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ARTICLE · 27 NOVEMBER 2007

Felderhof Insider Trading Decision

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Readers of this publication will undoubtedly be aware that the Ontario Court of Justice acquitted John Felderhof of Bre-X fame of four insider trading charges on July 31, 2007. The charges had been brought by the Ontario Securities Commission under Ontario’s Securities Act.

CanadaLitigation, Mediation & Arbitration
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By John Blair
Edited by David Di Paolo

Readers of this publication will undoubtedly be aware that the Ontario Court of Justice acquitted John Felderhof of Bre-X fame of four insider trading charges on July 31, 2007. The charges had been brought by the Ontario Securities Commission under Ontario’s Securities Act. Most of the post-trial publicity has lamented on Canada’s supposed inability to prosecute serious securities violations as opposed to addressing the actual rationale of the decision. In our view, that approach is unfair to each of Mr. Felderhof, the Commission and the legal system. For those interested in the basis of the decision, a brief analysis follows.

It was significant that the OSC decided to prosecute its case in the courts instead of before a commission panel. Panels are empowered to make findings of guilt merely if they conclude that the prosecution case has been proven on a "balance of probabilities". Courts, on the other hand, must be satisfied of guilt

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