
under the Act (s. 17(6)(a)). Compelled evidence is a form of hearsay, which is  
admissible in Commission proceedings.3  
[22] The Moving Respondents submit that the Panel has discretion whether to admit a  
respondent’s compelled evidence,4 but that it may only be admitted in a manner  
that is not unfair to that respondent.5 The Moving Respondents submit that the  
principles of natural justice and procedural fairness require that, as they are not  
alleged to have misled Staff, they have the right to know the case against them  
and the right to have an adequate opportunity to present their respective cases.6  
If Staff is permitted to rely on their compelled evidence as part of its case in-  
chief, the Moving Respondents submit, they will be unfairly deprived of that  
opportunity.  
[23] Staff submits that allowing the compelled evidence to be included in the George  
Affidavit does not create any unfairness to the Moving Respondents; both a  
respondent’s oral evidence and compelled evidence have been part of the  
evidentiary record in other Commission proceedings. In addition, having the  
compelled evidence as part of the evidentiary record neither deprives a  
respondent of the right to decide whether to testify nor forces a respondent to  
testify.  
[24] The Moving Respondents can wait to decide whether to give oral evidence until  
Staff’s case against them is complete. We agree in these circumstances that  
including information from the compelled evidence in the George Affidavit may  
give rise to a situation where a Moving Respondent feels their own oral evidence  
is required to provide context or clarity, pre-empting their right to decide at the  
end of Staff’s case whether to testify.  
[25] The Moving Respondents submit that Staff’s proposal to refer to compelled  
evidence in the George Affidavit is contrary to previous decisions of the  
Commission and the Divisional Court,7 and contrary to common practice before  
the Commission. The Moving Respondents submit that the “Agueci procedure” is  
the established practice for the Commission. In Agueci CT the Commission  
decided that a respondents compelled evidence could only be used to cross-  
3
Agueci (Re), 2013 ONSEC 45, (2013) 36 OSCB 12133 (Agueci CT) at para 113  
Agueci CT at para 130; Donald (Re), 2012 ONSEC 26, (2012) 35 OSCB 7383 (Donald) at para 33  
Agueci CT at para 127  
Northern Securities Inc. (Re), 2013 ONSEC 48, (2014) 37 OSCB 161 at para 71  
4
5
6
7
Donald at para 34; Agueci CT at paras 131 and 139; Fiorillo v. Ontario Securities Commission, 2016  
ONSC 6559 (Div. Ct.) at para 114; Hutchinson (Re), 2019 ONSEC 36, (2019) 42 OSCB 8543  
(Hutchinson) at para 43  
5
examine that respondent and, where a respondent declines to testify, Staff could  
enter portions of that respondent’s compelled evidence at the end of Staff’s  
case.8  
[26] In addition, the Moving Respondents submit that Agueci CT determined Staff  
may only tender portions of the compelled evidence at the end of Staff’s case in  
order to avoid unfairness that might come from Staff splitting its case.9  
[27] Staff submits that the “Agueci procedure” is not the only approach for admitting  
compelled evidence, as the Commission has adopted other procedures, both  
before and after the Agueci CT decision. Staff cited two post-Agueci CT decisions  
supporting the premise that compelled evidence can be provided in affidavit  
evidence as part of Staff’s case in-chief. In our view, these cases can be  
distinguished from the present case.  
[28] In Meharchand10, the Panel admitted into evidence portions of the compelled  
evidence that were contained in the affidavits filed by Staff and referred to  
otherwise in the course of the hearing.11 The respondent objected to the use of  
compelled evidence on the basis that the testimony was compelled, and the  
respondent had thought that the purpose of the testimony was only to determine  
whether enforcement proceedings should be brought, not for use as evidence. In  
Meharchand, the Commission heard different arguments than those brought  
forth in the present case and found it appropriate to admit the compelled  
evidence.  
[29] In addition, the process leading up to the use of affidavit evidence and compelled  
evidence was different in Meharchand. Originally, the Meharchand merits hearing  
was to proceed as a written hearing and the expectation was that this case  
would be based on affidavit evidence. Oral evidence was not contemplated until  
later in the process after the affidavit evidence was already prepared and when  
the written hearing was converted back to an oral hearing.  
[30] In Bradon Technologies Ltd.12, the parties all agreed that the compelled evidence  
of the respondents would be exhibits even though one of the respondents also  
testified.13 In the present case, there was no agreement between the parties on  
marking the compelled evidence as exhibits as part of Staff’s case in-chief.  
[31] Agueci CT, Staff submits, does not stand for the proposition that compelled  
evidence may only be entered at the end of Staff’s case; rather it supports the  
proposition that all of Staff’s case be in before a respondent’s case begins. In  
Staff’s submission, this is exactly what they are doing.  
[32] There is no one procedure under which compelled evidence may be admitted. We  
have discretion to determine how and when compelled evidence may be  
admitted in order to ensure a fair and efficient hearing.14  
[33] We do not accept the Moving Respondentss position that the type of allegations  
in a proceeding should play a significant factor in our decision about when and  
8
Agueci CT at paras 131 and 139  
Agueci CT at para 131  
2018 ONSEC 51, (2018) 41 OSCB 8434 (Meharchand)  
Meharchand at para 55  
2015 ONSEC 26, (2015) 38 OSCB 6763 (Bradon Technologies)  
Bradon Technologies at para 50  
Agueci CT at paras 130-131  
9
10  
11  
12  
13  
14  
6
how compelled evidence may be used in a hearing and admitted by a Panel. We  
do not find that it is appropriate to restrict the Commission’s discretion in that  
manner. How and when compelled evidence should be used at a hearing is the  
discretion of each panel based on their determination of what is appropriate in  
the circumstances to achieve a fair and efficient hearing.  
[34] Staff states that the compelled evidence included in the George Affidavit is  
“relevant background information” and introducing it at the beginning will lead to  
an orderly and efficient presentation of Staff’s case. While it may be convenient  
for Staff to introduce background information through references to the  
compelled evidence in the George Affidavit it is not necessary. That evidence is  
otherwise available to Staff in documentary evidence gathered during the  
investigation, which can be referred to in the George Affidavit without any  
reference to the compelled evidence.  
[35] To conclude, consistent with the Commission’s decision in Agueci CT, our  
decision to strike references to the compelled evidence from the George Affidavit  
was without prejudice to Staff’s ability to use the compelled evidence of a  
respondent to cross-examine that same respondent and to tender portions of the  
compelled evidence of a respondent that chooses not to testify.  
[36] We also did not permit Staff to use the compelled evidence of one respondent  
against a different respondent. Specifically, during Staff’s cross-examination of  
Kitmitto, Staff sought to use Fakhry’s compelled evidence to highlight a  
difference in understanding between Kitmitto and Fakhry regarding Kitmitto’s  
role at Aston Asset Management. Staff was aware that Fakhry intended to  
testify.  
[37] We ruled that Staff’s proposal to put Fakhry’s compelled evidence to Kitmitto  
was inconsistent with our earlier ruling that the compelled evidence of a  
respondent could only be used to cross-examine that same respondent.  
B.  
Request to include entire compelled evidence of the Candussos  
and Vannatta  
[38] Our ruling on the Compelled Evidence Motion provided that, should a respondent  
choose not to testify, Staff may tender portions of that respondent’s compelled  
evidence as part of Staff’s case in-chief before the close of Staff’s case.  
[39] Just prior to Staff closing its case and upon reviewing the excerpts of the  
compelled evidence that Staff intended to tender as part of their case should the  
respondents not testify, the Candussos and Vannatta advised that they did not  
intend to testify and asked that their entire compelled evidence, rather than  
excerpts of them, be included as evidence. The Candussos and Vannatta submit  
that their entire compelled evidence is required to ensure that we are not  
missing any potentially probative evidence and context.  
[40] We ruled that the Candussoss and Vannatta’s full compelled evidence may not  
be entered into evidence. With respect to providing context, we recognized that  
other excerpts may be relevant in addition to the excerpts referred to by Staff,  
and we encouraged the parties to come to an agreement about any additional  
contextual excerpts.  
[41] Following this ruling, Christopher and Claudio decided to give oral testimony and  
Vannatta decided not to testify.  
7
 
