Proceedings

 

IN THE MATTER OF

THE SECURITIES ACT

R.S.O. 1990, c. S. 5, AS AMENDED

AND

IN THE MATTER OF

RICHARD THEBERGE

Hearing: June 22, 2001

Panel: Paul M. Moore, Q.C - Vice-Chair (Chair of the Panel)
John A. Geller, Q.C - Commissioner
R. Stephen Paddon, Q.C. - Commissioner

Counsel: Sarah Oseni
Larry Masci
- For the Staff of the Ontario
Securities Commission

 

 

Linda Feurst

- For Richard Theberge


NOTICE OF THE ORAL DECISION OF
THE ONTARIO SECURITIES COMMISSION
IN THE MATTER OF RICHARD THEBERGE

 

EXCERPT FROM THE SETTLEMENT HEARING
CONTAINING THE ORAL REASONS FOR DECISION


The following statement has been prepared for purposes of publication in the Ontario Securities Commission Bulletin and is based on the transcript of the oral hearing, including oral reasons delivered at the hearing, in the matter of Richard Theberge.

While this statement has been approved by the members of the panel for the purpose of providing notice of the panel's decision in the matter, only the certified transcript should be relied on as a true record of the proceedings.

---

This is a hearing of the Ontario Securities Commission, pursuant to a Notice of Hearing under section 127 of the Act with respect to a statement of allegations by the Staff of the Ontario Securities Commission against Richard Theberge.


CHAIR: We've come to a decision and we'd like to explain it to you with oral reasons.

We have determined to approve the settlement as amended with the term being extended from 90 days to 120 days, with no carve out for trading on his own account or in his RRSP. The three of us will each give brief comments.


First of all, we were persuaded by counsel for the respondent that in the particular circumstances of this case, the cash contribution of $25,000 is a significant factor and it will have a significant impact on the respondent, although in other circumstances that amount might be insufficient to cause a person to pause. He has been unemployed since January, and last year made only $42,000. We note also counsel's statement that it is the respondent's own money that will be paid. It is not money from others, and it is not from his father.


Secondly, we are not comfortable with the 120 days. If this matter were a contested hearing and not a settlement hearing we would have imposed a significantly longer period for a cease trade.


However, we believe that settlements should be encouraged. We note that the respondent was cooperative, and although we do not put great stock in the voluntary aspect of going to the Commission after the respondent found out there was an investigation going on, we do not dismiss it; and the fact that a settlement was negotiated and arrived at with cooperation, we do give weight to. That is beneficial to our securities regulatory system.


So when we looked at the 120 days, we wanted to be satisfied that in the circumstances of a settlement, this would be in the public interest; and we were satisfied that this will not be taken as a benchmark in other cases and that the particular facts of this case will make that clear.


We also note that although there was no hard evidence here, we were told that he does have a small portfolio. So this will make some difference and will prevent him from trading for a short period of time.


So although we are uncomfortable with the short length of the cease trade, in all the circumstances of this particular case we have concluded that it would be in the public interest to approve this settlement.


We also want to thank both counsel and particularly counsel for Staff, because although I questioned her quite hard and may have given the wrong impression about her written submission, the submission was quite helpful because it did lay out all of the relevant factors. If it appeared that I did not think her mitigating factors were mitigating factors, it is because I viewed this case very strongly. It really is a serious thing for people to deliberately take advantage of inside information in order to trade against the public. But her submission was quite helpful, and my questioning was not meant as any criticism at all of Staff. Also, we are mindful that we don't have insight into what goes on in settlement negotiations. This comes out through a hearing.


So having said all that, we are satisfied that this settlement agreement is in the public interest.


Commissioner Geller?

Commissioner Geller: I agree.

CHAIR Commissioner Paddon?

Commissioner Paddon: I agree.

CHAIR: Thank you very much. If there's nothing further, this hearing is adjourned.

June 29, 2001.

"Paul M. Moore"