Wendell S. Wigle

The moving parties brought a motion to revoke or vary a direction issued by the Ontario Securities Commission freezing the assets of the offshore funds.

The moving parties argued the direction contradicted a Superior Court decision refusing a Mareva injunction in a related civil proceeding.

The Commission dismissed the motion, finding that the regulatory proceeding is separate from the civil litigation and that the public interest favoured preserving the assets pending a Superior Court hearing to continue the direction.

The filer, Brookfield Infrastructure Partners L.P., applied for exemptive relief from the issuer bid requirements under the Securities Act (Ontario) to conduct a normal course issuer bid through the facilities of the New York Stock Exchange.

The filer could not rely on existing exemptions because the NYSE is not a designated exchange and Canadians beneficially own more than 10% of the outstanding units.

The Ontario Securities Commission granted the relief, provided the bid complies with U.S. securities laws and does not exceed the maximum aggregate limit mirroring TSX rules.

The Ontario Securities Commission held a hearing on the merits regarding allegations that the respondents traded and distributed securities without registration or a prospectus.

The respondents solicited investments in promissory notes via the internet, promising high returns.

The Commission found that the respondents breached sections 25(1) and 53(1) of the Securities Act by trading and distributing securities without registration or a prospectus, and acted contrary to the public interest.

The applicants sought an exemption from the insider reporting requirements under section 107(2) of the Securities Act.

The exemption was requested for the exercise of options and the acquisition, transfer, and disposition of common shares pursuant to an automatic share disposition plan.

The Ontario Securities Commission granted the requested relief, subject to the condition that the insider file an annual summary report disclosing the transactions.

Following a merits decision finding that the respondents engaged in unregistered trading, illegal distributions, and high-pressure sales tactics, the Ontario Securities Commission held a hearing to determine sanctions and costs.

The Commission found the respondents' conduct to be egregious, involving misrepresentations to investors and breaches of prior Commission orders.

The Commission ordered permanent and 20-year trading bans, director and officer bans, and telephoning prohibitions.

Administrative penalties of $200,000 each were imposed on First Global and Grossman, and $20,000 on Shuman.

The respondents were also ordered to pay costs totaling $62,573.74.

The applicant, Barclays Global Investors Canada Limited, applied for exemptive relief on behalf of several exchange-traded funds.

The requested relief included exemptions from the dealer registration requirement for disseminating sales communications, the requirement to include an underwriter's certificate in the prospectus, and take-over bid requirements for normal course purchases on the TSX.

The Ontario Securities Commission granted the requested exemptive relief, subject to certain conditions including compliance with Part 15 of NI 81-102 and undertakings regarding voting rights.

The applicant, Barrick Gold Corporation, applied for exemptive relief from the prospectus and dealer registration requirements for the issuance of its common shares upon the conversion of convertible debentures originally issued by the target company, Cadence Energy Inc. Following the applicant's take-over bid for the target, the debentures became convertible into the applicant's shares.

The Ontario Securities Commission granted the requested relief, subject to the condition that the first trade in the issued shares is a deemed distribution unless specific resale conditions are met.

Dell Inc. applied for an exemption from the issuer bid requirements under the Securities Act.

The Filer proposed to offer to rescind previous purchases of shares by Canadian-resident employees under certain employee benefit plans, due to an inadvertent failure to register the shares under U.S. securities laws.

The offer was not made generally to securityholders and Canadian participants would receive the same information and terms as U.S. participants.

The Ontario Securities Commission granted the requested exemption.

Eurogas Corporation applied for an exemption from the dealer registration and prospectus requirements under the Securities Act to distribute common shares of its non-reporting subsidiary, Eurogas International Inc., to its shareholders as a dividend-in-kind.

The shares will be held in escrow until the subsidiary files and obtains a receipt for a non-offering prospectus.

The Ontario Securities Commission granted the requested relief, provided that the first trade in the distributed shares is deemed a distribution until a receipt for the prospectus is obtained.

The Ontario Securities Commission held a hearing to consider a proposed Settlement Agreement between Staff and the respondent.

The respondent admitted to acting as an advisor and performing acts in furtherance of a trade without being registered, contrary to s. 25(1) of the Securities Act.

The Commission approved the settlement, noting the respondent's cooperation, the lack of harm to investors, and his efforts to correct his conduct.

The respondent was ordered to cease trading and acquiring securities for nine months, lost exemptions for nine months, and was ordered to pay $3,000 in costs.

The applicant, Local Matters, Inc., applied to the Ontario Securities Commission for exemptive relief from the prospectus and registration requirements under the Securities Act.

The applicant sought to post certain roadshow materials on a commercial website during the waiting period of its initial public offering to comply with U.S. securities laws.

The Commission granted the exemption, provided that the prospectuses state that purchasers in the relevant Canadian jurisdictions have a contractual right of action against the applicant and the Canadian underwriters for any misrepresentations in the website materials, equivalent to the rights under section 130 of the Securities Act.

The Ontario Securities Commission held a hearing to consider a settlement agreement between Staff and the respondent, who had previously been subject to cease trade orders.