[42] Staff submits that the Panel’s ruling on the Compelled Evidence Motion applied to  
all of the respondents. Therefore, what the Candussos and Vannatta are seeking  
is a revocation or variation of the Panel’s previous ruling under s. 144 of the Act.  
[43] A s. 144 order is only granted when it is not prejudicial to the public interest.  
Staff submits that such an order should not be granted to cater to the  
respondents’s shifting positions. Staff submits that the Candussos and Vannatta  
benefited from the arguments made by the Moving Respondents on the  
Compelled Evidence Motion and from the Panel’s resulting decision and should  
not now be allowed to change their position to achieve a different outcome.  
[44] According to the Candussos and Vannatta, the original Compelled Evidence  
Motion was about the timing of the introduction of the transcripts and not the  
content. The new issue raised is whether the Panel receives either the entire  
transcript or enough of it such that the Panel is not missing any potentially  
probative evidence and context. In addition, they submit, the appropriate time  
for this issue to be addressed is when the respondents must make their election  
whether to testify. They are not, therefore, foreclosed from making this request  
at a later stage in the hearing by virtue of not having identified this as an issue  
at the time the Compelled Evidence Motion was argued.  
[45] The Candussos and Vannatta are not foreclosed from raising this issue because  
they did not identify it at the time of the Compelled Evidence Motion. The issue  
before us on the Compelled Evidence Motion was Staff’s use of excerpts or  
paraphrases from the transcripts in the George Affidavit filed at the opening of  
Staff’s case. We accept that Christopher, Claudio or Vannatta would not have  
turned their minds at that stage of the merits hearing, without having heard  
Staff’s case against them, to whether they would choose to testify, and if they  
were to elect not to testify, what excerpts from their transcripts might be  
entered as part of Staff’s case.15  
[46] We do not agree that a s. 144 order is required in this instance. We do not  
consider this request to constitute a variation of our ruling on the Compelled  
Evidence Motion. A panel may hear submissions on a different issue related to  
the same evidence or category of evidence that had been the subject of an  
earlier ruling by the panel during the same merits hearing.  
[47] The Candussos and Vannatta submit that including their entire compelled  
evidence in Staff’s evidence is a matter of procedural fairness. Including only  
excerpts could result in an incomplete record, which could result in an unfair  
outcome. The Candussos and Vannatta argue that Staff’s proposed excerpts do  
not include material evidentiary points, background information that is necessary  
to support proper inferences and that Staff has excluded certain denial  
statements made by the Candussos and Vannatta.  
[48] By excluding such information, the Candussos and Vannatta argue that Staff has  
usurped the Panel’s discretion by preventing the Panel from considering the  
totality of the compelled evidence. Failure to include the entire compelled  
evidence could, therefore, force one or all of Christopher, Claudio or Vannatta to  
testify to clarify an incomplete record, contrary to their best interests.  
15  
It was only at the end of the day on October 30, 2020 that Staff provided the respondents with the  
excerpts of the compelled transcripts that they intended to rely on if a respondent decided not to  
testify.  
8
[49] Staff submits that the rationale for admitting inculpatory portions of hearsay  
statements is that, unlike self-serving hearsay statements, inculpatory  
statements are inherently reliable. In addition, Staff submits that allowing the  
entire compelled evidence to be introduced would result in a violation of Staff’s  
procedural rights. Our ruling on the Compelled Evidence Motion had, Staff  
argues, a significant impact on how Staff prepared and presented their case.  
[50] The Candussos and Vannatta submit that the Commission has allowed a  
respondent’s entire compelled evidence to be introduced as part of Staff’s case in  
other cases, including in Agueci CT, Hutchinson and Azeff Merits.  
[51] We do not find the Commissions decisions referred to by the Candussos and  
Vannatta of assistance in our analysis. In Agueci CT, the panel did not hear  
submissions on the issue of whether the whole compelled evidence should be  
introduced by Staff as opposed to excerpts. In Hutchinson, the entire compelled  
evidence of an absent respondent was introduced into evidence because the  
Panel found that in the specific circumstances the compelled evidence of the  
absent respondent was potentially relevant to matters in issue for the  
respondents that were present.16 This is not the situation before us. In Azeff  
Merits, excerpts of compelled evidence were admitted for two of the  
respondents, and the compelled evidence for another respondent was read into  
evidence.17 The decision does not specify if, in the latter case, the entire  
compelled evidence was admitted in full or just excerpts were read in. As such  
this case was of limited assistance in our analysis.  
[52] In addition, the Candussos and Vannatta submit that Staff’s intent to file only  
inculpatory excerpts of their transcripts is contrary to the “whole statement”  
rule. In the criminal context, the “whole statement” rule is that if the Crown  
plans to introduce an accused’s statement the entire statement must be  
introduced as evidence, the good and the bad being admitted for their truth.  
Once introduced the “whole statement” is admissible for any purpose.18  
[53] There is no reason, the Candussos and Vannatta submit, to depart from the  
criminal law context approach in an administrative law setting. The approach is  
particularly apt in the securities law context, they submit, where respondents are  
compelled to attend an interview with limited notice of the issues and no  
documentary disclosure.  
[54] Staff submits that the position of the Moving Respondents on the Compelled  
Evidence Motion was that the “Agueci procedure” was the proper procedure to be  
followed, and only midway through the hearing did Staff become aware, for the  
first time, that the Candussos and Vannatta take the position that a criminal law  
principle, the whole statement principle, applies to the Commission. Staff  
submits that different considerations apply in a criminal law context, i.e. the  
right to remain silent and the right against self-incrimination, that are not  
applicable in an administrative law setting. Staff submits that the Mallory  
decision, relied on by the Candussos and Vannatta, is rooted in the right to  
16  
Hutchinson at para 53  
Azeff (Re), 2015 ONSEC 11, (2015) 38 OSCB 2983 (Azeff Merits) at paras 26 and 30  
R v Mallory, 2007 ONCA 46 at paras 203-205  
17  
18  
9
remain silent, whereas under the Statutory Powers Procedure Act19 (SPPA) a  
respondent has no such right.  
[55] Commission proceedings, Staff submits, are more akin to civil litigation. The  
Rules of Civil Procedure20 specifically provide for a party to lead portions of  
statements by adverse parties that favour their case.21 In that instance, an  
adverse party may request, under Rule 31.11(3), that the judge direct the  
introduction of other evidence that qualifies or explains the part that had been  
introduced.22 Staff submits that these rules make clear that the “whole  
statement” rule is not applicable in civil litigation and, similarly, should not be  
incorporated into administrative law proceedings.  
[56] Also, Staff submits that case law has clarified that there are limits to the  
evidence that an opposing party may introduce that “qualifies or explains” the  
portions of statements being proffered. In Anderson v St. Jude Medical, Inc.,23  
the Court determined that Rule 31.11(3) permits the opposing party to request  
that additional evidence be read in. However, neither party has an unqualified  
right to read in evidence and the opposing party does not have the right to  
control the content of the adverse party’s evidence. The Court explained that if  
the evidence read in fairly represents an answer to the question asked, no  
qualification or explanation will be necessary or permitted.24  
[57] Staff also refers to the decision in Graat v Adibfar25 where the court cautioned  
about being aware of attempts to misuse Rule 31.11(3), "including seeking to  
use the qualifying read-in provision to avoid taking the stand to testify at trial”.26  
[58] Lastly, Staff submits that including the Candussos and Vannatta’s entire  
compelled evidence effectively turns these respondents into “witnesses” that  
aren’t actually testifying in person and would deny Staff their right to cross-  
examine these respondents under s. 10.1 of the SPPA. Whereas if the Candussos  
and Vannatta provided affidavit evidence, Staff would be able to cross-examine  
them. The Candussos and Vannatta are the key and only witnesses for their own  
cases and their evidence goes to central issues in the case against each of them.  
Staff submits that the credibility and veracity of the evidence of the Candussos  
and Vannatta are squarely at issue and if they have evidence they wish to lead  
(even if its in their compelled evidence), then cross-examination is “required for  
a full and fair disclosure of all matters relevant to the issues”.  
[59] While we note in a few rare instances compelled evidence in its entirety has been  
admitted as evidence at the Commission either on consent or due to the specific  
circumstances of that case, the “whole statement” rule from the criminal law  
context is not, in our view, generally applicable to Commission proceedings. The  
criminal law principles of the right to remain silent and the right against self-  
incrimination are not applicable in an administrative proceeding setting.27 As  
19  
RSO 1990, c S.22  
RRO 1990, Reg 194 (the Civil Rules)  
Civil Rules, r 31.11  
Civil Rules, r 31.11(3)  
2010 ONSC 1824, [2010] O.J. No. 6028 (Anderson)  
Anderson at paras 14, 19 and 20  
2013 ONSC 1690, [2013] O.J. No. 1336 (Graat)  
Graat at para 10  
20  
21  
22  
23  
24  
25  
26  
27  
Agueci CT at paras 118-120  
10  
recognized by the Supreme Court of Canada, a securities commission proceeding  
is regulatory in nature and not criminal.28  
[60] The risk of an incomplete record and an unfair outcome as a result are  
appropriately addressed through the adverse party’s ability to identify other  
excerpts that explain or qualify those excerpts put forward by Staff for inclusion  
in the record. This is exactly the process that Staff proposed to follow. If, after  
reviewing the excerpts Staff proposed to introduce, any of the Candussos and  
Vannatta had any concerns about insufficient inclusion of explanatory or  
qualifying excerpts they would have been able to raise those concerns with the  
Panel.  
[61] While a compelled interview under s. 13 of the Act involves questioning of the  
interviewee by a Commission investigator, it is not the equivalent of cross-  
examination of a respondent by Staff during a merits hearing or by other parties  
adverse in interest who are not present at that interview. We agree that in these  
circumstances requiring Staff to include the Candussos’s and Vannatta’s entire  
compelled evidence would go beyond providing context and clarification to  
statements relied on by Staff and instead enable them to provide evidence that  
could not be tested on cross-examination.  
C.  
Objection to the admissibility of certain phone records as evidence  
[62] Goss challenged the admissibility of certain phone records tendered by Staff as  
evidence on the basis that their authenticity was not established and they are  
not the best evidence of what Staff seeks to prove (the Contested Records).29  
Kitmitto, Fielding and Fakhry adopted Goss’s position and submissions on the  
challenge.  
[63] The central issue is whether the requirements of the Ontario Evidence Act30  
(OEA) in s. 34.1 as to authentication and best evidence must be met for the  
Contested Records to be admissible in this proceeding. We decided, for the  
reasons below, that the Contested Records were admissible.  
[64] Goss submits that s. 34.1 of the OEA is a mandatory prerequisite to the  
admission of electronic records and governs admissibility of these records in a  
Commission proceeding. Goss submits that Staff has failed to meet those  
requirements as Staff did not file any evidence from the creators of the  
Contested Records or anyone else who had custody of them before they were  
provided to Staff, despite the opportunity to do so. Therefore, Goss submits that  
the Contested Records are inadmissible.  
[65] The statutory scheme created by s. 34.1 of the OEA for the admission of  
electronic records applies, in Goss’s submission, by virtue of s. 15(3) of the SPPA  
which addresses conflicts between the SPPA and other statutes.  
[66] Subsection 15(3) of the SPPA provides that nothing in s. 15(1) of the SPPA,  
which grants broad discretionary power to the Commission to admit relevant  
documentary evidence, “overrides the provisions of any Act expressly limiting  
28  
British Columbia (Securities Commission) v Branch, [1995] 2 SCR 3 at para 34, citing Pezim v.  
British Columbia (Superintendent of Brokers), [1994] 2 SCR 557 at 589  
29  
The specific Document IDs for these phone records are OSC0002141; BLA1000699; BLA1000700;  
BLA1000701; BLA1000702; BLA1000703; BLA1000704; BEL0000007; ROG0000031; ROG0000032;  
ROG0000050; and ROG0000217.  
30  
RSO 1990, c E.23  
11  
 
the extent to or purposes for which any … documents or things may be admitted  
or used in evidence in any proceeding.” Goss submits that the OEA is such an  
Act.  
[67] Staff submits that the admissibility of evidence, including electronic records, in  
Commission proceedings is governed by s. 15(1) of the SPPA, which is designed  
to avoid the technical rules of evidence that would apply in a court proceeding.  
[68] By analogy, Staff refers to the Ontario Court of Appeal decision in EllisDon Corp v  
Ontario Sheet Metal Workers’ and Roofers’ Conference31 on the issue of whether  
the parties in an administrative proceeding before the Ontario Labour Relations  
Board had to comply with the technical requirements of the business records rule  
in s. 35 of the OEA. The Court of Appeal held that the rules for admitting  
evidence in the Ontario Labour Relations Act, 199532 applied, not the OEA Rules.  
[69] The wording in the Ontario Labour Relations Act, 1995, Staff submits, closely  
resembles that in s. 15(1) of the SPPA in that it allows the Ontario Labour  
Relations Board to “accept such oral or written evidence as it in its discretion  
considers proper, whether admissible in a court of law or not.”33 The Court of  
Appeal adopted the Divisional Court’s interpretation of this provision in the same  
matter: these provisions mean exactly what they say. Boards and arbitrators  
are not bound by the rules of evidence and thus have a broad discretion  
regarding the admissibility of evidence.34  
[70] Further, Staff submits, s. 15(3) of the SPPA should not be interpreted to mean  
that s. 34.1 of the OEA applies to the Contested Records. Subsection 15(3) of  
the SPPA operates to preserve limitations on admissibility that are contained in  
other legislation. Section 34.1 of the OEA is not a limitation. Rather it is an  
enabling provision which provides a means to authenticate electronic records  
despite common law rules of evidence which might otherwise be a bar to  
admission of such records in a court. Subsections 34.1(5) and (5.1) of the OEA,  
Staff submits, modify the best evidence rule to clarify and streamline the process  
for admitting these records and s. 34.1(7) creates a presumption of integrity  
where certain evidence is established.  
[71] In addition, Staff submits, s. 34.1(2) of the OEA provides that s. 34.1 does not  
displace the SPPA framework. Subsection 34.1(2) states that the section does  
not modify any statutory rule relating to the admissibility of records, except the  
rules relating to authentication and best evidence. Staff submits that s. 15(1) of  
the SPPA is a statutory rule relating to the admissibility of records; it does not  
establish a protocol for authenticating records.  
[72] Section 34.1 of the OEA does not apply to the Contested Records at issue in this  
proceeding. We adopt the conclusion of the Court of Appeal in EllisDon that s. 15  
of the SPPA means what it says. The Commission, under s. 15 of the SPPA, may  
admit any document, whether admissible as evidence in court, that is relevant to  
the subject matter of the proceeding.  
[73] The Contested Records are relevant to this proceeding. Staff’s allegations are  
that certain of the respondents tipped other respondents about the Amaya MNPI  
31  
2014 ONCA 801 (EllisDon)  
SO 1995, c 1, Sch A  
EllisDon at para 32  
EllisDon at para 33  
32  
33  
34  
12  
and that certain of the respondents also advised clients to trade Amaya while in  
possession of the Amaya MNPI. Therefore, communications, including records of  
telephone conversations, among the respondents and between certain of the  
respondents and their clients are relevant to this proceeding.  
[74] Staff’s evidence, that the Contested Records were provided in response to Staff’s  
requests made to identified providers (Rogers, Bell and Aston Securities),  
relating to identified individuals (Kitmitto, Goss, Fielding and Fakhry), covering  
identified time periods within the Relevant Period, was not challenged in cross-  
examination. We, therefore, exercise our broad discretion under s. 15 of the  
SPPA to admit the Contested Records into evidence.  
[75] Goss submits that the Contested Records are unreliable because of some  
discrepancies between the Contested Records. Those discrepancies include a call  
appearing on an account summary but not on an account invoice, a call between  
Fakhry and Goss on a specific date that is reflected as lasting a different period  
of time on their respective records, two calls from Fielding to Goss that overlap  
in time. We conclude that the identified discrepancies do not make the entire  
records unreliable. None of the issues highlighted by Goss involved a record that  
was material to any of our findings.  
D.  
Confidentiality order  
[76] During the hearing, confidentiality issues were raised with respect to certain  
exhibits. We noted that exhibits 209 and 210 contained Fakhry’s medical  
information and we asked the parties to consider whether those exhibits should  
be confidential and whether there were other confidentiality concerns that had to  
be addressed. The parties were instructed to identify any exhibits over which  
they sought a confidentiality order, provide copies of any proposed redacted  
exhibits and provide further written submissions in support of the confidentiality  
order sought. Staff consented to the reductions sought.  
[77] Kitmitto, the Candussos, Goss and Fielding sought the redaction of personal  
information for themselves, their families and their clients in exhibits including  
home addresses, personal phone numbers, bank account and trading account  
numbers, bank branch addresses, social insurance numbers, driver’s license  
numbers, dates of birth and signatures on the basis that this information  
exposed them and their families and/or their clients to the risk of identity theft  
and/or fraud. These respondents submitted that redacting this personal  
information and using overlay text describing generally the redacted content  
allows the reader to understand the nature of the redacted content, while  
balancing the competing interests of the open court principle and the  
respondents’s privacy interests.  
[78] In addition to the confidentiality request relating to the two exhibits containing  
Fakhry’s medical information, Fakhry also sought the redaction of social  
insurance numbers, addresses, telephone numbers, and bank account and  
trading account numbers of individuals who were not parties to this proceeding  
in seven different exhibits. These documents were adduced as part of Fakhry’s  
case and did not relate at all to the other respondents.  
13  
 
