Proceedings

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Citation: Vincent George Byrne (Re), 2018 ONSEC 44
Date: 2018-09-06
File No.: 2018-47



IN THE MATTER OF
VINCENT GEORGE BYRNE

REASONS AND DECISION
(Subsections 127(1) and (10) of the Securities Act, RSO 1990, c S.5)



Citation: Vincent George Byrne (Re), 2018 ONSEC 44

Date: 2018-09-06

File No.: 2018-47

Hearing:

In Writing

 

Decision:

September 6, 2018

 

Panel:

D. Grant Vingoe

Vice-Chair and Chair of the Panel

 

Appearances:

Christina Galbraith

For Staff of the Commission

 

 

Donald C. Murray, Q.C.

For Vincent George Byrne

TABLE OF CONTENTS

I.

INTRODUCTION

 

II.

NSSC SETTLEMENT AGREEMENT AND ORDE

 

III.

CONSENT ORDER

 

IV.

ORDER

REASONS AND DECISION

I. INTRODUCTION

[1] On February 8, 2018 Vincent George Byrne (Byrne or the Respondent) entered into a settlement agreement (the Settlement Agreement) with the Nova Scotia Securities Commission (the NSSC). Byrne admitted to breaching registration requirements under Nova Scotia securities legislation, and agreed to be made subject to sanctions, conditions, restrictions or requirements within the province of Nova Scotia. On February 28, 2018 Byrne became subject to an order of the NSSC (the NSSC Order).

[2] On August 13, 2018 Staff of the Ontario Securities Commission (Staff) elected to bring a proceeding under the expedited procedure as set out in Rule 11(3) of the Ontario Securities Commission Rules of Procedure and Forms{1} relying on the inter-jurisdictional enforcement provision found in subsection 127(10) of the Ontario Securities Act{2} (the Act) to request that a protective order be issued in the public interest under subsection 127(1) of the Act.

[3] On August 15, 2018 Byrne was served with a Notice of Hearing issued August 15, 2018, a Statement of Allegations dated August 13, 2018 and Staff's written submissions, hearing brief{3} and book of authorities.

[4] On August 27, 2018 counsel for Byrne filed a signed consent,{4} consenting to an order in this matter.

[5] The issues for me to consider are whether one of the circumstances under subsection 127(10) of the Act applies to Byrne, specifically, has he agreed to be subject to an order made by a securities regulatory authority imposing sanctions, conditions, restrictions or requirements, and if so, whether the Ontario Securities Commission should exercise its jurisdiction to make a protective order in the public interest pursuant to subsection 127(1) of the Act.

II. NSSC SETTLEMENT AGREEMENT AND ORDER

[6] In the Settlement Agreement dated February 8, 2018, Byrne acknowledged and admitted the following:

a. By having trading authority and by effecting trades in 16 client accounts, the Respondent acted as an adviser without being registered to do so, thereby violating section 31(1)(2)(a) of the Nova Scotia Securities Act{5} (the NS Act).

[7] The NSSC Order imposed the following terms on Byrne:

a. Pursuant to section 134(1)(a)(i) of the NS Act, the Respondent complies with and ceases contravening Nova Scotia securities laws;

b. Pursuant to section 134(1)(b) of the NS Act, the Respondent shall, for a period of three year from the date of this order, cease trading in securities beneficially owned by anyone other than himself, with the exception of those persons listed in Appendix A to this order, which shall not be made public;

c. Pursuant to section 134(1)(c) of the NS Act, all of the exemptions contained in Nova Scotia securities laws do not apply to the Respondent for a period of ten years from the date of this order;

d. Pursuant to section 134(1)(d)(ii) of the NS Act, the Respondent shall be prohibited from becoming or acting as a director or officer of any issuer, registrant or investment fund manager for a period of five years from the date of this order;

e. Pursuant to section 134(1)(f) of the NS Act, that terms and conditions of close supervision and monthly reporting be imposed upon any grant of registration to the Respondent for a period of five years from the date of granting the registration;

f. Pursuant to section 134(1)(h) of the NS Act, the Respondent shall be reprimanded; and

g. Pursuant to sections 135(a) and (b) of the NS Act, the Respondent shall pay an administrative penalty in the amount of seven thousand five hundred dollars ($7,500.00): five thousand dollars ($5,000.00) of which is payable within 60 days from the date of this order, and two thousand five hundred dollars ($2,500.00) of which is payable within six months of the date of this order.

