The Ontario Superior Court of Justice has released what appears to be the final chapter in the Ontario Securities Commission's (OSC) prosecution of Daniel Emerson Tiffin and Tiffin Financial Corporation.

Background

In July 2014, the Ontario Securities Commission's administrative proceedings against Rezwealth Financial Services Inc., Pamela Ramoutar, Justin Ramoutar, Tiffin Financial Corporation, Daniel Tiffin, 2150129 Ontario Inc., Sylvan Blackett, 1778445 Ontario Inc. and Willoughby Smith, resulted in an order under s. 127 of the Securities Act (the Act) prohibiting Daniel Emerson Tiffin (Mr. Tiffin) and TFC from trading in securities or relying upon any exemption in Ontario securities law for a period of five years. Despite this sanction, Mr. Tiffin subsequently issued fourteen promissory notes to a number of his investment clients for the purpose of raising money for his company, Tiffin Financial Corporation (TFC), and for his own personal use. The OSC then charged Mr. Tiffin and TFC with breaches of s. 122(1)(c) of the Act for issuing promissory notes while subject to a cease trade order.

As previously discussed in two prior posts, Mr. Tiffin and TFC were initially acquitted of all charges, with the Ontario Court of Justice finding that promissory notes could not be considered "securities" within the meaning of the Act. That decision was overturned on appeal. Justice Charney of the Ontario Superior Court of Justice rejected the "family resemblance" test applied by the lower court and held that a promissory note was a "note or other evidence of indebtedness" and therefore fell within the definition of a "security" under the Act. As a result, the appeal was allowed and the Court substituted a conviction under s. 121(b)(ii) of the Provincial Offences Act. A sentencing hearing was scheduled.

Sentencing

On September 26, 2018, the Ontario Superior Court of Justice released reasons for Mr. Tiffin's sentence. In imposing a six month custodial sentence and 24 months of probation, Charney J. took into account the following aggravating and mitigating factors:

  • Aggravating Factors:

    • Tiffin took advantage of his position of trust and his knowledge of his clients' financial circumstances to borrow money for his own personal gain;
    • Tiffin used a portion of the borrowed money to pay for personal loans on luxury items, suggesting that he was motivated by greed rather than need;
    • Tiffin was a repeat offender and under a temporary cease trade order when a number of the promissory loans were issued; and
    • Tiffin still owed substantial amounts in principle, interest, restitution, costs and administrative penalties.
  • Mitigating Factors:

    • Tiffin received letters of support from five of the six lenders from whom he borrowed;
    • Tiffin was transparent with his clients about his desperate financial situation, suggesting that he did not seek to deceive or defraud;
    • Tiffin showed remorse and demonstrated an intention to repay the money that he borrowed from his clients; and
    • Tiffin had made attempts at repayment.

Ultimately, Justice Charney concluded that while Mr. Tiffin's offences were of a regulatory rather than criminal nature, both general and specific deterrence require that serious penalties be imposed on individuals who abuse positions of trust and violate securities law. In Mr. Tiffin's case, His Honour found that restitution and financial penalties alone were not sufficient, as they would simply amount to a "license fee" for violating the law. Rather, analogous case law suggested that a custodial sentence of 6 months was appropriate in the circumstances. Mr. Tiffin was also sentenced to 24 months' probation, the conditions of which, among other typical probationary requirements, prohibit Mr. Tiffin from trading in securities.

The decision stands as a stark reminder that serious violations of Ontario securities law may result in significant penal consequences.

The author would like to thank Brandon Burke, articling student, for his contribution to this article.

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