In addition, having the compelled evidence as part of the evidentiary record neither deprives a respondent of the right to decide whether to testify nor forces a respondent to testify. The Commission has the power under the Act to compel evidence. Section 11 allows the Commission by order to appoint one or more persons to investigate and, under s. 13, an investigator has the power to summon and enforce the attendance of any person and to compel him or her to testify under oath or otherwise and produce documents and other things. Compelled evidence may be produced at a proceeding under the Act (s. 17).
At the outset of the hearing we made an oral order excluding all witnesses, including Staff's witnesses, from attending the hearing. We also issued a caution to all witnesses that, after testifying, they were not to speak with any other witnesses about their testimony. Vannatta takes the position that Staff breached the witness exclusion order and this prejudiced him. We note that Fakhry did not request redactions related to his own personal information.
The Moving Respondents submit that Staff's proposal to refer to compelled evidence in the George Affidavit is contrary to previous decisions of the Commission and the Divisional Court,and contrary to common practice before the Commission. The Moving Respondents submit that the "Agueciprocedure" is the established practice for the Commission. InAgueci CTthe Commission decided that a respondent's compelled evidence could only be used to cross-examine that respondent and, where a respondent declines to testify, Staff could enter portions of that respondent's compelled evidence at the end of Staff's case. The Moving Respondents can wait to decide whether to give oral evidence until Staff's case against them is complete. We agree in these circumstances that including information from the compelled evidence in the George Affidavit may give rise to a situation where a Moving Respondent feels their own oral evidence is required to provide context or clarity, pre-empting their right to decide at the end of Staff's case whether to testify. Staff submits that allowing the compelled evidence to be included in the George Affidavit does not create any unfairness to the Moving Respondents; both a respondent's oral evidence and compelled evidence have been part of the evidentiary record in other Commission proceedings.
During the full MNPI Period, Goss was a net purchaser of only 30,000 shares. Goss was working as traders and advisors do, buying and selling shares -- trading in the market. I note the evidence that Goss and Kitmitto spoke over coffee on either May 9 or 13, 2014, and on May 13 Goss sold shares in Amaya. Goss also placed a call to Kitmitto on May 14, 2014 , and the only Amaya trade that Goss made on May 14, 2014 after that call was a sale.
Although they worked closely together and were friendly, Goss and Fakhry were not close friends and did not socialize outside of work. Both Goss and Fakhry testified that their working relationship included regular sharing of information about companies and stocks. Fakhry was a registered advisor who was employed as Goss's assistant at Mackie and then at Aston Securities. He assisted Goss, both before and after the move to Aston Securities, with transitioning Goss's clients to his new employer.
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In my view, trading volume is not a determinative factor, because there are too many variables, involving the entire market, in its daily and monthly calculation. The majority of the Panel considered the trading volume along with other circumstantial evidence, such as the interactions and communications of Kitmitto with Goss. However, I take a very different view of those interactions.
We conclude that on a balance of probabilities Fakhry told CB during their weekend discussion about the Amaya MNPI and that May 21 was when it would be announced. May 21 was the then expected date for the announcement of the Acquisition. Staff submits that CB's concern about being too late to buy more shares, his expectation of imminent news and of the possibility for a quick profit all demonstrate that it is more likely than not Fakhry's discussion of Amaya with CB on the May weekend included a tip about the Amaya MNPI and that the announcement was expected that day. It is undisputed that Fakhry traded Amaya shares during the Relevant Period; Fakhry admitted this. Fakhry purchased Amaya shares on May 2, 20, 21, 26 and 28, 2014 and sold all of his shares on June 13, 2014, the day after Amaya announced the Acquisition. Staff asks us to draw the inference that FH asking Goss to call him about these articles, which imply that the Acquisition was at risk of not proceeding, is evidence that Goss tipped FH about the Acquisition and FH was seeking reassurance from Goss, in the face of this potentially negative news, that the Acquisition was going forward.
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Goss followed Cryptologic, Amaya's predecessor, where his friend and client AE had been employed and in which Fielding had invested; as well as Las Vegas Sands and WYNN, which had well-established land-based operations, and of which WYNN was a potential competitor for the PokerStars purchase. In late 2013, Goss invested $100,000 in Intertain, a then-private online gaming company , on the basis that "the space was going to be quite exciting". In early 2014, Goss also invested more than $200,000 in World Gaming, another private online gaming company in which Fielding had invested. The fact that Christopher had not purchased stocks for three years prior to his purchase of Amaya can be equally explained by the fact that he had, on paper at least, lost a significant amount of money in previous investments; and Claudio's business was not doing as well financially and he was unable to pay dividends to Christopher. By the time he purchased Amaya shares on May 8, 2014, Christopher knew that Claudio's financial circumstances had improved and a dividend was imminent, although he did not know exactly when it would arrive.
Fielding was Goss's client, and he followed Goss's advice. The evidence showed that Fielding regularly relied on his broker, Goss. I accept Fielding's evidence that Fielding invested in Amaya before Kitmitto knew Amaya planned to acquire PokerStars.