The respondent admitted to breaching the prior orders by engaging in unauthorized discretionary trading and defrauding investors of substantial funds, for which he was also criminally convicted and sentenced to imprisonment.

The Commission approved the settlement agreement, finding that permanently restricting the respondent from registering, trading, or acting as an officer or director of any issuer was in the public interest.

The respondents brought a motion for particulars regarding allegations of illegal trading and distributions under the Securities Act.

They argued that the Statement of Allegations and the voluminous disclosure provided by Staff were insufficient to allow them to know the case to meet.

The Commission held that while Staff is not required to meet the strict standard of a criminal proceeding, the duty of procedural fairness requires sufficient particularization of the material facts.

The Commission directed Staff to provide additional specific particulars regarding the alleged illegal distributions, solicitation meetings, and representations, but dismissed the motion to enforce an alleged undertaking by Staff.

Staff of the Ontario Securities Commission brought a motion to adjourn the respondents' Constitutional Motions until the hearing on the merits.

The respondents' motions challenged the constitutionality of section 11 of the Securities Act and the use of compelled evidence, seeking a stay of proceedings.

The Commission granted Staff's motion, holding that Charter challenges and requests for a stay of proceedings should generally not be decided in a factual vacuum.

The Commission found that a complete factual record, which could only be developed at the hearing on the merits, was necessary to properly assess whether the respondents' Charter rights were violated and what remedies might be appropriate.

Staff of the Ontario Securities Commission brought a motion to defer the hearing of Constitutional Motions brought by the respondents until the hearing on the merits.

The respondents sought to challenge the constitutionality of the investigation provisions of the Securities Act and the manner in which Staff obtained and used an investigation order.

The Commission granted Staff's motion, finding that Charter challenges should generally be decided on a complete factual record rather than in a factual vacuum.

The Commission concluded that the constitutional issues could not be fairly or completely resolved without regard to the contested facts and anticipated evidence that would be presented at the hearing on the merits.

Staff of the Ontario Securities Commission brought a motion to remove counsel for the respondent, Deborah Weinstein, on the basis of a conflict of interest.

Counsel had previously represented six outside directors of the same company during the investigation phase, and Staff anticipated calling these directors as witnesses.

The Commission found that a potential conflict of interest existed because counsel might have to cross-examine his former clients.

However, balancing the public interest in the administration of justice with the respondent's right to counsel of choice, the Commission ordered a compromise: counsel could remain on the record provided the respondent retained independent counsel to conduct any cross-examination of the former clients, with strict screening measures in place.

Staff of the Ontario Securities Commission alleged that Universal Settlements International Inc. (USI) traded in securities without registration or a prospectus by offering viatical products to investors.

The central issue was whether these viatical products—fractional interests in the death benefits of life insurance policies—constituted 'investment contracts' under s. 1(1) of the Securities Act.

Applying the Howey and Pacific Coast tests, the Commission found that the products involved an investment of funds with a view to profit in a common enterprise, where profits were derived from the undeniably significant efforts of USI and its agents.

Consequently, the viatical products were deemed securities, requiring USI to comply with the Act's registration and prospectus requirements.

The Ontario Securities Commission held a hearing to determine whether Momentas Corporation and its founders, Howard Rash and Alexander Funt, violated the Securities Act by trading securities without registration.

Momentas raised over $7.8 million from the sale of convertible debentures using an in-house sales team.

The Commission found that Momentas acted as a market intermediary and could not rely on the accredited investor exemption.

Furthermore, Rash and Funt engaged in acts in furtherance of trades and, as de facto officers and directors, authorized Momentas' breaches of Ontario securities law.

A subsequent hearing was ordered to determine appropriate sanctions.

Xstrata applied to the Ontario Securities Commission for an order to cease trade Falconbridge's shareholder rights plan, which was preventing Xstrata from advancing its unsolicited take-over bid.

Falconbridge cross-applied for an order prohibiting Xstrata from making market purchases of up to 5% of Falconbridge shares under the exemption in section 94(3) of the Securities Act.

The Commission applied the Royal Host factors and determined that it was in the public interest to allow the rights plan to continue for a brief period to allow the auction process to continue, given the competing bid from Inco.

The Commission also suspended Xstrata's ability to make market purchases under section 94(3), finding that such purchases, combined with Xstrata's ability to waive its minimum tender condition, could prematurely end the auction and deprive shareholders of the opportunity to tender to the bid of their choice.

Both the rights plan and the suspension of the 5% exemption were ordered to remain in place until July 28, 2006, or until Xstrata took up sufficient shares to meet its majority of the minority condition.

Staff of the Ontario Securities Commission alleged that the respondent, a lawyer and business consultant, engaged in unregistered trading and advising, illegal distributions, and made misleading representations regarding securities of Saxton Investments Ltd. and Sussex International Ltd. The respondent had attended meetings and provided updates on Cuban business operations to investors and salespeople.

The Commission found that the respondent's conduct was informational rather than promotional, and did not amount to acts in furtherance of a trade or advising.

The Commission also found insufficient evidence that the respondent knew the operations were running at a loss when he provided updates, or that he engaged in illegal distributions.

All allegations were dismissed.