Ontario Securities Commission
Commission des valeurs mobilières de l’Ontario
22nd Floor 20 Queen Street West Toronto ON M5H 3S8
22e étage 20, rue Queen Ouest Toronto ON M5H 3S8
IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, CHAPTER S.5, AS AMENDED
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IN THE MATTER OF ATI TECHNOLOGIES INC., KWOK YUEN HO, BETTY HO, JO-ANNE CHANG, DAVID STONE, MARY DE LA TORRE, ALAN RAE and SALLY DAUB MOTION FOR PRODUCTION BROUGHT BY KWOK YUEN HO
Motion: October 18, 2004
Panel: Susan Wolburgh Jenah
- Vice Chair of the Commission (Chair of Panel)
M. Theresa McLeod
- Commissioner
H. Lorne Morphy, Q.C.
- Commissioner
Counsel: J. L. McDougall, Randy Bennett
- For the Applicant, Kwok Yuen Ho
Matthew Britton
- For Staff of the Ontario Securities Commission
I. The Proceedings
1This was a motion brought by Kwok Yuen. Ho (K.Y. Ho or the Applicant) for an order requiring Staff to produce all written or otherwise recorded notes, reports and analyses of staff investigators, including, but not limited to, those prepared by Jody Sikora (Sikora) and Belinda Taneski, the investigators who participated in the investigation that led to the issuance of a Notice of Hearing and Statement of Allegations by Staff of the Ontario Securities Commission (Staff).
2On January 16, 2003, a Notice of Hearing and Statement of Allegations were issued against the Respondents including the Applicant K.Y. Ho.
3In paragraph 9 of the Statement of Allegations, the following allegations are set out against K. Y. Ho, his wife Betty Ho and ATI:
- The specific allegations advanced by Staff are:
(a) That ATI failed to disclose material information forthwith contrary to s.408 of the TSX Company Manual and thereby acted contrary to the public interest. The material information was that ATI would report lower than expected revenue and earnings for Q3-2000.
(b) That ATI made a statement to Staff of the Commission during the course of its investigation of ATI that, in a material respect and at the time and in light of the circumstances in which the statement was made, was misleading or untrue or did not state a fact that was required to be stated or that was necessary to make the statement not misleading. In particular, ATI made the statement that the earliest material meetings, communications, events and developments leading up to the disclosure on May 24, 2000 occurred on May 16, 2000.
(c) That between April 24, 2000 and May 2, 2000, K.Y. Ho and Betty Ho traded 494,900 ATI shares. At the time these shares were traded, they were in a special relationship with ATI and had knowledge of a material fact with respect to ATI that had not been generally disclosed. The material fact was that ATI would fall short of its forecasted revenue and earnings for Q3-2000. Of these shares, 240,900 ATI shares were sold from an account in the name of Betty Ho for total proceeds of approximately $6,954,279. By selling the