Dale R. Ponder

The Ontario Securities Commission and the respondent agreed to a settlement regarding allegations that the respondent breached a director and officer ban imposed in a previous Tribunal order.

The respondent admitted to remaining a director and officer of two issuers for approximately three years in contravention of the ban.

The Tribunal approved the settlement, finding the proposed sanctions, which included an extended ban and a $6,000 administrative penalty, to be reasonable and in the public interest.

The Ontario Securities Commission and the respondent agreed to a settlement regarding allegations that the respondent breached a previous director and officer ban.

The respondent had remained a director and officer of one non-reporting issuer and became a director and officer of another, contravening a 2023 Tribunal order.

The respondent subsequently resigned and dissolved the entities.

The Tribunal approved the settlement, finding the proposed sanctions, including an extended ban until 2029 and a $7,000 administrative penalty, to be within a reasonable range and in the public interest.

The Ontario Securities Commission alleged that the respondent breached a 2022 Tribunal order banning him from acting as a director or officer of an issuer for ten years.

The respondent failed to participate in the written hearing.

The Tribunal found that the respondent breached the order by remaining a director of two companies for up to three years after the ban was imposed.

The Tribunal ordered the respondent to resign from any current positions, extended the director and officer ban by four years and six months, and ordered an administrative penalty of $7,500 and costs of $4,328.75.

The Ontario Securities Commission sought approval of a settlement agreement with the respondent, who had breached a previous Tribunal order banning him from acting as a director or officer of any issuer for three years.

The respondent admitted to becoming a director of two non-reporting issuers during the ban period.

The Tribunal approved the settlement, which included a renewed three-year ban and a $4,500 administrative penalty, finding the sanctions proportionate and in the public interest given the respondent's self-correction, accountability, and cooperation.

The Ontario Securities Commission sought approval of a settlement agreement with the respondent, who admitted to committing fraud and violating registration and prospectus requirements by selling and brokering promissory notes for real estate projects.

The respondent continued to accept investor funds despite knowing the severe liquidity issues of the companies involved, resulting in approximately $90 million in investor losses and her subsequent bankruptcy.

The Tribunal approved the settlement, which included permanent market participation bans but no disgorgement order, noting that a disgorgement order could compete with investor recovery in ongoing civil proceedings.

Katanga Mining Limited applied under s. 17(1) of the Securities Act to disclose confidential documents from an Ontario Securities Commission investigation to the internal and external counsel of its parent company, Glencore.

Glencore is a defendant in a UK civil claim and the UK Court ordered disclosure of these documents.

The Capital Markets Tribunal granted the application, finding it in the public interest to permit narrow disclosure to Glencore's counsel for the purpose of assessing relevance to the UK claim, provided the counsel sign undertakings to be bound by the confidentiality provisions of s. 16 of the Act.

Riot Platforms, Inc., the largest shareholder of Bitfarms Ltd., applied to the Capital Markets Tribunal for an order under s. 127(1) of the Securities Act to cease trade a shareholder rights plan adopted by Bitfarms.

The plan featured a 15% trigger, which was below the 20% threshold established in the take-over bid regime.

Riot did not allege a contravention of Ontario securities law but argued the plan was contrary to the public interest.

The Tribunal clarified the standard for intervening without a contravention, holding that an applicant must demonstrate the conduct undermines clearly discernible animating principles of securities law in a real and substantial way, with a public dimension.

The Tribunal found that the 15% trigger undermined the predictability and certainty of the take-over bid regime.

As Bitfarms failed to demonstrate exceptional circumstances justifying the departure from the 20% threshold, the Tribunal concluded it was in the public interest to cease trade the plan.

The Capital Markets Tribunal held a sanctions hearing after finding that the respondent breached a 2004 order permanently banning him from acting as a director or officer of an issuer and from trading in securities for 15 years.

The Tribunal ordered permanent market participation bans, disgorgement of over $3.2 million and US$10.7 million, administrative penalties totaling $1,000,000, and $300,000 in costs.

The Tribunal found the respondent's conduct to be a flagrant and recurrent breach of a Tribunal order, warranting significant specific and general deterrence.

Aimia Inc. brought an application under s. 104 of the Securities Act alleging that Mithaq Capital SPC's acquisition of shares a year prior constituted a deemed take-over bid because Mithaq acted jointly with others to exceed the 20% threshold.

Mithaq brought a motion to dismiss the application on a preliminary basis.

The Capital Markets Tribunal found that while Aimia had standing to bring the application, the application was an abuse of process.

The Tribunal dismissed the application because Aimia's long delay in seeking relief, combined with significant intervening events, made the application a misuse of the Tribunal's procedure.

The moving party brought a motion to strike the Commission's statement of allegations against him, arguing it failed to set out material facts establishing he committed the alleged breaches of the Securities Act.

The Capital Markets Tribunal declined to strike the allegations but ordered the Commission to provide particulars regarding the allegation that the moving party breached s. 126.1(1)(b) of the Act.

The Tribunal found the allegations regarding false or misleading statements under s. 122(1)(a) were sufficient.

Staff of the Ontario Securities Commission alleged that the respondent breached a 2004 settlement order which permanently banned him from acting as a director or officer of an issuer and banned him from trading in securities for 15 years.

The Tribunal found that the respondent breached the director and officer ban by acting as a director and/or officer of 38 Ontario corporations.

The Tribunal also found that the respondent breached the trading ban by participating in the sale of shares in an Ontario corporation and by participating in several offshore stock secured financings where he acted in furtherance of trades.

The allegation of conduct contrary to the public interest was dismissed as no additional conduct beyond the statutory breaches was identified.