III. CONSENT ORDER

[8] Staff requests, and the Respondent consents to, an order in the public interest in Ontario that imposes terms similar to the sanctions, conditions, restrictions or requirements imposed by the NSSC, to the extent possible under the Act.

[9] Additionally, to maintaxn the confidentiality of the personal information contained in Appendix "A" to the NSSC Order, and consistent with the terms set out in the NSSC Order, I have also ordered this information be kept confidential.

IV. ORDER

[10] Therefore, since both Staff and the Respondent consent to the granting of an order in the public interest, as described above, and the requirements of Section 127 (10) of the Act are satisfied, I will issue the following order against Byrne:

a. pursuant to paragraph 2 of subsection 127(1) of the Act, trading in any securities by Byrne shall cease until February 28, 2021, except that Byrne may continue to trade in securities which are beneficially owned by Byrne or by those persons listed in Appendix "A" to the NSSC Order;

b. pursuant to paragraph 3 of subsection 127(1) of the Act, any exemptions contained in Ontario securities law shall not apply to Byrne until February 28, 2028;

c. pursuant to paragraphs 7, 8.1 and 8.3 of subsection 127(1) of the Act, Byrne shall resign any positions that he holds as a director or officer of any issuer, registrant, or investment fund manager;

d. pursuant to paragraphs 8, 8.2 and 8.4 of subsection 127(1) of the Act, Byrne is prohibited from becoming or acting as a director or officer of any issuer, registrant, or investment fund manager, until February 28, 2023;

e. pursuant to paragraph 1 of subsection 127(1) of the Act, should Byrne seek registration in Ontario after February 28, 2023, terms and conditions of close supervision and monthly reporting shall be imposed upon any grant of registration to Byrne, for a period of five years from the date registration is granted; and

f. pursuant to subsection 9(1)(b) of the Statutory Powers Procedures Act,{6} Appendix "A" to the draft of the NSSC Order appended as Schedule A of the Settlement Agreement between the NSSC and Byrne, dated the 8th day of February, 2018 reproduced at Tab 1 and appended to the NSSC Order and the Settlement Agreement reproduced as Tab 2 of Staff's Hearing Brief, marked as Exhibit 1 in this written hearing, shall be kept confidential.

Dated at Toronto this 6th day of September, 2018.

"D. Grant Vingoe"

{1} (2017), 40 OSCB 8988.

{2} RSO 1990, c S.5.

{3} Hearing Brief marked as Exhibit 1.

{4} Consent marked as Exhibit 2.

{5} RSNS 1989, c 418.

{6} RSO 1990, c S.22.

 

Chris Triantos

IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, c. S.5, AS AMENDED AND IN THE MATTER OF AN OPPORTUNITY TO HEARD REQUESTED BY CHRIS TRIANTOS

DECISION OF THE DIRECTOR

Having reviewed and considered the agreed statement of facts, the admissions by Chris Triantos ("Triantos"), and the joint recommendation to the Director by Triantos and staff of the Ontario Securities Commission ("Staff") contained in the settlement agreement signed by Triantos on August 25, 2018, and by Staff on August 27, 2018 (the "Settlement Agreement"), a copy of which is attached as Schedule "A" to this Decision, and on the basis of those agreed facts and admissions, I, Marrianne Bridge, in my capacity as Director under the Securities Act, R.S.O. 1990, c. S.5 (the "Act"), accept the joint recommendation of the parties, and make the following decision:

(a) Triantos's registration shall be suspended pursuant to section 28 of the Act.

(b) Triantos may apply to reactivate his registration if he provides Staff with evidence of his successful completion of the CPH or the Ethics and Professional Conduct Course (the "EPC") offered by the IFSE Institute, and Staff will not recommend to the Director that his application be refused unless Staff becomes aware after the date of this Settlement Agreement of conduct impugning Triantos's suitability for registration or rendering his registration objectionable, and provided he meets all applicable criteria for registration at the time.

August 31, 2018

"Marrianne Bridge"

 

Schedule "A"

IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, c. S.5, AS AMENDED AND IN THE MATTER OF AN OPPORTUNITY TO HEARD REQUESTED BY CHRIS TRIANTOS

SETTLEMENT AGREEMENT

I. INTRODUCTION

1. This settlement agreement (the "Settlement Agreement") relates to the registration status of Chris Triantos ("Triantos") as a mutual fund dealing representative under the Securities Act, R.S.O. 1990, c. S.5 (the "Act").