[79] In our view, the relief sought was appropriate and we issued our order on June  
7, 2021.35  
[80] Under Rule 22(4) of the Rules and subsection 2(2) of the Tribunal Adjudicative  
Records Act, 201936, a Panel may order an adjudicative record to be kept  
confidential, if it determines that “intimate financial or personal matters or other  
matters contained in the record are of such a nature that the public interest or  
the interest of a person served by avoiding disclosure outweighs the desirability  
of adhering to the principle that the record be available to the public.”37  
[81] With respect to the medical information, the Commission has previously  
acknowledged that disclosure of medical information may infringe on privacy and  
avoiding the disclosure of those medical specifics which are not relevant to the  
proceeding outweighs the desirability that the medical information be made  
available to the public.38 Therefore we ordered that exhibits 209 and 210 be  
marked as confidential.  
[82] We also find that the redactions requested were appropriate. The redactions  
balanced the principle of transparency and risk of harm, avoiding the disclosure  
of intimate financial and personal matters for both non-parties and certain of the  
respondents.  
[83] With respect to the redactions relating to non-parties, the redactions were  
consistent with the approach set out in s. 3 of the Commission’s Practice  
Guideline which requires parties to use reasonable efforts to limit the disclosure  
of personal information. We also note that Staff had already redacted much of  
this information beforehand, but some respondents identified instances where  
redactions were missed.  
[84] With respect to redactions relating to the personal information of Kitmitto,  
Christopher, Claudio, Goss and Fielding, in this specific case we were persuaded  
by the concerns raised with respect to the risk of identity theft and/or fraud and  
we find that the objective of transparency is adequately served by having the  
personal information redacted with overlay text to explain the nature of the  
redaction. We note that Fakhry did not request redactions related to his own  
personal information. The redactions requested by Fakhry related only to  
personal information of non-respondents and Staff consented to the redactions  
not having overlay text as the redactions were not relevant to the allegations.  
[85] Therefore, we ordered that the exhibits and document IDs listed in Appendix A of  
our June 7, 2021 Order be marked as confidential and only redacted versions are  
available to the public.  
E.  
Breach of the witness exclusion order  
[86] At the outset of the hearing we made an oral order excluding all witnesses,  
including Staff’s witnesses, from attending the hearing. We also issued a caution  
to all witnesses that, after testifying, they were not to speak with any other  
witnesses about their testimony. Vannatta takes the position that Staff breached  
the witness exclusion order and this prejudiced him.  
35  
(2021) 44 OSCB 4953  
SO 2019, c 7, Sch 60 (TARA)  
TARA, s 2(2)(b)  
36  
37  
38  
Debus (Re), 2020 ONSEC 20, (2020) 43 OSCB 6577 at para 13  
14  
 
[87] The purpose of a witness exclusion order is to preserve a witness’s testimony in  
its original state and prevent a witness from tailoring their evidence.39 Such  
orders ensure that the witness does not hear the evidence of other witnesses  
before it is their turn to testify. This in turn ensures that a witness does not  
change their story or is better able to anticipate, and thereby reduce the  
effectiveness of, the cross-examination based on hearing what was discussed at  
the hearing with other witnesses.40  
[88] Vannatta submits that Staff breached the witness exclusion order when  
conducting a pre-hearing preparation of Aston Asset Management’s Compliance  
Officer, Rnjak, on October 20, 2020. Prior to that date Staff’s lead investigator,  
George, had testified and had been cross-examined by Vannatta. Vannatta  
alleges that some of George’s testimony was communicated to Rnjak.  
[89] At the hearing, Staff had initially taken the position that the handwriting at the  
top of the transaction histories for Vannatta’s TFSA and RRSP accounts was  
Vannatta’s. During George’s cross-examination, Vannatta raised the issue of  
whose handwriting was on the transaction histories. George testified that she  
acknowledged that the handwriting looked different from Vannatta’s handwriting  
on other documents and that this could be clarified with Rnjak when he testifies  
as it was possible that he may have printed Vannatta's name on the top of the  
document.  
[90] Subsequent to George’s cross-examination, on October 20, 2020, Staff held a  
preparation meeting with Rnjak. After this meeting, on October 20, 2020, Staff  
emailed Vannatta to inform him that Rnjak would testify that the handwriting on  
Vannatta’s TFSA and RRSP transaction histories was Rnjak’s. This was a new  
fact.  
[91] Vannatta raises the issue that Rnjak’s anticipated evidence had changed to  
include this new fact only after George’s testimony. Vannatta submits that the  
notes of the October 20 meeting should be disclosed to get to the bottom of the  
new information and to assess whether there had been a breach of the witness  
exclusion order.  
[92] We ordered disclosure of the October 20 notes pursuant to Staff’s continuing  
disclosure obligation. In response to our order, Staff disclosed notes from both  
an initial preparation session with Rnjak on September 30, 2020 and the October  
20, 2020 preparation session.  
[93] Upon reviewing the content of the preparation sessions’s notes, Vannatta argues  
that Staff breached the witness exclusion order by:  
a.  
telling Rnjak that there were pre-clearance forms with no associated  
approval email from Rnjak and it might come up in the hearing;  
b.  
asking Rnjak about the handwriting on Vannatta’s transaction histories  
which appears different from other writing by Vannatta on other  
documents; and  
39  
Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada,  
2018) at §16.34; Fuerst, Sanderson & Firestone, Ontario Courtroom Procedure, 5th ed (Toronto:  
LexisNexis Canada, 2020) at 850-851  
40  
Sopinka, Lederman & Bryant at §16.34  
15  
c.  
with respect to the Slemko review (an internal review at Aston Asset  
Management in 2016 lead by their then president, Slemko), advising  
Rnjak of questions asked of George in cross-examination relating to gaps  
in Rnjak’s record keeping and Vannatta’s defence being that Rnjak lost  
documents that Vannatta had provided.  
[94] Vannatta submits that these breaches were serious, the information provided to  
Rnjak during the October 20, 2020 preparation meeting allowed Rnjak to tailor  
his evidence and therefore we should give no weight to Rnjak’s evidence, draw  
an adverse inference against Staff regarding their case against Vannatta and  
dismiss the allegations against Vannatta.  
[95] We find that Staff did not breach the witness exclusion order. While counsel are  
prohibited from telling a witness what evidence has been given, they are  
permitted to discuss documents and issues that have been covered in the  
hearing to date. We conclude that Staff did not provide Rnjak with any of  
George’s evidence.  
[96] On the first alleged breach of the witness exclusion order relating to the approval  
emails for the pre-clearance forms, Staff appears to have covered this issue with  
Rnjak at both the September 30 and October 20 sessions. The notes from  
September 30 state that Staff reviewed with Rnjak what he had said during his  
compelled interview and informed Rnjak that he said “… he sent email [sic] every  
single time but process later in his evidence says something different about  
paper pre-clearance.”41 In the October 20 preparation session Staff notes that  
they told Rnjak “I want to make sure you’re aware there are docs where  
preclearance form and no associated email and that might come up”.42 This  
statement by Staff does not communicate any evidence given by George.  
[97] With respect to the second alleged breach relating to whether the handwriting on  
the Scotia transaction histories differed from other samples of Vannatta’s  
handwriting, the October 20 preparation session notes clearly indicate that Staff  
told Rnjak that Staff noticed the handwriting appeared to be different.  
[98] The issue of the apparently different handwriting was part of Vannatta’s cross-  
examination of George prior to the October 20 preparation session. George’s  
acknowledged that the handwriting looked different and that this should be  
clarified with Rnjak. She speculated that Rnjak might have written Vannatta’s  
name on the one document.  
[99] Staff did not share this speculation with Rnjak. They pointed out to him that the  
handwriting, which was demonstrably different, appeared to be different. Rnjak  
then volunteered to Staff that he wrote Vannatta’s name on the one document to  
remember from whom he’d received it. As no evidence was shared by Staff with  
Rnjak, we find no breach of the witness exclusion order in this instance.  
[100] With respect to the third alleged breach, the October 20 preparation notes show  
that Staff shared with Rnjak information about questions from George’s cross-  
examination so that Rnjak knew what to expect on his cross-examination. The  
questions related to gaps in Rnjak’s record keeping and Vannatta’s defence being  
that Rnjak lost documents Vannatta had provided. In the October 20 meeting  
41  
Exhibit 96, Amaya Witness Notes, Sept 30 at 2  
Exhibit 97, Proofing Session with Sasha Rnjak on Oct 20, 2020 (Rnjak Oct 20 Witness Prep  
42  
Session) at 3  
16  
Staff tells Rnjak he is “[p]robably going to get questions designed to say your  
record keeping had gaps or was vague”43 and that “…its likely that [V]annattas  
[sic] defense is that he gave you docs and lost them, might be suggested, [sic]  
might be suggested procedures confusing or you didn’t enforce properly”44.  
[101] In R v Singh45 the Court agreed that sharing with an excluded witness a question  
that was asked in Court was a breach of the witness exclusion order, albeit a less  
significant breach than disclosing the answer given in response.  
[102] Staff submits that we should distinguish R v Singh from the present case  
because the witness exclusion order in that case expressly stated that questions  
asked were not to be shared with excluded witnesses.  
[103] We agree with Staff that R v Singh may be distinguished on that basis. More  
fundamentally, however, the purpose of a witness exclusion order is to prevent  
testimony from the hearing being shared with a pending witness so that the  
witness has an opportunity to alter or tailor their evidence. In none of the three  
instances cited by Vannatta did Staff share details of George’s testimony.  
Therefore, we do not agree that the witness exclusion order has been breached.  
F.  
Other evidentiary issues  
Adverse inferences  
(a)  
Adverse inference against Vannatta  
[104] Staff asks that we draw an adverse inference against Vannatta for his failure to  
testify. Staff takes the position that it is established law that the Panel may draw  
an adverse inference against a respondent who fails to testify, as it amounts to  
an implied admission that their evidence would not have been helpful to their  
case. Staff submits that the threshold for a panel to draw such an inference is  
low and that Staff need only establish a prima facie case against the respondent  
who did not testify.  
[105] In prior cases, the Commission has drawn an adverse inference in respect of a  
respondent who failed to testify.46  
[106] We find that the combined evidence regarding the allegations that Vannatta  
tipped his relatives about the Amaya MNPI, traded Amaya shares while in  
possession of the MNPI, concealed his trading from Aston Asset Management  
Compliance and misled Staff is sufficient for us to draw conclusions without  
drawing an adverse inference against him for not testifying. For the reasons  
more particularly set out in our analysis of the allegations against Vannatta, we  
therefore decline to draw such an inference.  
43  
Rnjak Oct 20 Witness Prep Session at 7  
Rnjak Oct 20 Witness Prep Session at 7  
2018 ONSC 5230 at paras 34-37  
Sextant Capital Management Inc., 2011 ONSEC 15, (2011) 34 OSCB 5829 at paras 245-246;  
44  
45  
46  
Hutchinson at paras 64-65, 215, 268, and 388; Money Gate Mortgage Investment Corporation (Re),  
2019 ONSEC 40, (2020) 43 OSCB 35 at paras 71 and 77; MegaC Power Corporation, 2010 ONSEC  
19, (2010) 33 OSCB 8290 at paras 275-276  
17  
     
