Proceedings

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IN THE MATTER OF THE SECURITIES ACT,
R.S.O. 1990, c. S.5 AS AMENDED

- AND -

GLOBAL ENERGY GROUP, LTD., NEW GOLD LIMITED PARTNERSHIPS,
CHRISTINA HARPER, VADIM TSATSKIN, MICHAEL SCHAUMER, ELLIOT
FEDER, ODED PASTERNAK, ALAN SILVERSTEIN, HERBERT GROBERMAN,
ALLAN WALKER, PETER ROBINSON, VYACHESLAV BRIKMAN,
NIKOLA BAJOVSKI, BRUCE COHEN and ANDREW SHIFF

MOTION ORDER
(Rules of Procedure (2009), 32 O.S.C.B. 1991)



WHEREAS on July 10, 2008, the Ontario Securities Commission (the "Commission") issued a Temporary Order, pursuant to subsections 127(1) and (5) of the Securities Act R.S.O. 1990, c. S.5, as amended (the “Act”), that all trading by Global Energy Group, Ltd. (“Global Energy”) and the New Gold Limited Partnerships (the “New Gold Partnerships”) and their officers, directors, employees and/or agents in securities of the New Gold Partnerships shall cease (the "Global Energy Temporary Order");

AND WHEREAS on July 15, 2008, the Commission issued a Notice of Hearing to consider, among other things, the extension of the Global Energy Temporary Order;

AND WHEREAS on July 23, 2008, August 5, 2008, December 3, 2008, June 10, 2009, October 8, 2009 and March 10, 2010, the Commission issued orders to extend the Global Energy Temporary Order;

AND WHEREAS on July 9, 2010, the Commission ordered that the Global Energy Temporary Order was extended to September 1, 2010 and the hearing adjourned to September 1, 2010;

AND WHEREAS on April 7, 2010, the Commission issued a Temporary Order, pursuant to subsections 127(1) and 127(5) of the Act, ordering the following (the “Individual Respondents Temporary Order”):

  1. Christina Harper (“Harper”), Howard Rash (“Rash”), Michael Schaumer (“Schaumer”), Elliot Feder (“Feder”), Vadim Tsatskin (“Tsatskin”), Oded Pasternak (“Pasternak”), Alan Silverstein (“Silverstein”), Herbert Groberman (“Groberman”), Allan Walker (“Walker”), Peter Robinson (“Robinson”), Vyacheslav Brikman (“Brikman”), Nikola Bajovski (“Bajovski”), Bruce Cohen (“Cohen”) and Andrew Shiff (“Shiff”), collectively, the “Individual Respondents”, shall cease trading in all securities;
  2. that any exemptions contained in Ontario securities law do not apply to the Individual Respondents.

AND WHEREAS on April 14, 2010, the Commission issued a Notice of Hearing to consider, among other things, the extension of the Individual Respondents Temporary Order;

AND WHEREAS on April 20, 2010, the Commission issued an order to extend the Individual Respondents Temporary Order;

AND WHEREAS on June 8, 2010, Staff issued a Statement of Allegations and the Commission issued a Notice of Hearing, returnable on June 14, 2010, with respect to Global Energy, New Gold Partnerships, Harper, Tsatskin, Schaumer, Feder, Pasternak, Silverstein, Groberman, Walker, Robinson, Brikman, Bajovski, Cohen and Shiff;

AND WHEREAS on June 14, 2010, a first appearance was held before the Commission, with respect to the Statement of Allegations and the Commission ordered that the Individual Respondents Temporary Order was extended to September 1, 2010 and the hearing adjourned to September 1, 2010;

AND WHEREAS on August 18, 2010, Harper brought a motion pursuant to Rule 3 of the Commission’s Rules of Procedure (2009), 32 O.S.C.B. 1991 (“Rules”), supported by an Affidavit, sworn on August 18, 2010, and other documents (“Motion”), and on August 26, 2010, Harper filed and served additional documents dated August 26, 2010 (collectively, “Harper’s Motion Record”);

AND WHEREAS on August 24, 2010, Staff filed and served the Affidavit of Tom Anderson, Senior Investigator, sworn on August 24, 2010, in response to the Motion, and Staff advised that they would also rely on Anderson’s Affidavit, sworn on April 16, 2010, which contained in the Evidence Brief of Staff filed on April 16, 2010 and marked as Exhibit 1 at the April 20, 2010 appearance (collectively, “Staff’s Motion Record”);

AND WHEREAS on August 27, 2010, a hearing was held before the Commission to consider the Motion (“Motion Hearing”);

AND WHEREAS on August 27, 2010, Harper and counsel for Staff gave oral submissions at the Motion Hearing;

AND WHEREAS Harper seeks the following relief in the Motion: (i) that her name be struck from the style of cause in the proceeding; (ii) that she be given immunity as a victim in this matter; and (iii) that the Commission “close the book on any potential form of future prosecution” against her in relation to this matter;

AND WHEREAS Staff submits that Harper’s Motion Record and Staff’s Motion Record provide no grounds for granting the relief sought, and that the Rules provide no legal basis for the relief sought, which is similar to a directed verdict or summary judgement;

AND WHEREAS, on considering Harper’s Motion Record and Staff’s Motion Record and the oral submissions of Harper and counsel for Staff, it is the Commission’s opinion that it would not be in the public interest to grant the Motion, considering that:

  1. Harper’s submissions can best be considered by the Panel dealing with the hearing on the merits in this matter, at which time Harper will have an opportunity to challenge all of Staff’s allegations, to cross-examine Staff’s witnesses, and to bring evidence forward about how she viewed her role in the events at issue in this matter;
  2. should the Panel dealing with the hearing on the merits find that Staff’s allegations against Harper have been sustained, Harper will have an opportunity, at a sanctions and costs hearing, to bring evidence forward about the effect of the events at issue on her subsequent health;
  3. the Statement of Allegations and Notice of Hearing, dated June 8, 2010, do not list Harper’s name first on the style of cause; and
  4. it is not legally possible for a Panel of the Commission to grant the forward-looking immunity sought by Harper;

IT IS THEREFORE ORDERED that the Motion is dismissed.

 

DATED at Toronto this 27th day of August, 2010.

 

" Mary G. Condon "
Mary G. Condon