2. As more particularly described in this Settlement Agreement, Triantos has failed to comply with Ontario securities law. Triantos and staff of the Ontario Securities Commission ("Staff") agree that it is appropriate that his registration be suspended, and the parties have agreed to make a joint recommendation to the Director regarding the suspension of Triantos's registration.

II. AGREED STATEMENT OF FACTS

3. The parties agree to the facts as stated below.

4. Triantos has been registered under the Act as a mutual fund dealing representative (a category of registration known as mutual fund salesperson prior to September 28, 2009) more or less continuously since February 1996. Since October 2017, Triantos has been registered with Shah Financial Planning Inc. ("Shah").

5. At the time Triantos became registered with Shah, the Director imposed terms and conditions on his registration that, among other things, required him to successfully complete the Conduct and Practices Handbook Course Exam (the "CPH") by no later than April 26, 2018. These terms and conditions had been imposed to address Triantos's lack of understanding of his self-reporting obligations under National Instrument 33-109 Registration Information and under his previous sponsoring firm's internal policies and procedures. In particular, Triantos did not understand his obligation to self-report a consumer proposal he made, or a garnishment by the Canada Revenue Agency that had been issued against him

6. The terms and conditions imposed on Triantos's registration constituted "Ontario securities law" as that term is defined in the Act.

7. Triantos wrote the CPH on April 26, 2018 and did not achieve a passing mark. Prior to informing Staff of his unsuccessful attempt to pass the CPH, Triantos registered to re-write the exam on May 25, 2018. At Staff's request, Shah prohibited Triantos from trading in securities pending the outcome of his May 25, 2018 CPH results.

8. Triantos wrote the CPH for a second time on May 25, 2018, and again he did not achieve a passing mark. Triantos informed Staff that his lack of success on the exam was due to personal health reasons.

9. Triantos wrote the CPH for a third time on July 28, 2018, and again he did not achieve a passing mark.

10. On August 10, 2018, Staff informed Triantos that it had recommended to the Director that his registration be suspended for his failure to comply with the terms and conditions of his registration.

11. On August 23, 2018, pursuant to section 31 of the Act Triantos requested an opportunity to be heard (and "OTBH") before the Director regarding Staff's recommendation that his registration be suspended.

III. ADMISSIONS AND REPRESENTATIONS BY TRIANTOS

12. Triantos admits that by not successfully completing the CPH by April 26, 2018, he failed to comply with the terms and conditions of his registration imposed by the Director, and therefore with Ontario securities law.

IV. JOINT RECOMMENDATION

13. The parties make the following joint recommendation to the Director regarding Triantos's registration status:

(a) Triantos's registration shall be suspended pursuant to section 28 of the Act.

(b) Triantos may apply to reactivate his registration if he provides Staff with evidence of his successful completion of the CPH or the Ethics and Professional Conduct Course (the "EPC") offered by the IFSE Institute, and Staff will not recommend to the Director that his application be refused unless Staff becomes aware after the date of this Settlement Agreement of conduct impugning Triantos's suitability for registration or rendering his registration objectionable, and provided he meets all applicable criteria for registration at the time.

14. The parties submit that their joint recommendation is appropriate for the following reasons:

(a) Triantos has admitted his non-compliance with Ontario securities law.

(b) Triantos did not wilfully disregard his obligations under the terms and conditions of his registration.

(c) Should Triantos elect to complete the EPC instead of the CPH, Staff is of the view that the EPC is an acceptable alternative to the CPH to remediate the specific proficiency concerns that led to Triantos being was required to take the CPH pursuant to the terms and conditions of his registration.

(d) By agreeing to this Settlement Agreement, Triantos has saved Staff and the Director the time and resources that would have been required for an OTBH.

15. The parties acknowledge that if the Director does not accept this joint recommendation:

(a) This settlement agreement and all related negotiations between the parties shall be without prejudice.

(b) Triantos will be entitled to an OTBH in accordance with section 31 of the Act in respect of Staff's recommendation that his registration be suspended by the Director.

"Chris Triantos"
"Elizabeth King"
____________________
____________________
Chris Triantos
Elizabeth King
____________________
Deputy Director
Compliance and Registrant Regulation
 
August 25, 2018
August 27, 2018