(b)  
Adverse inference against Staff  
[107] Certain of the respondents submit that we should draw an adverse inference  
against Staff.  
[108] Vannatta submits that an adverse inference (among other remedies) ought to be  
drawn against Staff’s case with respect to Vannatta as a result of Staff’s breach  
of the witness exclusion order. We dealt with the witness exclusion order  
argument in Section III.E. above.  
[109] Goss and Kitmitto take the position that adverse inferences should be drawn  
because Staff did not call numerous third parties to testify on various issues.  
[110] Goss submits that an adverse inference should be drawn against Staff, as Staff  
did not call FH, Goss’s client, as a witness. Goss takes the position that Kitmitto  
did not pass MNPI on to Goss and that it was his client FH that came across the  
information (which was not MNPI) and passed it on to Goss. In addition, Goss  
asserts that Staff could have called other individuals that they interviewed during  
the investigation to testify, and the fact that Staff did not call them reflects that  
their evidence would not have been supportive of Staff’s case.  
[111] Kitmitto submits that an adverse inference should be drawn against Staff for not  
calling certain Aston Asset Management employees including Ben Cheng  
(President of Ashton Financial and the Co-Chief Investment Officer of Aston  
Financial and Aston Asset Management), AH, SR or LQ to testify. Specifically,  
Staff did not call Cheng as a witness, however Staff does seek to rely on Cheng’s  
settlement agreement with respect to certain facts. Kitmitto submits that the fact  
that Staff is seeking to use the settlement agreement without calling the  
individual who entered into it shows that Staff was afraid of what would come  
with calling this witness. Further, Kitmitto submits that this supports the  
inference that calling any of the other Aston Asset Management employees who  
possessed MNPI, and especially Cheng, would have resulted in evidence that was  
unfavourable to Staff.  
[112] It is settled law that a respondent is not entitled to dictate the nature and scope  
of an investigation.47 Staff has prosecutorial discretion to put forward the case  
they deem appropriate. It is the panel’s responsibility to determine if the  
evidence tendered by Staff establishes the allegations against the respondents.  
We draw no adverse inference against Staff for their decisions about what  
witnesses to call in this proceeding.  
[113] With respect to the Cheng settlement agreement, we recognize that a settlement  
is a negotiated document, not based on evidence, and we put no weight on it.  
Similar fact and character evidence  
[114] Kitmitto and Fielding take the position that Staff is improperly relying on similar  
fact evidence or evidence of disposition or character.  
[115] There is a general rule excluding admission of evidence of disposition or  
character. Similar fact evidence is an exception to that general exclusionary rule.  
With respect to similar fact evidence, the onus is on the party seeking to rely on  
47  
Azeff (Re), 2012 ONSEC 16, (2012) 35 OSCB 5159 at para 284  
18  
   
it to establish on a balance of probabilities that the probative value of the  
evidence on a particular issue outweighs its potential prejudice.48  
[116] Kitmitto submits that Staff has relied on the following similar fact and bad  
character evidence:  
a.  
b.  
c.  
d.  
e.  
f.  
Kitmitto’s email to Christopher regarding Blackbook Technologies;  
alleged communications between Kitmitto and Fielding about Amaya;  
the noise complaint at Kitmitto’s and Christopher’s apartment;  
the July 4 Patient Home Monitoring email chain with Goss;  
the alleged “culture of non-compliance” at Aston Financial; and  
Kitmitto’s alleged “cavalier approach to confidentiality and compliance”.  
[117] In addition, Kitmitto submits that he never opened the door to an attack on his  
character by putting it in issue. He simply denied the allegations.  
[118] Fielding submits that Staff is legally wrong to ask the Panel to consider the acts  
of all respondents collectively in deciding whether Staff met the burden of proof  
against him. Fielding also emphasizes that it is unclear what portion of the  
evidence Staff is proposing to use against Fielding and how it meets the test in R  
v Handy. In the absence of an articulated position by Staff, Fielding asserts that  
the Panel should not accept Staff’s invitation to take a “kitchen sinkapproach to  
the evidence and to reason backwards that something happened.  
[119] Staff’s position is that the evidence in question is not similar fact or character  
evidence. The evidence in question is, Staff argues, either part of the pleadings  
in this proceeding or part of the circumstantial evidence of their case against the  
respondents.  
[120] In the alternative, Staff argues that, should the Panel decide that the evidence in  
question is similar fact and/or character evidence, it should be admitted because  
its probative value outweighs its potential prejudicial effect.  
[121] We address each of Kitmitto’s and Fielding’s submissions in turn.  
(a)  
Kitmitto  
i. Kitmitto email to Christopher about Blackbook  
Technologies  
[122] Kitmitto’s email to Christopher regarding Blackbook Technologies contained no  
confidential or inside information and we give it no weight.  
ii.  
Kitmitto and Christopher noise complaint  
[123] We also give no weight to the evidence about the noise complaint regarding  
Kitmitto’s and Christopher’s condominium. In our view the potential prejudice of  
the noise complaint evidence outweighs any probative value it may have.  
48  
R v Handy 2002 SCC 56 at para 55  
19  
     
iii.  
Kitmitto’s July 4 Patient Home Monitoring email with  
Goss  
[124] As regards the July 4 email chain with Goss about Patient Home Monitoring,  
Kitmitto did not add Goss to the email chain and, therefore, it is irrelevant and  
we give it no weight in our analysis about the allegations against Kitmitto.  
iv.  
Alleged communications between Kitmitto and  
Fielding about Amaya  
[125] With respect to the alleged communications between Kitmitto and Fielding we  
consider this to be neither similar fact nor character evidence. We address this  
new allegation by Staff in our analysis of the rule in Browne v Dunn below.  
v.  
Alleged “culture of non-compliance” at Aston Financial  
[126] Regarding Staff’s evidence about the alleged weak culture of compliance in the  
offices of the Aston Financial companies, we do not consider this to be similar  
fact evidence. Rather, in our view, it is part of the circumstantial evidence that  
we must consider and weigh in this case. We make specific reference in our  
analysis to this evidence where it has factored into our analysis and decisions.  
vi.  
Kitmitto’s alleged “cavalier approach to confidentiality  
and compliance”  
[127] As regards Kitmitto’s alleged “cavalier approach to confidentiality and  
compliance”, we also do not consider this similar fact or bad character evidence.  
We consider such evidence part of the fabric of circumstantial evidence we need  
to consider and weigh in arriving at our decision and include reference to that  
evidence in our analysis where appropriate.  
vii.  
Whether Kitmitto opened the door to a character  
attack  
[128] Given that we have determined that the evidence by Kitmitto is not similar fact  
or character evidence, we do not need to address whether Kitmitto opened the  
door to a character attack.  
(b)  
Fielding  
[129] Fielding argues that the Commission’s decisions in Hutchinson, Azeff Merits and  
Agueci Merits support his position that we should not, when considering the  
allegations against him, consider the trading in Amaya during the Relevant  
Period by the other respondents.  
[130] We disagree. In each of Hutchinson, Azeff Merits and Agueci Merits, the panel  
was dealing with alleged insider tipping and trading in a number of different  
securities. Staff, in those cases, argued that the panel should consider the  
alleged activity with respect to all of the transactions when determining if a  
respondent had engaged in the alleged tipping or trading.  
[131] The panels in each of those cases declined to do so, because there were  
sufficient dissimilarities between transactions that the prejudicial effect would  
outweigh the probative value.49 In Hutchinson, to take just one example, three of  
the respondents were not alleged to have traded in the same subset of  
49  
Hutchinson at paras 152-154; Azeff Merits at paras 8-10; Agueci (Re), 2015 ONSEC 2, (2015) 38  
OSCB 1573 (Agueci Merits) at paras 71-75  
20  
           
transactions as any other respondent, and the timing of two of the respondents’s  
impugned trading was inconsistent.50  
[132] This is not the case here. In the circumstances of this case, the pattern of  
trading by each of the respondents in Amaya shares during the Relevant Period  
supports an inference that any one of them may have engaged in insider trading  
and we find this more probative than prejudicial.  
[133] Regarding Fielding’s submission that it is not clear what portion of the evidence  
Staff is proposing to use in its case against Fielding we find no lack of clarity on  
this point. Staff’s position is that the trading in Amaya by this group of  
individuals, including Fielding, during the Relevant Period was more likely than  
not insider trading as a result of insider tips. All of the respondents had a  
connection to Kitmitto, who possessed MNPI about Amaya. The respondents’s  
trading in Amaya, the culture at Aston Financial and the pattern of  
communications amongst the respondents, including Fielding and his advisor  
Goss, are, Staff submits, part of a mosaic of circumstantial evidence. Staff  
submits that circumstantial evidence supports a conclusion it was more likely  
than not that Kitmitto tipped Goss about the Amaya MNPI, and Goss then shared  
it with Fielding, who in turn bought shares of Amaya.  
[134] While we find no lack of clarity in what evidence in Staff’s case applies to  
Fielding, for the reasons set out in our analysis of the allegations against Fielding  
in Section IV.B.8, we do not find such evidence sufficient to draw the inferences  
that Goss tipped Fielding about the Amaya MNPI and that Fielding bought Amaya  
shares while he had that information.  
Breach of the rule in Browne v Dunn  
[135] The rule in Browne v Dunn51 requires that if a party is going to rely on evidence  
that contradicts a witness, then, in fairness, that evidence needs to be put to the  
witness during cross-examination to allow that witness the opportunity to explain  
the contradiction.  
[136] Kitmitto submits that Staff did not ask Kitmitto about certain aspects or theories  
of its case during Kitmitto’s cross-examination, specifically, that:  
a.  
Kitmitto provided information about his planned Amaya meeting to Goss  
prior to April 29, 2014;  
b.  
the April 29 meeting of Aston Asset Management and Amaya management  
ended before 1:54 pm and whether the President of Canaccord, the dealer  
acting for Amaya, sent his 1:51 pm email to Kitmitto while they were still  
in the meeting;  
c.  
Kitmitto tipped Goss or Fielding about the May 8 delay of the May 12  
target announcement date for the Acquisition. Kitmitto testified that he  
did not tell anyone other than Cheng and certain other Aston Asset  
Management employees about the delay of the initial target date for the  
announcement of the transaction;  
d.  
Kitmitto tipped Fielding by keeping him updated on the progress of the  
Acquisition;  
50  
51  
Hutchinson at para 153  
1893 CanLII 65, (1893) 6 R 67 (UK HL)  
21  
 
e.  
f.  
Kitmitto updated Goss about the Acquisition on June 4 and that Goss then  
passed that information along to Goss’s client AE; and  
the sequence of calls involving Kitmitto, Goss and Fielding on June 5  
indicate that Kitmitto must have passed information about the Acquisition  
to Goss despite evidence that these individuals were working on other  
potential investment opportunities at the same time.  
[137] At the hearing, we asked whether Kitmitto was alleging a breach of the Browne v  
Dunn rule. Kitmitto explained that this was more of a general fairness point  
about the weight that could be attributed to the evidence and whether Kitmitto  
had a fair opportunity to respond to Staff’s theory.  
[138] Fielding submits that Staff breached the Browne v Dunn rule because Staff’s  
theory that Goss transferred MNPI about Amaya to Fielding either in person at  
the AHF offices on the afternoon of April 29, 2014, or over the phone at 1:54  
p.m. or 1:56 p.m. was never put to Fielding during cross-examination. Fielding  
also points out that the July 22, 2014 email which was said to contain  
confidential information was never put to Kitmitto or to someone from  
Canaccord, the dealer representing Amaya regarding the Acquisition, where the  
email originated.  
[139] Staff submits that there is no issue of fairness as Kitmitto and Fielding were  
aware of the allegations against them and they denied those allegations. In  
addition, Staff submits there is no breach of the rule in Browne v Dunn when  
Staff does not put every aspect of Staff’s theory to a respondent.52  
[140] We find that Staff did not breach the rule in Browne v Dunn.  
[141] Given that Kitmitto was not alleging a breach of the rule in Browne v Dunn, there  
is no need for us to address all of the points in paragraph 136 above or to  
conduct a full analysis of the principle established by Browne v Dunn for those  
points. On the issue of whether Kitmitto had a fair opportunity to address Staff’s  
theory of the case against him, subject to the exception we address in paragraph  
142, we agree with Staff that Kitmitto had notice of the allegations against him  
and he denied those allegations. Therefore, there was no unfairness to Kitmitto.  
[142] However, while not a breach of Browne v Dunn, we address here Staffs new  
allegation raised at the hearing that Kitmitto updated Fielding about the  
announcement delays. The Statement of Allegations states that Fielding received  
updates about the Acquisition “from Goss and others”. This vague language is  
insufficient, in our view, to support the conclusion that Staff intended this as a  
reference to Kitmitto. We, therefore, decline to consider Staff’s new allegation  
raised at the hearing about communications relating to updates about the  
Acquisition from Kitmitto to Fielding because it was not clearly articulated in the  
Statement of Allegations.  
[143] With respect to Fielding, we accept his evidence that he was not in the Aston  
Financial office on April 29, 2014 and that Goss had not tipped him about the  
Acquisition. Therefore, there is no need to address whether Staff breached the  
rule in Browne v Dunn by not putting these aspects of their case to Fielding  
during cross-examination. We give no weight in our analysis to the July 22, 2014  
email as this was outside of the Relevant Period.  
52  
R v McCarthy, 2015 NWTSC 18, [2015] N.W.T.J. No. 24 at paras 34-41  
22  
IV.  
ISSUES AND ANALYSIS  
[144] We turn now to our analysis of Staff’s allegations against the respondents. We  
begin by reviewing issues potentially relevant to all, or to specific groups of  
respondents. The issues we need to decide specific to each Respondent are set  
out in their respective sections below.  
A.  
General issues  
[145] We address in turn below the following issues that are potentially relevant to all,  
or to specific groups of respondents:  
a.  
b.  
c.  
d.  
e.  
f.  
circumstantial evidence;  
the Act’s prohibition against tipping;  
the Act’s prohibition against insider trading;  
the definition of “material fact”;  
special relationships;  
credibility; and  
g.  
“conduct contrary to the public interest”.  
Circumstantial evidence  
[146] In many cases the elements of insider trading and tipping must be proven by  
circumstantial evidence rather than direct evidence, because “the only persons  
who have direct knowledge of relevant communications are the wrongdoers  
themselves.”53 Circumstantial evidence can “fill an evidentiary gap” created by  
the absence of direct evidence.54  
[147] As explained in Hutchinson, a panel may draw inferences from circumstantial  
evidence but those inferences “must be reasonably and logically drawn from a  
fact or group of facts established by the evidence, should be drawn from the  
combined weight of the evidence and cannot be drawn from speculated facts.55  
[148] Also as explained in Hutchinson, for an inference to be drawn it does not need to  
be the only possible, the most obvious or the most easily drawn inference. Staff  
will not have met its burden of proof “if the circumstantial evidence equally  
supports two opposing inferences, one in favour of Staff and one in favour of a  
respondent.”56  
[149] Insider trading and tipping cases are “established by a mosaic of circumstantial  
evidence which, when considered as a whole, leads to the inference that it is  
more likely than not that the trader, tipper or tippee possessed or communicated  
material non-public information.”57 This requires the panel to “assess each piece  
of evidence on its own, to determine whether the evidence deserves weight,  
53  
Hutchinson at para 60, citing Azeff Merits at para 43  
Hutchinson at para 60, citing Finkelstein v Ontario Securities Commission, 2016 ONSC 7508 (Div Ct)  
54  
(FinkelsteinDiv) at para 19  
55  
Hutchinson at para 61  
Hutchinson at para 62  
Azeff Merits at para 47  
56  
57  
23  
     
