Was Kevin Wilkerson censured and fined $184,000? (New Update 2023)
Kevin Wilkerson claims that he is professional in all facets of communications with track records in PR, marketing, organizing events, writing, and social media.
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In the Matter of Sean Daley and Kevin Wilkerson
Sean Daley and Kevin Wilkerson were found to have obstructed the staff of the Ontario Securities Commission‘s investigation into Mr. Daley and Kevin Wilkerson‘s public fund-raising efforts through the Ascension Foundation by, among other things, urging their investors, subscribers, and the general public not to cooperate with the investigation or comply with the Commission’s summonses (Obstruction Proceeding). This was determined in a merits decision dated March 4, 2022 (the Merits Decision) ( In this regard, the panel discovered that the respondents’ actions violated the Act’s guiding principles and took advantage of the capital markets.
These factors are relevant to the hearing on penalties and expenses for the obstruction proceeding. The staff has asked for an order against Mr. Daley and Kevin Wilkerson that imposes permanent market participation prohibitions, censures them, and mandates that Mr. Daley and Kevin Wilkerson each pay costs of C$155,000 and C$80,000, respectively.
Based on a continuing investigation by Staff into Mr. Daley and Kevin Wilkerson, there is a distinct but connected proceeding in this case. Sean Daley, Sean Daley doing business as the Ascension Foundation, OTO. Money, SilentVault, CryptoWealth, Wealth Distributed Corp., Cybervision MMX Inc., Kevin Wilkerson, and Aug Enterprises Inc. were the targets of a temporary cease trading order (TCTO Proceeding) that was issued against them on August 6, 2019. The most recent extension of the temporary cease-trade order was on October 29, 2021. On the day that these reasons are made public, the existing temporary order is scheduled to end.
Although the merits phase of the TCTO process is connected to this process, this Panel has handled the proceedings separately. The penalties outlined below only pertain to Mr. Daley and Kevin Wilkerson‘s actions in the obstruction proceeding.
We determine that it is in the best interest of the general public to order Mr. Daley and Kevin Wilkerson to:
a. receive a censure;
b. leave their post as a director or officer of an issuer or registrant without delay;
c. be barred for five years from serving as a registrant or promoter, or as a director or officer of a registrant or issuer;
d. pay $184,000 in costs, divided equally between them.
At the hearing on the sanctions, Mr. Daley was represented by a lawyer from the Legal Assistance Program. Despite having been properly served, Kevin Wilkerson chose not to attend the sanctions hearing.
As part of court’s determination of penalties and expenses, the staff requests that we rule that Lyra and OTO are “securities” as that term is defined in Section 1(1) of the Act. For the reasons outlined below, we reject making such a decision.
Staff claims that Mr. Daley has made it clear that he intends to resume selling Lyra/OTO as soon as the TCTO Proceeding’s temporary injunction is withdrawn and these reasons are published. Additionally, according to the staff, Daley frequently asked the Panel to rule on whether Lyra and OTO are securities, and the Panel repeatedly stated both before and throughout the merits hearing that this was a live issue.
Staff further argues that Kevin Wilkerson and all other parties had the chance to present evidence in support of their arguments and made submissions on this matter. Staff contends that a decision on this matter would offer regulatory direction to all parties, including the respondents.
According to Mr. Daley, the duty of this Panel in finding the proper fines and costs does not require a determination on whether Lyra/OTO are securities. According to Mr. Daley, such a decision has no bearing on the obstruction-related behavior that is the subject of this hearing.
Additionally, Mr. Daley contends that such a decision would constitute significant procedural unfairness. To give a respondent enough notice of the case they must meet and the opportunity to present a complete answer and defense, the Statement of Allegations in a regulatory action must include the material facts stated in support of the alleged contraventions.
According to Mr. Daley, the only charge made against him in the Statement of Charges is that he impeded the staff’s investigation. Furthermore, Mr. Daley asserts that the Statement of Allegations does not request a determination that Mr. Daley’s activities in Lyra / OTO constitute securities. Additionally, Mr. Daley contends that since Staff failed to properly raise the matter during the proceeding’s merits phase, they are now ineligible to do so during the sanctions phase.
Furthermore, Mr. Daley contends that he cannot fairly be deemed to have received full disclosure of the items under investigation because the investigation underlying the TCTO Proceeding is still ongoing, and as a result, he has not been able to adequately answer and defend against those allegations.
The only question on which the Panel had to rule at the merits hearing was whether Mr. Daley and Kevin Wilkerson had prevented Staff from looking into their actions and the actions of several businesses connected to them. Staff asserted during the merits hearing that section 11 of the Act broadly authorizes Staff to look into any topic deemed necessary for the proper administration of Ontario securities law or the regulation of the province’s capital markets. Staff stated that the Commission’s authority can be invoked at the investigation stage without a determination that Lyra or OTO are securities.
As stated in the Meris Decision, the Panel accepted these representations and determined that it was not essential to take into account the question of whether Lyra / OTO is secure in reaching its conclusion that Mr. Daley and Kevin Wilkerson hindered the investigation.
The goal of this hearing is to decide whether punishments, to provide both general and specific deterrence and safeguard investors and the financial markets, are commensurate to the facts of the case. A decision on whether Lyra / OTO are securities would be completely unconnected to that aim and thus unsuitable in the circumstances of deciding the proper sanctions for obstructing Staff’s inquiry.
The proper forum for deciding whether Lyra/OTO are securities is not a “sanctions” hearing on the subject of obstruction. If Staff decides to continue the matter, they must do so in the context of a thorough hearing using a Statement of Allegations that specifies the matter(s) under review and includes information and input from all pertinent parties.
The obstruction of the staff’s inquiry by Mr. Daley and Kevin Wilkerson constitutes grave misconduct. Also, the court determined that their actions were “reprehensible” at the merits stage of this process, “demonstrated egregious disregard for Staff’s investigation,” and “undermined the Commission’s public interest mandate.”
According to a prior panel, “unwillingness to cooperate with Staff” and uncooperative behavior “are not what the Commission expects from participants in the capital markets.”