There is also insufficient evidence to conclude that Christopher knew Kitmitto was an access person at Aston Asset Management who had access to MNPI as part of his job. Christopher had limited knowledge of Kitmitto's employment. Christopher testified that he knew Kitmitto was an analyst at Aston Asset Management, which he understood to mean that Kitmitto researched companies in the gaming and tech industry and provided recommendations to fund managers.
As no evidence was shared by Staff with Rnjak, we find no breach of the witness exclusion order in this instance. Vannatta submits that these breaches were serious, the information provided to Rnjak during the October 20, 2023 preparation meeting allowed Rnjak to tailor his evidence and therefore we should give no weight to Rnjak's evidence, draw an adverse inference against Staff regarding their case against Vannatta and dismiss the allegations against Vannatta. Vannatta raises the issue that Rnjak's anticipated evidence had changed to include this new fact only after George's testimony. Vannatta submits that the notes of the October 20 meeting should be disclosed to get to the bottom of the new information and to assess whether there had been a breach of the witness exclusion order.
Fielding submitted an alternate profit calculation which included all of Fielding's trades in shares of Amaya from April 11, 2014 to November 8, 2016, resulting in a 45.56% profit. This included buys of shares from July 23, 2014 to November 13, 2014 along with the sells of these additional shares. In our view buys of shares that happened after June 12, 2014 and their corresponding sells should not be included in the profit calculation. The evidence indicates that Fakhry gave different explanations for when he first became aware of Amaya, referring to different dates in response to Aston Securities's internal review of Amaya trading in July 2014, during each of his two compelled interviews by Staff and during his testimony.
I find that Goss is an experienced stock broker, business person, husband and father. As a former competitive swimmer, he won two silver medals in the Olympics, one in 1984 and one in 1988. Staff asked the Panel to infer guilt from the existence of a collegial workplace, collaboration in business dealings, trust among friends, thoughtful trading, and success. On May 9, 2014, Christopher saw a Stockhouse post that referred to commentary by an investment analyst who recommended Amaya and predicted that it was "looking at big, big profits later on". On December 16, 2013, Christopher saw a Cantech article which listed Amaya as a finalist for the TSX tech stock of the year and noted that Amaya was a key force in the legalization of online gambling in the United States.
InAzeff Merits, excerpts of compelled evidence were admitted for two of the respondents, and the compelled evidence for another respondent was read into evidence.The decision does not specify if, in the latter case, the entire compelled evidence was admitted in full or just excerpts were read in. As such this case was of limited assistance in our analysis. Just prior to Staff closing its case and upon reviewing the excerpts of the compelled evidence that Staff intended to tender as part of their case should the respondents not testify, the Candussos and Vannatta advised that they did not intend to testify and asked that their entire compelled evidence, rather than excerpts of them, be included as evidence. The Candussos and Vannatta submit that their entire compelled evidence is required to ensure that we are not missing any potentially probative evidence and context. We do not accept the Moving Respondents's position that the type of allegations in a proceeding should play a significant factor in our decision about when and how compelled evidence may be used in a hearing and admitted by a Panel.
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On the issue of whether Kitmitto had a fair opportunity to address Staff's theory of the case against him, subject to the exception we address in paragraph 142, we agree with Staff that Kitmitto had notice of the allegations against him and he denied those allegations. Staff submits that there is no issue of fairness as Kitmitto and Fielding were aware of the allegations against them and they denied those allegations. In addition, Staff submits there is no breach of the rule inBrowne v Dunnwhen Staff does not put every aspect of Staff's theory to a respondent.
I find that Goss gave credible and consistent testimony to the best of his ability during the hearing. I accept Goss's submission that a perfect memory cannot be the standard for any witness. Memories fade over time and a long time has elapsed since the events in this proceeding took place in 2014. Six years later it is normal that a witness may forgot something, provide inconsistent answers and may need to have their memory refreshed. Memory is also not retained as a "recording" or a "transcript" in the brain.
We find that three conversations Goss had with two of his clients during the Relevant Period support the conclusion that Goss had knowledge of specific details about the Acquisition. Goss also, on three occasions during the Relevant Period, sold shares of Amaya. One of these occasions appears to be in response to a margin call. We find that Goss's sale of Amaya on May 8 is more likely than not the result of Goss being advised by Kitmitto on May 8 that the announcement was being delayed to May 21, 2014. This documentary evidence is inconsistent with Goss's evidence and we find that it is more likely than not that there was no lock on the door in the wall separating the Aston Securities and Aston Asset Management offices until sometime after July 2014. Goss testified that the door in the glass wall separating the two offices was locked and that the Aston Securities's office manager had the key.
It is insufficient to rely on Goss's friendship with Kitmitto to establish the special relationship. I could not conclude that Goss was in a special relationship, because based on the evidence before me it is equally or more likely that Goss learned about Amaya from other sources and not Kitmitto as I set out above. There was also insufficient evidence to demonstrate that Goss knew or ought to have known of Kitmitto's special relationship with Amaya.