Mithaq Canada Inc. applied to the Capital Markets Tribunal to cease trade a private placement by Aimia Inc., arguing it was an abusive defensive tactic designed to thwart Mithaq's take-over bid.

Mithaq also sought to set aside a decision of the Toronto Stock Exchange (TSX) that conditionally approved the private placement without requiring shareholder approval.

Aimia brought a cross-application to deny Mithaq the use of the 5% exemption for share purchases.

The Tribunal dismissed both applications.

It found that Aimia had a serious and immediate need for financing, and the private placement was negotiated largely before Mithaq's bid became imminent.

Although the private placement altered the bid dynamics, it was not clearly abusive.

The Tribunal also found no grounds to interfere with the TSX's decision, as the TSX did not err in principle and there was no compelling new evidence.

Finally, the Tribunal declined to alter the minimum tender condition or deny Mithaq the 5% exemption, finding no exceptional circumstances or lack of good faith.

The applicant sought a review of sanctions imposed by the Canadian Investment Regulatory Organization (CIRO) after the Capital Markets Tribunal previously set aside one finding of misappropriation.

The applicant sought to introduce new affidavit evidence regarding his ability to pay and the remaining misappropriation finding.

The Tribunal declined to admit the new evidence, finding it was not new or compelling and amounted to an inappropriate collateral challenge.

The Tribunal reduced the fine for misappropriation from $50,000 to $40,000 to reflect the set-aside finding, but upheld the remaining sanctions, including a permanent ban and $25,000 in costs, noting the severity of the remaining misconduct.

Mithaq Canada Inc. applied to the Capital Markets Tribunal to cease trade a shareholder rights plan and a private placement adopted by Aimia Inc., alleging they were improper defensive tactics against Mithaq's unsolicited take-over bid.

Mithaq sought interim relief pending the full hearing.

The Tribunal ordered that the private placement be cease traded unless Aimia undertook that any securities issued under it would not be tendered to any alternative take-over bid or issuer bid.

The Tribunal dismissed Mithaq's requests for additional undertakings, including requiring Aimia to segregate the private placement proceeds or assume responsibility for investor breaches.

The respondent, Oscar Furtado, brought a motion to adjourn the merits hearing indefinitely due to serious physical and mental health issues.

He also requested that the motion be heard in confidence and that documents containing his personal health information be sealed.

The Capital Markets Tribunal found that Furtado's health constituted exceptional circumstances warranting an adjournment, but declined to grant an indefinite delay, rescheduling the hearing to November 2023.

Applying the Sherman Estate test, the Tribunal ordered that specific details regarding Furtado's symptoms, diagnosis, and treatment be redacted from the adjudicative record and hearing transcript to protect his personal dignity, while maintaining the public's right to know how his health issues affected his ability to participate.

The applicant, a former registered representative, applied for a hearing and review of CIRO decisions finding he misappropriated client funds, effected unauthorized trades, and failed to cooperate with an investigation.

The applicant, who was self-represented, argued he was denied procedural fairness due to his health and that the findings were incorrect.

The Capital Markets Tribunal dismissed most of the application, finding the CIRO panel did not err in denying an adjournment or proceeding with a two-member panel.

However, the Tribunal set aside the finding that the applicant misappropriated funds from two specific clients, concluding the CIRO panel overlooked material documentary evidence (a promissory note and a complaint letter) supporting the applicant's claim that the funds were a personal loan.

The matter regarding those two clients was remitted to CIRO Staff to decide whether to rehear the allegation.

Staff of the Ontario Securities Commission brought a motion to adjourn the merits hearing because its lead counsel left the Commission and newly retained external counsel was unavailable for the first five scheduled dates.

The Tribunal dismissed the motion, finding that Staff failed to establish exceptional circumstances under Rule 29(1) of the Rules of Procedure.

Staff did not provide evidence of any steps taken to avoid an adjournment, such as considering internal counsel or searching for other available external counsel.

Staff of the Ontario Securities Commission brought a motion for a further and better witness summary from the respondent, Oscar Furtado.

Furtado had provided an amended witness summary stating he would testify generally in accordance with his compelled interview transcripts and refer to documents in Staff's disclosure.

The Capital Markets Tribunal found the amended witness summary deficient under Rule 27(3) of the Tribunal's Rules of Procedure.

The Tribunal held that stating the witness would testify 'generally in accordance with' transcripts created ambiguity about the scope of evidence, failing to disclose its substance.

Furthermore, the broad reference to Staff's disclosure did not sufficiently identify the documents to be referred to.

The Tribunal ordered Furtado to deliver a further and better witness summary.

Following a merits decision finding that the respondents engaged in illegal distribution of securities, unregistered trading, securities fraud, and improper revenue recognition, the Capital Markets Tribunal determined the appropriate sanctions and costs.

The Tribunal ordered disgorgement totaling $4.91 million, administrative penalties totaling $3.175 million, and significant market restrictions, including permanent bans for the GBR parties and multi-year bans for the First Global parties.

The Tribunal also ordered the respondents to pay costs totaling $1,080,285, apportioned based on their respective roles and the time spent investigating and litigating the various contraventions.

Staff of the Ontario Securities Commission alleged that Steer Technologies Inc. published misleading news releases regarding its COVID-19 contact-tracing platform and failed to correct forward-looking information.

The individual respondents admitted to failing to ensure the accuracy of the releases and authorizing a relationship with a company publishing biased promotional articles.

The Capital Markets Tribunal approved the settlement agreement, finding the agreed sanctions, including financial payments, governance reviews, and director bans, achieved specific and general deterrence and were in the public interest.