Alexandra Grishanova

The appellants sought to overturn Tribunal decisions refusing production of documents for abuse of process stay motions and denying a stay of securities enforcement proceedings arising from unlawful disclosure of compelled examination evidence in related receivership proceedings.

Applying appellate standards of review and the abuse of process framework, the court held that the Tribunal did not err in requiring a threshold showing for disclosure, in refusing to adopt the criminal-law summary dismissal threshold from Haevischer, or in concluding there was no tenable abuse of process case warranting disclosure.

The court further held that the unlawful disclosure, while serious, did not establish prejudice to trial fairness or to the integrity of the justice system that would be manifested, perpetuated, or aggravated by continuing the enforcement hearing, and that the grave public interest in adjudicating the securities fraud allegations strongly weighed against a stay.

One sanction issue succeeded only to correct the joint and several disgorgement amount from $2 million to $1.965 million.

The moving parties (appellants) sought a stay of several endorsements pending their appeal of an order directing a buyout of their shares in a condominium development project.

The underlying dispute involved mutual allegations of oppression between two 50% shareholders.

The court applied the RJR-MacDonald test for a stay pending appeal.

It found no serious issue to be tried, noting the broad discretion of the motion judge under the OBCA.

While acknowledging that loss of mortgage security could constitute irreparable harm, the court concluded that the balance of convenience strongly favoured the respondents, who risked losing $25 million in financing and the entire buyout transaction if the stay were granted.

The motion for a stay was dismissed.

Two equal 50% shareholders in a lakeside condominium development project in Burlington, Ontario (Nautique Lakefront Residences) sought court guidance on separating their partnership following an acrimonious impasse.

The applicant, an investor providing approximately 90% of equity funding, proposed a court-imposed shotgun buy-sell mechanism.

The respondent proposed a buyout under section 207 of the Business Corporations Act using a valuation report prepared by KSV Soriano Inc. The court found that both parties had engaged in oppressive conduct but determined that separation was necessary to preserve the project.

The court ordered a section 207 buyout by the respondent at a price representing the midpoint between two valuation scenarios, rejecting the shotgun mechanism due to procedural fairness concerns arising from late notice and the respondent's good faith participation in case management conferences.

The Ontario Securities Commission alleged that Oscar Furtado and his corporate entities defrauded investors in several real estate limited partnerships, traded securities without registration, and made misleading statements to the Commission.

The Capital Markets Tribunal found that Furtado perpetrated a securities fraud in five ways, including failing to disclose his intent to profit from a property acquisition, redeeming units contrary to representations, and misusing assets of other partnerships.

The Tribunal also found that Furtado made misleading statements to the Commission during its investigation.

However, the Tribunal dismissed the allegations that the respondents engaged in the business of trading securities without registration, finding they were raising capital for an underlying real estate business.

The Ontario Court of Appeal dismissed David Jarvis’s appeal regarding his entitlement to exercise stock options after resigning as a director of 1CM Inc. The court found that the corporate documents clearly required Jarvis to be a director at the time of exercising the options.

Jarvis failed to demonstrate any error in the application judge’s interpretation of the plan.

The respondent was awarded costs of $15,000.

The Trustee of the Alexander Morris Sharpe Trust sought the court's advice and directions on whether legal fees for David and Natasha Sharpe could be paid from the trust, which was established for the "sole and exclusive" benefit of their minor son, Alexander Morris Sharpe.

The Office of the Children's Lawyer opposed, arguing the trust language was clear and restrictive.

The court ruled that the trust funds could not be used to pay the legal fees, as such payments would not be for the "sole and exclusive" benefit of the minor beneficiary, even if there was a collateral benefit.

The appellants appealed decisions of the Capital Markets Tribunal finding they engaged in illegal insider trading and tipping regarding Amaya Gaming Group Inc.'s acquisition of PokerStars, and imposing sanctions including market bans and administrative penalties.

The appellants argued the Tribunal erred in relying on circumstantial evidence, misapplying the law on similar fact evidence, and imposing punitive sanctions.

The Divisional Court dismissed the appeals, finding no palpable and overriding errors in the Tribunal's factual findings or inferences, and holding that the sanctions were protective and within the Tribunal's wide discretion.

The Ontario Securities Commission (OSC) brought a motion seeking an order for the issuance of Letters of Request in Commissions under section 152 of the Securities Act.

The OSC required evidence from two individuals, one residing in British Columbia and one in Massachusetts, USA, for a proceeding before the Capital Markets Tribunal concerning Bridging Finance Inc. and its respondents.

The respondents did not oppose the motion.

The court granted the order, finding that the proposed witnesses had relevant evidence and that the Letters of Request and Commissions accorded with Rule 34.07(2) of the Rules of Civil Procedure.

The respondents, David and Natasha Sharpe, brought motions to stay the enforcement proceeding against them, alleging abuse of process.

They argued that the Ontario Securities Commission improperly filed their compelled testimony in a court application for a receiver without obtaining a section 17 order under the Securities Act, thereby prejudicing their right to a fair hearing and bringing the administration of justice into disrepute.

The Capital Markets Tribunal dismissed the motions, finding that the public availability of the compelled evidence did not prejudice their right to a fair hearing, as any potential witness tainting could be addressed through cross-examination.

