Mary G. Condon

The applicants, George Schwartz and Victor York, sought an adjournment of the hearings on the merits in two related matters before the Ontario Securities Commission.

The applicants argued that an adjournment was necessary due to a pending appeal of an earlier Commission decision and the potential hardship to witnesses.

The Commission dismissed the application, finding that the public interest required the matters to proceed as scheduled, given the considerable time they had taken to reach the hearing stage.

The Commission noted that the applicants could renew their request if the timing of the appeal became clearer.

The filer applied for exemptive relief from the related issuer requirements and conflict of interest prohibitions under the Securities Act and National Instrument 31-103.

The relief was sought to permit mutual funds and pooled funds to invest in debt and equity securities of related issuers in the secondary market and primary offerings, and to permit pooled funds to invest in underlying funds.

The Ontario Securities Commission granted the requested relief, subject to conditions including approval by the funds' independent review committees, compliance with independent pricing and transparency requirements, and investment restrictions for primary offerings.

Nunavut Iron Ore Acquisition Inc. applied to the Ontario Securities Commission for an order cease trading the shareholder rights plan of Baffinland Iron Mines Corporation.

Nunavut had made an unsolicited takeover bid for Baffinland, which was followed by a higher competing offer from ArcelorMittal supported by the Baffinland board.

The Commission found that the rights plan had served its purpose by facilitating an auction and generating a competing bid.

Maintaining the rights plan would only serve to eliminate the timing advantage of Nunavut's first-in-time offer and force an extension, potentially depriving shareholders of a revised offer.

The Commission concluded it was in the public interest to cease trade the rights plan immediately, allowing shareholders to decide between the competing offers.

The applicants, Gryphon Investment Counsel Inc. and Gryphon Balanced Fund, applied for exemptive relief from the investment restrictions in the Securities Act.

The relief sought would permit the top fund to invest in a bottom fund managed by an associate of the top fund's manager in a fund-on-fund structure.

The Ontario Securities Commission granted the requested relief, subject to standard conditions for fund-on-fund structures, including that no duplicate management or incentive fees are payable.

General Motors Company applied for exemptive relief from the prospectus and registration requirements under the Securities Act to permit the posting of electronic roadshow materials on commercial websites during the waiting period of a cross-border offering.

The Ontario Securities Commission granted the relief, subject to conditions including the provision of a contractual right of action for Canadian purchasers in the event of a misrepresentation in the materials.

The Ontario Securities Commission held a hearing to consider whether IMAGIN Diagnostic Centres Inc. and Patrick J. Rooney breached the registration requirements of the Securities Act.

The Commission found that IMAGIN acted as a market intermediary by employing a sales team to actively solicit and sell its securities to investors, raising approximately $14 million.

As a market intermediary, IMAGIN was not entitled to rely on the accredited investor or closely-held issuer exemptions from registration.

The Commission also found that Mr. Rooney, although not formally appointed, was a de facto officer and director who controlled IMAGIN and authorized, permitted, or acquiesced in its unregistered trading.

Both respondents were found to have breached subsection 25(1)(a) of the Act.

The applicant, Solium Capital Inc., applied for exemptive relief from the dealer registration and prospectus requirements of the Securities Act in respect of trades in mutual fund securities to tax-assisted capital accumulation plans (CAPs).

The Ontario Securities Commission granted the requested relief, subject to conditions including that plan sponsors provide CAP members with specific information about the mutual funds, fees, and performance, and that the funds comply with National Instrument 81-102.

The respondent pleaded guilty to criminal fraud over $5,000 for operating a massive Ponzi scheme involving over $45 million in investor funds.

Staff of the Ontario Securities Commission sought permanent market bans under the inter-jurisdictional enforcement provision in subsection 127(10) of the Securities Act.

The Commission held that subsection 127(10) can operate retrospectively because its purpose is to protect the public rather than to punish.

Finding that the respondent's criminal conviction arose from a course of conduct related to securities, the Commission concluded it was in the public interest to permanently ban the respondent from trading, acquiring securities, and acting as a director or officer.

Vaaldiam Resources Ltd. applied for a decision under the securities legislation of multiple jurisdictions that it is no longer a reporting issuer.

The Filer recently became a wholly-owned subsidiary of Vaaldiam Mining Inc. and its common shares were de-listed from the Toronto Stock Exchange.

The Ontario Securities Commission, acting as principal regulator, granted the requested exemptive relief, determining that the Filer met the necessary criteria to cease being a reporting issuer.

The applicant, an investment advisor, sought a stay of an Ontario Securities Commission decision dismissing his application for a hearing and review of an IIROC disciplinary decision.

The IIROC hearing panel had permanently banned the applicant and imposed a fine and costs for having undisclosed financial interests in client accounts.

The Commission considered the RJR MacDonald test for granting a stay pending appeal.

