OSC dismisses insider trading case against broker

On November 9, 2018 The proceeding was dismissed in the matter of Benedict Cheng, Frank Soave, John David Rothstein and Eric Tremblay. Fasken represented Frank Soave in response to allegations of insider trading contrary to section 76 of the Securities Act. Mr. Soave was alleged to have traded in shares of Amaya Gaming Group while in possession of material non-public information (MNPI) received from an insider of Amaya regarding a transaction between Amaya and the parent company of PokerStars. The proceeding against Mr. Soave was dismissed in its entirety, on the basis that although Mr. Soave received MNPI from an insider, he did not know the source of the information was an insider nor ought he to have known. This is a rare and exceptional result in insider trading cases brought before the OSC. The result is highly significant for Mr. Soave, who would have faced a significant fine and a lengthy suspension of his registration as an investment advisor (effectively ending his career) if he had been found to have contravened section 76 of the Securities Act. Quite apart from the rarity of the result in favour of the respondent, the case is significant because it is the first to apply criteria set out by Commissioner Lenczner and approved by the Court of Appeal in Finkelstein v. Ontario Securities Commission, 2018 ONCA 61, on the application of the “ought reasonably to have known” test in tipping proceedings. It is also the first case in which a respondent has been successful despite having been found on the evidence to have received MNPI from a tipper. Mr. Soave was represented by David Hausman, Brad Moore and Jonathan Wansbrough.