whether it supports a finding of fact, and if so, whether that fact alone or  
together with other facts then supports a suggested inference”.58  
The Act’s prohibition against tipping  
[150] Staff alleges that all of the respondents except Claudio and Fielding engaged in  
tipping contrary to s. 76(2) of the Act.  
[151] Subsection 76(2) of the Act prohibits a person in a special relationship with an  
issuer from informing another person, other than in the necessary course of  
business, of a material fact or material change with respect to the issuer that has  
not been generally disclosed.  
[152] The respondents alleged to have engaged in tipping do not argue that the  
alleged tip was in the ordinary course of business.  
[153] Therefore, in order to establish each of its tipping allegations, Staff must prove  
all of the following:  
a.  
b.  
c.  
the alleged tipper informed the other party of a material fact or change  
about Amaya;  
at the time the material information was communicated, the material fact  
or change had not been generally disclosed; and  
the tipper was in a special relationship with Amaya.  
The Act’s prohibition against insider trading  
[154] Staff alleges that all of the respondents except Kitmitto engaged in prohibited  
insider trading.  
[155] The Act’s prohibition against insider trading aligns with two of the four  
fundamental purposes of the Act; namely, to provide protection to investors from  
unfair, improper or fraudulent practices, and to foster fair, efficient and  
competitive capital markets and confidence in the capital markets. As set out in  
Hutchinson, the prohibition exists for three principal reasons:  
a.  
fairness requires that all investors have equal access to information about  
an issuer that would likely affect the market value of the issuer’s  
securities;  
b.  
c.  
insider trading may undermine investor confidence in the capital markets;  
and  
capital markets operate efficiently on the basis of timely and full  
disclosure of all material information.59  
[156] Subsection 76(1) of the Act prohibits a person in a special relationship with an  
issuer from purchasing or selling securities of the issuer with knowledge of a  
material fact or material change that has not been generally disclosed.  
[157] In order to establish its allegation that a respondent engaged in prohibited  
insider trading, Staff must therefore prove each of the following elements:  
a.  
the respondent purchased or sold securities of the issuer;  
58  
59  
Hutchinson at para 63  
Hutchinson at para 97; Act, s 1.1  
24  
   
b.  
at the time of the purchase or sale, the respondent had knowledge of a  
material fact or material change about the issuer;  
c.  
the material fact or material change had not been generally disclosed; and  
d.  
at the time of the purchase or sale, the respondent was in a special  
relationship with the issuer.  
[158] With respect to the second element, proof of knowledge of the information is  
sufficient. Staff does not have to prove that a respondent made use of the  
information when trading shares.60  
[159] Knowledge may be inferred based on circumstantial evidence of the person’s  
ability and opportunity to acquire the information and the characteristics of the  
person’s trading.  
[160] Prior Commission decisions have set out a non-exhaustive list of characteristics  
that may suggest knowledge of material facts:  
a.  
b.  
c.  
timely trades;  
unusual trading patterns;  
unusually risky trades, including because they represent a significant  
percentage of the portfolio;  
d.  
e.  
highly profitable trades; or  
a first-time purchase of the security.61  
Definition of a “material fact”  
[161] None of Staff’s allegations in this case relates to a material change, as opposed  
to a material fact. For convenience, the balance of these reasons will omit any  
reference to material change.  
[162] To establish a contravention of the insider tipping prohibition, Staff must prove  
that the tipper communicated a “material fact”. Similarly, to establish a  
contravention of the insider trading prohibition, Staff must establish that a  
person traded with knowledge of a “material fact”.  
[163] “Material fact” is defined, in s. 1(1) of the Act, as a fact that significantly affects  
or would reasonably be expected to have a significant effect on, the market price  
or value of such securities.  
[164] Materiality is to be determined objectively, accounting for all the relevant  
circumstances. Several facts may be material when considered together, even  
when one or more of the facts do not appear to be material when considered  
alone.62  
Special relationship in general  
[165] The prohibitions against insider trading and tipping both require the  
determination of whether a person was “in a special relationship” with an issuer.  
The definition of special relationship in s. 76(5) of the Act specifies the various  
60  
Hutchinson at para 101, citing Donald at para 261  
Hutchinson at para 121; Suman (Re), 2012 ONSEC 7, (2012) 35 OSCB 809 at para 307; Azeff  
61  
Merits at para 45  
62  
Hutchinson at para 119  
25  
   
relationships that would qualify. The relationships relevant to this case are those  
set out in s. 76(5)(b) for Kitmitto and s. 76(5)(e) for the other respondents.  
[166] A person is in a special relationship within the meaning of s. 76(5)(b) if the  
person is engaging, considering or evaluating engaging, or proposes to engage in  
any business or professional activity with or on behalf of an issuer.  
[167] Under s. 76(5)(e), a person is in a special relationship if the person learns about  
a material fact regarding an issuer from another person in a special relationship  
and knows or ought reasonably to know that the other person is in a special  
relationship. Subsection 76(5)(e) provides that successive tippees may also be in  
a special relationship and it does not require proof that the alleged tippee was  
aware of the identity of the initial tipper.63  
[168] The special relationship definition requires that Staff establish both an  
“information connection” (i.e. that the tippee learned of a material fact from a  
person in a special relationship) and a “person connection” (i.e. that the tippee  
knew or ought reasonably to have known that the tipper was in a special  
relationship).64  
[169] With respect to the person connection, and the question of whether a tippee  
ought reasonably to have known that the tipper was in a special relationship, the  
Commission has identified several factors to be considered:  
a.  
b.  
c.  
d.  
the relationship between the tipper and the tippee;  
the professional qualifications of the tipper and of the tippee;  
the specificity of the MNPI that is conveyed;  
the time elapsed between the communication of the MNPI and the trading  
by the tippee;  
e.  
intermediate steps taken by the tippee before trading, to verify the  
information received;  
f.  
whether the tippee has traded the issuer’s securities before; and  
g.  
whether the tippee’s trade was significant in the context of the tippee’s  
portfolio.65  
[170] Depending on the factual context and the actors involved, some factors may be  
more persuasive than others and the weight to be accorded to each factor will  
also vary. What is important is that the overall weight given to the aggregate of  
all the factual criteria compels the decision maker to conclude that it is more  
probable than not that the tippee ought to reasonably have known that the MNPI  
received originated from a knowledgeable person, i.e. one who was in a special  
relationship.66  
[171] We address whether each of the respondents, for which such a determination is  
necessary, was in a special relationship in our analysis of each respondent.  
63  
Finkelstein v Ontario Securities Commission, 2018 ONCA 61 (FinkelsteinCA) at para 49  
FinkelsteinCA at paras 44-49  
FinkelsteinCA at para 48  
Azeff Merits at para 65  
64  
65  
66  
26  
Credibility  
[172] It is a well-established principle that credibility is best tested by the consistency  
of the evidence with the preponderance of probabilities presented in the case.67  
[173] It is not necessary for us to come to an overarching decision about any one  
witness’s credibility. It is possible to find a witness credible in some respects but  
not in others. We address the credibility of the respondents in their respective  
sections of our analysis.  
“Conduct contrary to the public interest”  
[174] The phrase “conduct contrary to the public interest” does not appear in the Act.  
The concept arises from the opening words of s. 127 of the Act, which gives the  
Commission authority to make “orders if in its opinion it is in the public interest  
to make the….orders”. The Commission has, on occasion, found it in the public  
interest to issue an order in the public interest even in the absence of finding a  
contravention of Ontario securities law.68  
[175] In the Statement of Allegations, Staff makes two types of public interest  
allegations. The first is when there is an alleged breach of the Act and it is also  
alleged that this same conduct is not in the public interest. The second is when  
there is a stand-alone allegation that conduct is not in the public interest absent  
a breach of Ontario securities law.  
[176] With respect to the first type of public interest allegation, in our view it is  
necessary for the Statement of Allegations to establish some basis for why the  
alleged conduct relating to a breach of the Act also justifies a separate finding  
that the conduct engages an animating principle of the Act and / or is abusive at  
the same time.69 In the absence of any such basis, where we find that the  
alleged conduct contravened Ontario securities law, we need not go further to  
consider the alleged public interest allegation.70  
[177] For the reasons set out in our analysis below we find that Staff has established  
their allegations that:  
a.  
b.  
c.  
each of Kitmitto, Vannatta, Goss and Fakhry tipped others with the Amaya  
MNPI contrary to s. 76(2);  
each of Vannatta, Christopher, Goss and Fakhry traded Amaya while in  
possession of the Amaya MNPI contrary to s. 76(1); and  
Vannatta mislead Staff contrary s. 122(1)(a).  
However, in the absence of any basis in the Statement of Allegations as to how  
this conduct also engages an animating principle of the Act and / or is abusive,  
we find that Staff has not established that this conduct, in addition to being a  
breach of Ontario securities law also supports a public interest allegation.  
[178] For the reasons set out in our analysis below we find that Staff did not establish  
their allegations that:  
67  
Springer v Aird & Berlis LLP, (2009) 96 OR (3d) 325 at para 14  
Donald at paras 323-325; Agueci Merits at paras 174-175 and 715-717 ; Rowan (Re), 2008 ONSEC  
68  
12, (2008) 31 OSCB 6515 (Rowan) at paras 158-160  
69  
See for example Donald at paras 323 and 324 where the panel justified separate findings when the  
conduct engages an animating principle of the Act and / or is abusive.  
70  
MOAG Copper Gold Resources Inc (Re), 2020 ONSEC 3, (2020) 43 OSCB 907 (MOAG) at para 57  
27  
   
a.  
Fielding traded Amaya shares while in possession of the Amaya MNPI  
contrary to s. 76(1) (because we found that Goss did not tip Fielding);  
b.  
c.  
d.  
Christopher tipped Claudio with the Amaya MNPI contrary to s. 76(2);  
Christopher misled Staff contrary to s. 122(1)(a); or  
Claudio traded Amaya shares while in possession of the Amaya MNPI  
contrary to s. 76(1) (because we found that Christopher did not tip  
Claudio).  
Staff has also alleged that this conduct engages an animating principle of the Act  
and / or is abusive.  
[179] Similar to our finding above, the Statement of Allegations is also deficient with  
respect to this group of alleged conduct as it does not lay out any basis in  
support of the public interest allegations. Therefore, we find that Staff has not  
established these public interest allegations.  
[180] As regards the second type of public interest allegation, stand-alone public  
interest allegations absent any breach of Ontario securities law, Staff alleges that  
Vannatta’s concealing his trading in Amaya shares from Aston Asset  
Management Compliance, and Goss’s and Fakhry’s recommending Amaya to  
their clients while in a special relationship with Amaya and in possession of  
Amaya MNPI is conduct that engages an animating principle of the Act and / or is  
abusive. We address these specific allegations in the sections below applicable to  
each of these respondents.  
B.  
Analysis specific to each Respondent  
Kitmitto  
(a)  
Did Kitmitto receive Amaya MNPI and, if so, on what  
date?  
[181] Staff submits that Kitmitto received MNPI about Amaya beginning on April 25,  
2014. We do not agree. While the information Kitmitto received on April 25 and  
April 28, 2014 was confidential, it did not, in our view, meet the definition of a  
“material fact”.  
[182] However, we find that Kitmitto did receive MNPI about Amaya at the April 29,  
2014 meeting with Amaya management.  
i.  
Period prior to April 29, 2014 meeting  
[183] On April 25, 2014, Kitmitto was told by SA of Canaccord, who was representing  
Amaya, that Kitmitto could meet Amaya management and be brought over the  
wall about a potential transaction if he signed a non-disclosure agreement.  
Kitmitto agreed that afternoon to meet with Amaya management on April 29,  
2014. The following Monday, April 28, 2014, Kitmitto received the non-disclosure  
agreement, which referred to Amaya’s “consideration of a strategic transaction”.  
At this point the only information Kitmitto had was that Amaya was considering a  
strategic transaction. The non-disclosure agreement was marked “privileged and  
confidential” and Kitmitto agreed, on cross-examination, that the information  
about Amaya’s potential transaction was confidential.  
[184] Information that there was a “potential transaction” (April 25) or that Amaya  
was “considering a strategic transaction” (April 28), in our view, could not  
reasonably be expected to have a material effect on Amaya’s share price  
28  
       
