Recently, the Supreme Court of Canada (“SCC”) denied leave to appeal in a trilogy of insider trading cases Candusso v. Ontario Securities Commission, 2024 ONCA (41551) , Goss v. Ontario Securities Commission, 2024 ONCA (41547), Kitmitto v. Ontario Securities Commission, 2024 ONCA (41550).
The cases involve allegations of insider trading and insider tipping under the Ontario Securities Act (“OSA”) by employees of the Ontario Securities Commission – Christopher Candusso, Majd Kitmitto and Donald Goss. The three were alleged to have shared and traded nonpublic information about Amaya Gaming Group Inc’s planned acquisition of PokerStars before a public announcement in 2014. Based on the tip, they purchased shares.
A majority of the Capital Markets Tribunal (the “Tribunal”) found that, on a balance of probabilities, the three had engaged in insider trading and tipping and breached s.76 of the OSA.
The tribunal imposed various sanctions including market participation bans, administrative monetary penalties, disgorgement of profits and costs.
The appellants challenged the Tribunal’s findings, arguing that the Tribunal misapplied legal principles, improperly relied on circumstantial evidence, and imposed sanctions that were punitive and disproportional, and failed to account for mitigating factors.
The Ontario Superior Court of Justice had previously found that the tribunal did not err in its findings of insider trading and tipping and dismissed the appeal.
On September 20, 2024, the Ontario Court of Appeal dismissed their motion for leave to appeal.
On May 15, 2025, the SCC dismissed the application for leave to appeal from the judgment of the Court of Appeal for Ontario.
This trilogy underscores the courts’ deference to securities regulators in complex evidentiary matters and reinforces the Tribunal’s broad discretion in assessing circumstantial evidence and imposing sanctions for insider misconduct