Finding that the Divisional Court was in a better position to determine the merits of the appeal and whether a stay should be granted, the Commission granted a short 60-day extension of the interim stay to allow the applicant to commence an appeal and bring a stay motion before the Divisional Court.

The applicant sought a hearing and review of a decision by the Ontario District Council of the Investment Industry Regulatory Organization of Canada (IIROC), which found he engaged in conduct unbecoming by having an undisclosed financial interest in client accounts.

The Ontario Securities Commission applied a restrained approach to reviewing the self-regulatory organization's decision, finding that the applicant failed to demonstrate that the District Council proceeded on an incorrect principle, erred in law, or overlooked material evidence.

The application was dismissed.

The applicant, acting as plan sponsor and administrator of a group registered retirement savings plan, applied for exemptive relief from the dealer registration and prospectus requirements of the Securities Act.

The relief was sought in respect of trades in securities of mutual funds to plan members.

The Ontario Securities Commission granted the requested relief, subject to conditions including the provision of specific information, performance reporting, and investment decision-making tools to plan members.

Staff of the Ontario Securities Commission brought a motion seeking to disclose testimony compelled from the respondent, Irwin Boock, during an SEC investigation to his co-respondents in an OSC administrative proceeding.

Boock opposed disclosure, relying on an undertaking by Staff that the evidence would not be used in the OSC proceeding and an ethical wall would be maintained.

The Commission held that the undertaking restricted Staff's use of the evidence but did not prevent its disclosure to co-respondents, who are entitled to full disclosure of relevant information to make full answer and defence.

The Commission also found that compelling the testimony and disclosing it did not violate Boock's Charter rights against self-incrimination, as the proceeding was regulatory, not criminal.

Disclosure to the co-respondents was ordered, while Staff was directed to maintain the ethical wall.

Scotia Asset Management LP applied for exemptive relief on behalf of its mutual funds to permit them to purchase non-exchange-traded debt securities of related entities in the secondary market.

The Ontario Securities Commission granted the relief, subject to conditions including that the independent review committee of the funds approves the transactions and that specific pricing requirements are met to ensure the funds do not pay more than the ask price.

The applicant, a registered portfolio manager, applied for exemptive relief from the prohibition against knowingly causing an investment portfolio to purchase or sell securities from or to a responsible person, and from the related monthly reporting requirements.

The relief was sought to allow a mortgage fund to continue purchasing and selling mortgages from and to affiliates of the portfolio manager.

The Ontario Securities Commission granted the requested relief, subject to conditions including approval and oversight by the fund's independent review committee and specific continuous disclosure requirements.

Scotia Asset Management LP applied for exemptive relief on behalf of its mutual funds to permit the funds to purchase non-exchange-traded debt securities of related persons in the secondary market.

The Ontario Securities Commission granted the requested relief from the related shareholder, related party, and related issuer prohibitions in the Securities Act.

The relief was granted subject to conditions, including that the purchases be consistent with the funds' investment objectives, be approved by the funds' independent review committees, and comply with specific pricing requirements to ensure the funds do not pay more than the ask price.

The Independent Financial Brokers of Canada (IFBC) applied for a review of the Ontario Securities Commission's decision to approve an amendment to a Mutual Fund Dealers Association (MFDA) by-law.

The MFDA and Commission Staff challenged the panel's jurisdiction and the IFBC's standing.

The hearing panel dismissed the application, finding it lacked jurisdiction under sections 21.7, 21.1(4), and 144 of the Securities Act to review a policy decision made by the Commission as a whole.

Furthermore, the panel held that the IFBC, as an industry lobby group, was not 'directly affected' or 'affected' by the by-law approval, and therefore lacked standing to bring the application.

The Filer applied for exemptive relief from the requirement to deliver a renewal prospectus annually to mutual fund investors purchasing securities pursuant to a pre-authorized investment plan.

The Ontario Securities Commission granted the relief, subject to conditions including that investors receive notice of the relief, retain the right to terminate their investment plan at any time, and maintain their statutory right of action for misrepresentation.

The Filers applied for exemptive relief from the related issuer securities prohibitions under the Securities Act to permit pooled funds managed by the Filers to purchase debt securities of a related issuer in a primary offering and exchange-traded securities of a related issuer in the secondary market.

The Ontario Securities Commission granted the requested relief, subject to conditions including independent review committee approval and pricing requirements.

The Royal Canadian Mounted Police (the Crown) applied under section 17(1) of the Securities Act for disclosure of compelled evidence obtained by the Ontario Securities Commission during an investigation.

The evidence was sought to assist in the criminal prosecution of the respondent for fraud.

The Commission granted the application, finding that the relevant witnesses had provided written consent to the disclosure and that authorizing disclosure to the Crown, subject to strict confidentiality and use conditions, was in the public interest and would not prejudice the respondent's right to make full answer and defence.