because there was still uncertainty and a lack of specificity about the potential  
transaction. This is also consistent with the approach taken by the British  
Columbia Securities Commission in Jin71, where it was found that a non-  
disclosure agreement did not constitute material non-public information.  
ii.  
Period after the April 29, 2014 meeting  
[185] At the meeting with Amaya management at 1 pm on April 29, 2014, Kitmitto  
learned that Amaya had negotiated the Acquisition of PokerStars. Kitmitto also  
learned the details of the Acquisition, including through a slide deck he received  
at the meeting. Those details included:  
a.  
b.  
the US $4.3 billion purchase price with a breakdown of funding sources;  
Amaya would fund the Acquisition with $100 million in cash, $2.9 billion in  
debt financing, $800 million through offering convertible preferred shares,  
and $600 million through an equity offering;  
c.  
d.  
e.  
f.  
the involvement of Deutsche Bank, Barclays, Macquarie, Blackstone and  
GSO Capital Partners LP;  
US $150 million of indicated demand for the equity offering had been  
made at $20 per share;  
New Jersey had given a “green light” for PokerStars to operate there after  
the transaction; and  
a timeline, which indicated an anticipated announcement date of May 12,  
2014.  
[186] Looking objectively at the relevant facts above, the information Kitmitto received  
at the April 29, 2014 meeting about the Acquisition was material. Amaya’s  
purchase of PokerStars had been negotiated and included the purchase price,  
financing details and a target announcement date. PokerStars was seven or eight  
times larger than Amaya. The $20 equity financing price was triple Amaya’s  
trading high of $6.87 on that day. Knowledge of the Acquisition could, we find,  
have been reasonably expected to have a material effect on Amaya’s share price.  
[187] Therefore, we conclude that the Acquisition was a material fact. While some of  
these facts were not 100% certain at the time and the transaction was  
contingent on certain steps and financing being put in place and finalized, we  
note that the Commission has in the past acknowledged that it is important to  
consider indicia of interest in certain transactions at issue, particularly in  
instances where there were contingent or speculative developments in potential  
transactions.72 Considering the players involved and the magnitude of the  
transaction, in our view there was a considerable indicia of interest in this  
transaction at the time and the information about the potential Acquisition was  
material.  
[188] Staff alleges that the material information about the Acquisition, that Kitmitto  
learned on April 29, had not been generally disclosed. This was not disputed by  
any of the respondents. There was no evidence before us to suggest otherwise.  
71  
Jin (Re), 2014 BCSECCOM 194 (Jin) at paras 49-52  
Agueci Merits at para 112. See also Donald at para 205, citing the Divisional Court in Donnini  
72  
(2003), 177 OAC 59 (Div Ct) at para 17 that recognized that material facts can include speculative  
or contingent events.  
29  
 
Therefore, we find that the material information about Amaya that Kitmitto  
learned on April 29 had not been generally disclosed and was, therefore, MNPI.  
(b)  
Was Kitmitto in a special relationship with Amaya?  
[189] Kitmitto was an analyst covering the gaming sector for Aston Asset Management.  
He was responsible for assessing investment opportunities for the Aston Asset  
Management funds and making recommendations about investments to the fund  
managers.  
[190] The purpose of the April 29, 2014 meeting with Amaya management and  
representatives of Canaccord, the dealer marketing the Acquisition for Amaya,  
was to present Aston Asset Management with the opportunity to participate in  
financing the Acquisition.  
[191] Once Kitmitto learned about the Acquisition at that meeting, Kitmitto was  
considering, on behalf of Aston Asset Management, whether to engage in  
business with Amaya. This meeting took place starting at 1:00 pm however the  
end time is not clear. In any event, we find that as of April 29, 2014 when the  
meeting ended Kitmitto was in a special relationship with Amaya under s.  
76(5)(b) of the Act.  
(c)  
Conclusion regarding whether and when Kitmitto  
received MNPI and if he was in a special relationship  
at that time  
[192] Therefore, as of April 29, 2014 once the 1:00 pm meeting with Canaccord ended,  
Kitmitto was in possession of MNPI while in a special relationship with Amaya.  
We must now determine whether Kitmitto tipped others with this MNPI about the  
potential Acquisition.  
[193] We address whether Kitmitto tipped Vannatta, Christopher and Goss in the  
sections about each of those other respondents.  
Vannatta  
(a)  
Did Kitmitto tip Vannatta with the Amaya MNPI and  
did Vannatta trade Amaya shares while in possession  
of that information?  
[194] Vannatta bought shares of Amaya on April 29, 2014 at 12:23 pm, prior to  
Kitmitto’s 1:00 pm meeting with Amaya management, and on May 6, and May  
14, 2014. Given our finding that Kitmitto did not have Amaya MNPI until his  
meeting on April 29, 2014, we find that Vannatta’s April 29, 2014 trade was not  
insider trading and did not breach s. 76(1) of the Act. Therefore, we have not  
included Vannatta’s April 29th trading in our insider trading analysis.  
[195] We find that Staff has established that it is more likely than not that Kitmitto  
tipped Vannatta about the Amaya MNPI and that Vannatta bought Amaya shares  
on May 6 and 14, 2014 while he had that information from Kitmitto.  
[196] Kitmitto testified that he did not tip Vannatta about the Amaya MNPI. We do not  
accept this evidence. We find that Kitmitto’s cavalier attitude towards the  
handling of confidential information during the Relevant Period, which we  
describe below, combined with the other circumstantial evidence about Vannatta  
described in this section, establishes on a balance of probabilities that Kitmitto  
told Vannatta about the Amaya MNPI.  
30  
       
[197] Kitmitto participated in a Bloomberg persistent chat73 with Vannatta and SA, the  
dealer employee from Canaccord, who brought Kitmitto into the Amaya  
Acquisition discussions. It was through this persistent chat that Kitmitto was  
invited by SA to participate in a meeting with Amaya management, advised he  
could sign a non-disclosure agreement and be brought over the wall on a  
transaction, confirmed the date and time of the meeting with Amaya  
management, and confirmed the signed non-disclosure agreement would be  
delivered to Amaya at the meeting on April 29, 2014.  
[198] Kitmitto agreed that this information was confidential. Yet all of it was shared in  
the Bloomberg discussion group that included his office mate and friend,  
Vannatta, with no apparent attempt by Kitmitto to ensure the information was  
not visible or available to Vannatta.  
[199] Vannatta was more likely than not aware of Kitmitto’s and SA’s discussion on the  
persistent chat about Kitmitto potentially going over the wall regarding Amaya  
because shortly after Kitmitto wrote in the chat that he would take the meeting  
(April 25, 2014 at 1:37 pm), Vannatta responded (April 25, 2014 at 1:42 pm) to  
an earlier Kitmitto post about Vannatta receiving a golf invitation.  
[200] On April 25 at 1:36 pm, Kitmitto knew he could sign a non-disclosure agreement  
with Amaya to be brought over the wall and he confirmed with SA that he would  
take the meeting with Amaya management on April 29. At 1:47 pm on April 29,  
2014, Kitmitto sent an email to one of Aston Asset Management’s equity traders  
instructing the trader to buy 200,000 Amaya shares for two of the Aston Asset  
Management funds. Kitmitto’s evidence was that it was Cheng who decided what  
the funds bought and sold, it was an immaterial trade, the trade was likely based  
on instructions Kitmitto had received the previous day from Cheng, and that it  
was possibly to replace an earlier sale of 200,000 Amaya shares from the funds.  
[201] Staff does not allege that this trade was an illegal insider trade. We mention it  
here only as it relates to our assessment of the allegations that it is more likely  
than not that Kitmitto shared MNPI about Amaya with his colleague and friend,  
Vannatta.  
[202] Even if we were to believe, which we do not, that Kitmitto would wait until the  
middle of the following day to execute trading instructions from Cheng, the fact  
that Kitmitto, once he had received confidential information about Amaya, would  
instruct the Aston Asset Management funds to buy Amaya shares, supports in  
our view an inference that Kitmitto’s attitude towards compliance lacked rigour.  
Combined with the other circumstantial evidence discussed below relating to  
Vannatta, Christopher and Goss, Kitmitto’s instructing the funds to buy Amaya  
after he had received confidential information supports the further inference that  
it is more likely than not that Kitmitto tipped these respondents.  
[203] The evidence on which we base our finding that it is more likely than not that  
Kitmitto tipped Vannatta after Kitmitto’s meeting with Amaya management on  
April 29 is:  
73  
This is a feature of Bloomberg that lets one or more users maintain ongoing forums for sharing  
information. It serves as an ongoing chat room.  
31  
a.  
Vannatta shared a small office with Kitmitto, they could occasionally hear  
each other’s conversations and Vannatta had to go around Kitmitto’s desk  
to leave the office;  
b.  
c.  
d.  
Vannatta socialized with Kitmitto, at and after work, and they also went to  
the gym together and spoke every day;  
Vannatta knew that Kitmitto was an analyst covering technology and  
gaming, including Amaya;  
Vannatta’s phone and chat records show that he was in the Aston Asset  
Management office the afternoon of April 29, 2014, the date Kitmitto  
learned about the Acquisition. Vannatta made calls from his cell phone on  
April 29 from Toronto. In addition, on April 29 Vannatta responded to a  
chat invitation to go for drinks by saying that he had to attend the internal  
education session at 4:00 pm that afternoon;  
e.  
f.  
Vannatta had the opportunity to learn about the Acquisition from Kitmitto  
by virtue of their professional and social relationships, and their physical  
proximity at Aston Asset Management;  
Vannatta’s Amaya trading was uncharacteristic:  
he managed a resource fund and most of his personal trading  
between January 1, 2012 and June 30, 2014 was in the energy and  
resource sectors; and  
Amaya was the only gaming stock Vannatta purchased during the  
Relevant Period and the only stock he traded between April and  
May 2014;  
g.  
Vannatta’s trading was risky:  
he spent more money buying Amaya than he did on any other  
issuer between January 1, 2012 and June 30, 2014;  
the $31,616 he spent on Amaya was half the amount he invested  
in stocks in 2013 and represented a significant amount relative to  
his salary of $90,000 and bonus of $45,000 in 2014;  
Vannatta was experiencing financial issues at the time of his  
trading. Vannatta owed $20,878 on his line of credit, was at his  
limit on his credit card, had car payments and student and other  
loan payments; and  
Vannatta used $8,000 of borrowed funds to buy Amaya;  
h.  
Vannatta’s trading was timely:  
he only bought Amaya shares during the Relevant Period and did  
not sell until after the June 12, 2014 announcement, despite the  
increase in Amaya’s share price during the period creating  
opportunities to realize a profit;  
Kitmitto’s understanding was the Acquisition would be announced  
on May 12, 2014. On May 8, Kitmitto was informed the  
announcement was being delayed to May 21. We find it was more  
likely than not that Vannatta was aware of these dates from  
Kitmitto when he traded in Amaya on May 6 and May 14 as in both  
32  
cases trades were made a few days prior to the expected  
announcement date; and  
there is no evidence before us about any alternative basis for  
Vannatta’s interest in buying Amaya; and  
i.  
Vannatta’s trading was profitable:  
Because we have found that Vannatta’s April 29 purchase of Amaya  
was not made with the benefit of MNPI, we have deducted that  
trade from Staff’s profit calculation for Vannatta. By our calculation,  
Vannatta made a profit of $54,435, a 277% return, on his two  
Amaya purchases in May 2014. This was his second largest profit  
on the 13 securities Vannatta bought between January 1, 2012 and  
June 30, 2014 and sold before December 31, 2015.  
[204] We find that Vannatta had an opportunity to learn about the Acquisition because  
of his personal and professional relationship with Kitmitto and the circumstances  
of how and when Kitmitto learned of the Amaya MNPI. While opportunity to  
acquire knowledge of MNPI is not, in and of itself, sufficient to establish that  
tipping occurred, knowledge can be inferred based on “circumstantial evidence of  
opportunity to acquire knowledge of a material undisclosed fact, combined with  
evidence of well-timed and profitable trades”.74  
[205] We conclude that Vannatta’s opportunity to learn about the Acquisition,  
combined with our findings that Vannatta’s trading in Amaya was timely,  
uncharacteristic and profitable, and that he concealed his trading from Aston  
Asset Management Compliance (see Section IV.B.2(g)) and misled Staff (see  
Section IV.B.2(d)), supports the inference that it is more likely than not that  
Kitmitto tipped Vannatta about the Acquisition and Vannatta bought Amaya  
shares while he had that information.  
(b)  
Was Vannatta in a special relationship with Amaya?  
[206] We also find, based on the above evidence, that Vannatta was in a special  
relationship with Amaya. We conclude that Staff has established both the  
“information connection” (Vannatta learned about the Amaya MNPI from Kitmitto  
who was in a special relationship with Amaya) and the “person connection”  
(Vannatta knew or ought reasonably to have known that Kitmitto was in a  
special relationship with Amaya), given:  
a.  
b.  
Vannatta’s and Kitmitto’s personal and professional relationship;  
the timeliness, uncharacteristic nature, and riskiness of Vannatta’s  
trading;  
c.  
the steps Vannatta took to conceal his trading from Aston Asset  
Management Compliance (see Section IV.B.2(g)); and  
d.  
Vannatta’s misleading statements to Staff (see Section IV.B.2(d)).  
(c)  
Conclusions on tipping and trading  
[207] For the reasons given above, we find that it is more likely than not that Kitmitto  
tipped Vannatta in breach of s. 76(2) of the Act and Vannatta engaged in insider  
74  
Agueci Merits at para 68  
33  
   