Furthermore, the Tribunal concluded that the Commission's conduct, while based on a mistaken interpretation of the law, was not in bad faith and did not constitute the rare and exceptional circumstances required to justify a stay of proceedings.

The applicants, David and Natasha Sharpe, sought to vary an earlier Tribunal decision that denied their request for disclosure in support of their pending motions to stay the proceeding for abuse of process.

They argued that the Supreme Court of Canada's recent decision in R v Haevischer, which established a 'manifestly frivolous' standard for summary dismissal of stay applications in criminal cases, changed the applicable law.

The Tribunal dismissed the application, finding that Haevischer applies specifically to criminal cases and summary dismissals of stay applications, not to disclosure requests in administrative proceedings where the onus lies on the party seeking disclosure.

The respondents moved to stay an enforcement proceeding and requested the Tribunal issue summonses to five members of OSC Staff to testify at the stay motion hearing.

The respondents sought evidence regarding the OSC's decision to include compelled evidence in a receivership application without a section 17 order.

The Tribunal dismissed the request, finding it was an impermissible attempt to re-litigate issues already decided in a previous motion for documentary disclosure, and that the respondents failed to establish a reasonable basis that the summonses would lead to relevant evidence of abusive conduct.

Staff of the Ontario Securities Commission brought motions seeking further witness summaries from the respondents and the dismissal of the respondents' stay motions.

The respondents argued that the scheduling of these motions should be delayed pending their application for judicial review of a previous Tribunal decision.

The Tribunal held that the judicial review application should not delay the proceeding.

The Tribunal scheduled the motion for further witness summaries to be heard orally, treated Staff's motion to dismiss the stay motions as withdrawn, and set a schedule for the exchange of materials for the stay motions.

David and Natasha Sharpe brought motions for disclosure of various documents to support their motions for a stay of proceedings based on an alleged abuse of process.

The alleged abuse was the Ontario Securities Commission's filing of their compelled testimony in a public court record for a receivership application without first obtaining a section 17 order.

The Capital Markets Tribunal dismissed the disclosure motions, finding that the Sharpes failed to establish a tenable case of abuse of process, as the disclosure occurred in a separate proceeding, did not affect the adjudicative fairness of the current proceeding, and there was no evidence of bad faith by OSC Staff.

The Capital Markets Tribunal issued its reasons and decision on sanctions and costs following a merits decision that found the respondents engaged in insider trading, tipping, and misleading Staff of the Ontario Securities Commission.

The Tribunal imposed significant market participation bans ranging from 3 to 15 years, administrative penalties totaling $2.95 million, disgorgement of ill-gotten gains totaling over $1.4 million, and costs of approximately $735,000.

The Tribunal emphasized the seriousness of insider trading and tipping, noting that such conduct undermines investor confidence and the integrity of the capital markets.

The appellant, Capital Sports Management Inc., appealed a motion judge's order requiring the production of certain solicitor-client documents to the respondent, Trinity Development Group Inc. The motion judge had found an implied joint retainer of the law firm Gowlings by both parties in relation to a joint venture, and ordered production of documents up to the commencement of the litigation.

On appeal, the Divisional Court held that the implied joint retainer terminated in May 2016 when the parties became materially adverse and threatened litigation against each other.

Furthermore, the respondent had acquiesced to Gowlings continuing to act solely for the appellant after that date.

The appeal was allowed, and the production order was narrowed to exclude documents created after May 2016.

The respondents David and Natasha Sharpe brought motions to stay the enforcement proceeding, alleging abuse of process related to the Commission's use of compelled evidence without a section 17 order.

The Tribunal held a scheduling hearing and determined that the stay motions should be heard before the merits hearing, as the potential efficiencies outweighed the risk of duplicated effort.

The Tribunal also declined to delay the stay motions pending the outcome of a related judicial review application, citing the public interest in proceeding expeditiously.

A schedule was set for the disclosure motions, stay motions, and the merits hearing.

The moving party, David Sharpe, sought a stay of an earlier Tribunal decision that dismissed his request to keep certain portions of the adjudicative record confidential.

He sought the stay pending his application for judicial review of that decision.

The Tribunal dismissed the motion, finding it lacked jurisdiction under the Statutory Powers Procedure Act to stay a final decision on confidentiality.

The Tribunal further held that even if it had jurisdiction, it would not grant the stay because Sharpe failed to demonstrate irreparable harm and the balance of convenience favoured the public interest in the transparency of Tribunal proceedings.

The moving party sought leave to appeal an order regarding the production of documents.

The Divisional Court granted leave to appeal on a single issue: whether the motion judge erred in ordering the production of documents after May 2016, having found an implied joint retainer among the parties and their counsel.

Costs of the motion were reserved to the panel hearing the appeal.

The applicant sought an order to keep portions of the adjudicative records and written submissions confidential in a proceeding before the Capital Markets Tribunal.

The records contained compelled evidence from an investigation that had already been made public in a related receivership application.

The Tribunal dismissed the request, finding that the applicant failed to meet the high bar required to depart from the open court principle, especially given that the material had been publicly available for over a year.

The plaintiff requested clarification regarding the scope of an order compelling production of documents.

The court had previously found a joint retainer existed between the plaintiff and the defendant.

The court clarified that as between joint venture parties, communications with the jointly retained lawyer relating to the subject matter of the joint venture are not privileged, even if the communications involved matters where the parties' interests were adverse or concerned withdrawing from the joint venture.