trading for the trades of May 6, and May 14, 2014 in breach of s. 76(1) of the  
Act.  
(d)  
Did Vannatta mislead Staff?  
[208] Vannatta was interviewed under oath by Enforcement Staff on October 19, 2016  
and August 16, 2017. Staff alleges that, in these interviews, Vannatta misled  
Staff, contrary to s. 122(1)(a) of the Act, by claiming he:  
a.  
b.  
did not know he traded Amaya securities on May 14, 2014;  
had pre-cleared his April 29, May 6, and May 14, 2014 trades in Amaya  
with Aston Asset Management Compliance;  
c.  
d.  
e.  
had submitted brokerage statements for each of his three Scotia accounts  
to Aston Asset Management Compliance for the period of April to June  
2014;  
did not intentionally select a 45-day range on the transaction histories for  
his Scotia RRSP and TFSA accounts that he provided to Aston Asset  
Management Compliance; and  
had provided Aston Asset Management Compliance with a transaction  
history for his Scotia Regular account for April and May 2014.  
We deal with each of these statements in turn below.  
[209] Subsection 122(1)(a) of the Act makes it an offense for any person to make a  
statement to a person appointed to make an investigation or examination under  
the Act that, in a material respect is misleading or untrue or does not state a fact  
that is necessary to make the statement not misleading.  
[210] In Agueci Merits, the panel cites two decisions that are particularly helpful in  
interpreting what constitutes an offence under s. 122(1)(a). First, the Court of  
Appeal decision in Wilder where the court noted that “[i]t is difficult to imagine  
anything that could be more important to protecting the integrity of capital  
markets than ensuring that those involved in those markets, whether as direct  
participants or as advisors, provide full and accurate information to the OSC”.75  
Second, the Commission in Da Silva stated that “[e]vasion, obfuscation, and  
untruth in responding to Staff inquiries serves to hinder Staff’s performance of  
their responsibilities to monitor and enforce compliance with Ontario securities  
law; such conduct is an obstacle to effective regulation of the capital markets.”76  
[211] We also note that in Wilder the Court of Appeal considered an allegation under s.  
122(1)(a) of the Act and acknowledged that the Act gives the Commission a  
number of options on how to proceed and that s. 122(1) does not create an area  
of exclusive jurisdiction for the courts and may also be addressed before the  
Commission.77  
75  
Agueci Merits at para 636, citing Wilder v Ontario (Securities Commission) (2001), 53 OR (3d) 519,  
[2001] O.J. No. 1017 (ON CA) (Wilder) at para 22  
76  
Agueci Merits at para 636, citing Da Silva (Re), 2012 ONSEC 32, (2012), 35 OSCB 8822 at para 7,  
citing Hennig (Re), 2008 ABASC 363 at para 1296  
77  
Agueci Merits at para 635 citing Wilder at para 22  
34  
 
i.  
Vannatta did not remember trading on May 14  
[212] Vannatta told Staff that he did not remember he had traded Amaya shares on  
May 14, 2014 in his Scotia Regular account. We find that it is more likely than  
not that this statement was untrue, consistent with our finding that Vannatta  
concealed his May 14 trade from Aston Asset Management Compliance.  
[213] Aston Asset Management Compliance had transaction histories for only two of  
Vannatta’s three trading accounts at Scotia, the TFSA and RRSP accounts but not  
the Regular account. Vannatta admitted during his compelled interview that  
Aston Asset Management Compliance could only have obtained copies of the  
transaction histories for his trading accounts from Vannatta.  
[214] Vannatta could not explain during his compelled interview how he failed to  
include his Scotia Regular account, where he executed his May 14 Amaya trade,  
in his certified list of accounts he provided to Aston Asset Management  
Compliance in July 2014.  
[215] We conclude that Vannatta intentionally failed to provide a transaction history for  
his Scotia Regular account and to list that account on his certificate and then  
attempted to evade Staff’s questions about the May 14 trade by claiming not to  
recall it.  
ii.  
Vannatta had pre-cleared all of his Amaya trades  
[216] Vannatta told Staff that he had pre-cleared his trades on April 29, May 6, and  
May 14, 2014. There were no pre-clearance forms for these trades and no  
evidence of approvals from Rnjak for these trades. Vannatta’s position is that  
Rnjak lost or disposed of the pre-clearance forms and that Rnjak’s procedures  
were lax resulting in Rnjak not always approving requested trades by email.  
Given our conclusion that Vannatta intentionally concealed his trading from  
Aston Asset Management Compliance, we conclude that it is more likely than not  
that Vannatta also did not attempt to pre-clear any of this trading in Amaya  
shares. We therefore do not accept Vannatta’s statement that he did pre-clear  
the trades.  
iii.  
Vannatta had provided brokerage statements to Aston  
Asset Management Compliance  
[217] Vannatta’s position is that he provided brokerage statements to Aston Asset  
Management Compliance but that they must have been lost or disposed of.  
There were no brokerage statements for Vannatta in evidence. Rnjak was unable  
to remember if he provided original documents to the earlier internal review and  
what then happened to those records. Vannatta suggests it is as likely that  
Vannatta provided the statements and they were collected as part of that review  
and then lost.  
[218] We find that, given our finding that Vannatta concealed his trading from Aston  
Asset Management Compliance, it is more likely than not that Vannatta failed to  
give his brokerage statements to Aston Asset Management Compliance as part of  
that concealment. We therefore find that Vannatta did mislead Staff on this  
point.  
35  
     
iv.  
Vannatta did not choose the 45-day range for his  
Scotia transaction histories and had provided Aston  
Asset Management Compliance with a transaction  
history for his Scotia Regular account  
[219] Vannatta told Staff that he did not intentionally set a 45-day range for the  
transaction histories for his Scotia RRSP and TFSA accounts that he provided to  
Aston Asset Management Compliance and that he had given Aston Asset  
Management Compliance a transaction history for his Scotia Regular account. We  
find the confluence of the following factors leads us to find that these statements  
are more likely than not untrue:  
a.  
b.  
c.  
Aston Asset Management Compliance only had transaction histories for  
two of the three accounts, which Vannatta admitted could only have come  
from him;  
the only accounts Vannatta listed in the certificate he provided to Aston  
Asset Management Compliance were the same two accounts for which  
transaction histories were provided;  
When Vannatta accessed his Scotia account to print transaction histories  
to give to Aston Asset Management Compliance all three of his accounts  
were listed, and Vannatta had no explanation for why he would not have  
seen his Scotia Regular account; and  
d.  
In response to Rnjak’s request for brokerage statements in late June  
2014, Vannatta provided transaction histories for his RRSP and TFSA  
accounts dated June 26, 2014 with a 45-day range that effectively  
resulted in his April 29 and May 6 trades not being included in the  
histories and failed to provide a transaction history for his Regular account  
where, even if he had selected the 45-day his May 14 trade would have  
been evident.  
[220] We conclude that it is more likely than not that Vannatta misled Staff about his  
trading during Staff’s investigation.  
[221] We find that each of these statements was material to Staff’s investigation of  
potential insider trading and tipping in Amaya shares during the Relevant Period  
and, at the time, and in light of the circumstances, were misleading, contrary to  
subsection 122(1)(a) of the Act.  
(e)  
Did Vannatta tip his relatives with the Amaya MNPI?  
[222] Staff alleges that Vannatta tipped his brother CV, his cousin DU and DU’s wife  
NU, and another cousin KU. We have determined that the Acquisition was MNPI  
about Amaya, and that Vannatta was in a special relationship with Amaya. To  
find that Vannatta tipped his relatives, the sole remaining factor Staff must  
establish is that Vannatta informed his relatives of the Amaya MNPI. We find, for  
the reasons below, that Vannatta did inform his relatives because their trading  
was timely, profitable and either uncharacteristic or opportunistic.  
[223] Staff did not lead any evidence of telephone calls or emails between Vannatta  
and any of his relatives. However, given the other circumstantial evidence in  
support of Vannatta having tipped his relatives, the lack of direct evidence is  
overcome by the significant circumstantial evidence.  
36  
   
[224] In addition to the individual factors listed below for each of Vannatta’s relatives,  
we consider the fact that all four of them traded in Amaya during the Relevant  
Period starting on April 30, 2014, the day after we found Vannatta to have  
learned about the Amaya MNPI, a significant factor in arriving at our conclusion  
on this point.  
i.  
CV  
[225] CV had previously bought shares of Amaya in August 2013 and sold them in  
October of that year. He did not buy any other gaming stock and, in 2014, did  
not invest in Amaya until the Relevant Period. CV bought 380 Amaya shares on  
April 30, 2014, one day after Vannatta learned of the Acquisition. CV held onto  
his Amaya shares until after the announcement on June 12, 2014. We find CV’s  
trading to be opportunistic.  
[226] The amount CV invested in his Amaya shares was more than he spent to  
purchase any other security in the January 1, 2012 to June 30, 2014 time  
period. In addition, CV’s significant profit from his Amaya trade was the highest  
from any trading he did during this two-year period.  
ii.  
DU and NU  
[227] DU is Vannatta’s cousin. NU is DU’s wife. DU had not previously owned Amaya or  
any other gaming security. Similar to CV, NU had previously invested in Amaya,  
buying in November 2013 and selling in February 2014. NU did not buy the  
securities of any other gaming industry company. Nor did she buy Amaya prior  
to the Relevant Period when Amaya’s share price dropped, post the release of  
their 2013 results, or in response to an April 24 article in the Globe and Mail that  
provided a favourable view of Amaya, stating it was “not quite the gamble it was  
just over a month ago”.  
[228] The day after Vannatta learned about the Acquisition, April 30, 2014, DU and NU  
began buying Amaya shares. Between April 30 and June 10, DU acquired 9,002  
Amaya shares. DU sold 150 Amaya shares on June 10 and then sold the  
remainder of his shares between June 16 and July 7, following the June 12  
announcement. DU bought 480 Amaya shares on June 23 and sold them on July  
8 for a small profit. NU started buying Amaya shares on April 30 and by May 23  
had acquired 4,401 shares. NU sold all of her Amaya shares on July 8.  
[229] The amount DU spent on his Amaya purchases during the Relevant Period was  
the highest amount he spent on any security during the January 1, 2012 to June  
30, 2014 time period. The amount that NU spent on her 2014 purchases of  
Amaya was the highest that she spent on any security in that same time period.  
The profits each of DU and NU made on their trading in Amaya shares were the  
largest profits each of them earned on trading any other security in the January  
2012 to December 2014 period.  
iii.  
KU  
[230] KU is another of Vannatta’s cousins. He had not purchased shares of Amaya, or  
any other gaming industry security, prior to the Relevant Period. KU made one  
purchase of 900 Amaya shares on May 28, 2014. He sold all of his shares after  
the June 12 announcement, earning a significant profit. The amount KU spent on  
his Amaya shares was the largest investment he made in the securities market  
in the January 1, 2012 to June 30, 2014 time period.  
37  
     
(f)  
Conclusion on tipping  
[231] Based on the circumstantial evidence relating to the timing of the trades, the  
uncharacteristic and/or opportunistic nature of the trades and the profit made,  
we infer that it is more likely than not that Vannatta tipped CV, DU, NU and KU.  
(g)  
Was Vannatta’s concealment of his Amaya trading  
from Aston Asset Management abusive and / or does  
it engage an animating principle of the Act  
[232] Staff alleges that Vannatta’s engaged in conduct that was both abusive of the  
capital markets and a failure to adhere to high standards of conduct expected of  
him as a registrant, thereby engaging an animating principle of the Act, because  
he concealed his trading in Amaya securities from Aston Asset Management  
Compliance.  
[233] The specific components of Staff’s allegations on this point are that Vannatta:  
a.  
b.  
c.  
failed to pre-clear his April 29, May 6, and May 14, 2014 Amaya trades  
with Aston Asset Management Compliance, contrary to Aston Financial’s  
Personal Trading Policy;  
failed to submit monthly or quarterly brokerage statements for his three  
Scotia accounts to Aston Asset Management Compliance, contrary to  
Aston Financial’s policy;  
in response to Aston Asset Management’s June 2014 internal review into  
employee and fund trading in Amaya securities, Vannatta:  
failed to provide Aston Asset Management Compliance with  
brokerage statements for his three Scotia accounts, saying they  
were unavailable;  
provided transaction histories to Aston Asset Management  
Compliance for his Scotia RRSP and Scotia TFSA accounts, which  
purportedly covered the period of March 25, 2014 to June 25, 2014  
but, as a result of Vannatta’s manipulation only showed trading for  
the 45-day period prior to June 26, 2014 (thereby concealing his  
April 29, 2014 purchase of Amaya securities in his Scotia RRSP  
Account, and his May 6, 2014 purchase of Amaya securities in his  
Scotia TFSA Account); and  
failed to provide to Aston Asset Management Compliance with a  
transaction history for his Scotia Regular account, the account he  
used for his May 14, 2014 purchase of Amaya; and  
d.  
with respect to the July 2014 Aston Asset Management Compliance  
request to provide a certificate listing all of his brokerage or trading  
accounts, Vannatta signed and submitted a false and incomplete  
certificate. Vannatta listed his Scotia RRSP and TFSA Accounts but made  
no mention of his Scotia Regular Account on the certificate.  
[234] Vannatta’s evidence, read in from his compelled interview by Staff, was that he  
did fill out pre-clearance forms and leave them on Rnjak’s desk, he did not recall  
providing transaction histories to Rnjak and he did not recall selecting the 45-day  
period for his two account transaction histories.  
38  
   
[235] Vannatta argues that Aston Asset Management Compliance either lost or  
destroyed his pre-clearance forms and the brokerage statements for all of his  
Scotia accounts. He submits this argument is supported by Rnjak’s inability to  
independently recall the events of 2014 without being shown documents to  
refresh his memory, Rnjak’s inability to remember the details of the Slemko  
review in 2016 (including what documents were provided to external counsel and  
what became of those documents), and Staff’s alleged breach of the witness  
exclusion order that allowed Rnjak to tailor his evidence about Vannatta.  
[236] Vannatta further submits that the 45-day range for the transaction histories that  
were provided to Aston Asset Management Compliance were just as likely to be  
the result of human error as an intent to conceal. Bawden, Senior Compliance  
Officer for Scotia iTrade, gave evidence that the 45-day range was a default  
setting that would result regardless of whether any other period was selected by  
the user. According to Bawden, there is a button to override the default setting,  
however when asked about it Bawden was unable to locate it during his  
testimony based on the materials put before him.  
[237] We do not accept Vannatta’s arguments. We find that it is more likely than not  
that Vannatta concealed his trading from Aston Asset Management Compliance  
based on the following evidence, that includes the same confluence of factors  
that led us to conclude that Vannatta misled Staff:  
a.  
Aston Asset Management’s internal review of trading in Amaya occurred in  
July 2014 and included the July 8, 2014 email and memorandum to all  
access persons to provide brokerage statements for all of their  
brokerage/trading accounts for April through June 2014 and to sign a  
certificate identifying all of their brokerage/trading accounts;  
b.  
c.  
in response to that request Vannatta provided a signed and dated  
certificate that excluded his Scotia Regular account, which he had used for  
the May 14, 2014 Amaya trade;  
in his compelled interview Vannatta confirmed that transaction histories  
for his Scotia accounts were accessed online through his account and  
conceded that Rnjak could only have received copies of transaction  
histories for Vannatta’s Scotia RRSP and TFSA accounts from Vannatta.  
Whether Rnjak wrote Vannatta’s name on the top of the transaction  
histories is irrelevant in our view; the evidence before us was there was  
no way Rnjak could have obtained these documents other than from  
Vannatta and Vannatta admitted this during his compelled interview with  
Staff;  
d.  
e.  
Vannatta also stated in his compelled interview that despite being able to  
see a list of all of his accounts when he logged into his Scotia account, he  
could not remember why he provided Aston Asset Management  
Compliance with a certificate that did not include his Scotia Regular  
account;  
Aston Asset Management Compliance requested brokerage statements on  
July 8, 2014. Aston Asset Management did not provide brokerage  
statements for any of Vannatta’s three Scotia accounts to Staff during the  
investigation. The transaction histories in Aston Asset Management’s  
possession for Vannatta’s Scotia RRSP and TFSA accounts are dated June  
26, 2014. Vannatta’s April 29, 2014 Amaya trade was in his Scotia RRSP  
39  
account. His May 6, 2014 Amaya trade was in his Scotia TFSA account. By  
requesting transaction histories for these accounts on June 26 with the  
45-day default period (May 12) the reports would not include the April 29  
and May 6 trades. While we have found that Vannatta’s April 29, 2014  
trade was not an insider trade, we refer to it here as it is relevant to the  
analysis of whether Vannatta concealed his trading from Aston Asset  
Management Compliance;  
f.  
had Vannatta provided a transaction history for his Scotia Regular account  
dated June 26, 2014, as the other transaction histories were dated, it  
would have shown the May 16, 2014 Amaya trade. We infer this is why  
Vannatta did not provide Aston Asset Management Compliance with a  
transaction history for the Scotia Regular account or include the account  
in his certified list of accounts; and  
g.  
in Rnjak’s June 17, 2014 email to Killeen about Aston Asset Management’s  
internal review of Amaya trading, Rnjak refers to Kitmitto’s and SR’s  
request for pre-clearance to trade Amaya on April 25, 2014, the placing  
and lifting of the restriction on Amaya and one Aston Asset Management  
fund’s trade in Amaya on June 13 after the restriction was lifted. There  
was no reference in this contemporaneous document to any other request  
for pre-clearance to trade Amaya or trades in Amaya during this period.  
[238] While we do not consider Vannatta’s April 29 Amaya share purchase in our  
analysis of the insider trading allegation against him, Vannatta’s apparent efforts  
to conceal his April 29, 2014 Amaya purchase from Aston Asset Management  
Compliance indicates that he was aware his friend and office mate, Kitmitto, was  
being brought over the wall on a strategic transaction involving Amaya and that  
Vannatta thought trading on that information was inappropriate and had to be  
concealed.  
[239] We find that the combination of Vannatta’s signed certificate that does not list  
the account where he conducted the May 14, 2014 trade, the lack of a  
transaction history for that account, and Aston Asset Management’s possession  
of transaction histories (which they could only have obtained from Vannatta) for  
his two other Scotia accounts, printed on a date with a date range that  
effectively excludes his April 29 and May 6, 2014 Amaya trades, establishes it is  
more likely than not that Vannatta concealed his trading in Amaya from Aston  
Asset Management Compliance.  
[240] The Commission has previously found that the integrity of the regulatory  
framework for registrant firms depends upon the adherence to appropriate  
compliance structures and that circumventing one’s employer’s compliance  
function is conduct contrary to the public interest.78 The Commission has  
highlighted the public interest in registrants being honest and of good reputation  
and in registrants acting in accordance with the concepts of honesty, integrity  
and fair dealing among classes of investors.79  
[241] We find that Vannatta’s circumvention of Aston Asset Management’s compliance  
function to conceal his trading in Amaya directly engages the fundamental  
principles of securities regulation, specifically s. 2.1, paragraph 2. iii. that  
78  
Agueci Merits at para 175; Rowan at para 160  
Agueci Merits at para 126 citing Danuke (Re), (1981) 2 OSCB 31c at 43c  
79  
40  
requires the maintenance of high standards of fitness and business conduct to  
ensure honest and responsible conduct by market participants. This includes  
registrants such as Vannatta. As a registrant and an access person with a  
registrant, Vannatta ought to be held to a higher standard of conduct and his  
conduct fell below the high standard expected of him.  
[242] We also find that Vannatta’s conduct was abusive of the capital markets. In  
Agueci Merits, the Commission found an employee of a registered firm to have  
engaged in abusive conduct when she placed trades in a secret account she hid  
from the firm and impersonated her mother when making trades.80 We find  
Vannatta’s hiding his trading in Amaya from his employer to be equally abusive.  
[243] Although we find that Vannatta’s conduct is both abusive and engages an  
animating principle of the Act, either finding is a sufficient basis for our  
conclusion that Staff has established this public interest allegation against  
Vannatta.  
Christopher  
[244] We found that Kitmitto was in a special relationship with Amaya and that the  
Acquisition was MNPI about Amaya. Therefore, the issues we need to decide  
regarding Christopher are:  
a.  
did Kitmitto tip him about the Amaya MNPI and did he trade Amaya  
securities while he had that information;  
b.  
c.  
d.  
was he in a special relationship with Amaya as defined in s. 76(5)(e);  
did he tip Claudio about the Amaya MNPI; and  
did he mislead Commission staff?  
(a)  
Did Kitmitto tip Christopher with the Amaya MNPI and  
did Christopher trade Amaya shares while in  
possession of that information?  
[245] Christopher and Kitmitto were close friends with a relationship originating in  
university. They were roommates from 2011 and in 2014 they lived together in a  
condominium owned by Claudio. The two spoke daily and socialized regularly.  
Christopher and Kitmitto knew each other’s families and Kitmitto had visited  
Christopher and Claudio at Claudio’s home.  
[246] Both Christopher and Kitmitto testified that they did not regularly discuss stocks  
that Kitmitto was covering. Kitmitto did, however, occasionally mention stocks to  
Christopher that he thought might be of interest to Christopher. Both Kitmitto  
and Christopher testified that Kitmitto brought Amaya to Christopher’s attention  
in 2013 because of Christopher’s interest in gaming and sports betting.  
[247] Christopher testified that he tended to rely on his own research for investment  
decisions, including Stockhouse posts and BNN.  
[248] Christopher had a business degree. In 2014 he operated two businesses, a  
cosmetics business and a walk-in bathtub distribution business, from which he  
earned an annual income of $85,000. Christopher had never worked in the  
securities industry nor acquired any securities industry qualifications.  
80  
Agueci Merits at para 716  
41  
   
[249] Christopher knew that Kitmitto worked as an analyst for Aston Asset  
Management, which he understood to mean that Kitmitto researched different  
companies in the gaming and tech industry and provided recommendations to  
fund managers.  
[250] Christopher had a history of trading. Starting in 2009, Christopher used an  
annual dividend from Claudio’s professional dentistry corporation to buy shares.  
Claudio testified that he set up the dividends to support Christopher’s trading in  
a Tax-Free Savings Account. The annual dividend was based on the maximum  
allowable TFSA contribution of $5,000 to $5,500.  
[251] Christopher invested almost all of the dividends he received in one or two stocks  
which he held for several months before selling all his holdings and making a  
new investment. Prior to 2014, Christopher invested in small cap mining and  
resource stocks. He and Claudio shared investment ideas and typically invested  
in the same stocks. In 2012, both Christopher and Claudio suffered significant  
losses in their portfolios associated with some investments in the mining /  
resource sector recommended by Christopher.  
[252] Claudio did not pay a dividend to Christopher in 2012 or 2013. Claudio and  
Christopher both testified that the gap in dividend payments was in part due to  
the general market downturn’s impact on Claudio’s professional finances and in  
response to their investment losses. Christopher did not trade any securities  
during this same period because he had no funds to invest.  
[253] Christopher testified that he was interested in Amaya because it was one of the  
few gaming companies listed on the TSX and he thought it had a lot of potential  
because of its strategy of seeking a global audience and obtaining regulatory  
approvals for online gaming in the United States.  
[254] According to Christopher, by the time he invested in Amaya on May 8, 2014 he  
knew that Amaya:  
a.  
was one of the few gaming companies listed on a Canadian stock  
exchange;  
b.  
c.  
had won the stock of the year award in January 2014;  
had made several significant acquisitions, through which it had entered  
into lucrative supply agreements and obtained contracts with US state  
governments that started to legalize online gambling;  
d.  
was being rumoured on Stockhouse to continue to grow through  
acquisition;  
e.  
f.  
was discussed in the April 24, 2014 Globe and Mail feature article;  
was mentioned in the Calvinayre.com article of April 29, 2014 which was  
also commented on in a Stockhouse post on May 3, 2014;  
g.  
was mentioned as one of the three gambling stock picks in a Motley Fool  
article posted on Stockhouse on May 2, 2014; and  
h.  
was discussed on several occasions on BNN market calls.  
[255] Christopher testified that, based on all his research over the preceding 6 months,  
and watching the price movements in Amaya in April 2014, he decided to buy  
Amaya on May 8, 2014. At that time, according to Christopher, he knew a