Alistair Crawley

The applicant sought leave to appeal an arbitral award finding it breached contractual and fiduciary duties by failing to redeem the respondent's hedge fund investment.

The arbitrator awarded $1.3 million in damages, rejecting the applicant's argument that damages should be assessed based on an alternative, less onerous method of performance.

The Superior Court denied leave to appeal, finding that the arbitrator correctly interpreted the contract as mandating only one method of performance and that the applicant's challenges raised issues of mixed fact and law, not extricable questions of law.

RBC Dominion Securities Inc. and Royal Bank of Canada Europe Limited (collectively "RBC") sued Crew Gold Corporation ("Crew") for a success fee under a financial advisory agreement.

RBC argued that the fee was payable for third-party share purchases that resulted in a change of control of Crew, even without RBC's direct involvement.

Crew contended that the agreement required its involvement in any transaction triggering the fee and that the fee was contingent on RBC's provision of financial advisory services.

The court interpreted the contract as requiring a causal link between RBC's activities and the completed transaction.

Finding no ambiguity in the contract language, and considering the factual matrix, the court concluded that the third-party open market transactions were not within the contemplation of the parties when the agreement was executed.

RBC's action was dismissed.

The defendant brought an unsuccessful summary judgment motion and the plaintiffs sought costs of $37,610.84 on a partial indemnity basis.

The court declined to award costs to the plaintiffs, finding that the summary judgment motion was reasonably brought and the issues of damages and limitation periods would still need to be determined at trial.

The court ordered costs in the cause.

The defendant investment firm brought a motion for summary judgment to dismiss the plaintiffs' action as statute-barred.

The plaintiffs, who were victims of their former investment advisor's Ponzi scheme, argued they did not discover their claims against the firm until the advisor's fraud was exposed.

The court dismissed the motion, finding a genuine issue for trial regarding whether the plaintiffs, as allegedly unsophisticated investors, knew or ought to have known of their claims earlier through the exercise of reasonable diligence.

The respondent McKinnon brought a motion seeking a preliminary determination to dismiss allegations relating to Principal Protected Notes (PPNs) prior to the hearing on the merits, or alternatively, a declaration that it is not in the public interest to hear the PPN Allegations.

The Ontario Securities Commission dismissed the motion, finding that the issues raised were of mixed fact and law that could not be resolved without regard to contested facts and anticipated evidence at the hearing on the merits.

The Commission also held that there was no compelling public interest consideration to decline hearing the allegations.

Stuart McKinnon brought a motion seeking an order under section 147 of the Securities Act to exempt him from registration requirements and grant him registration as a mutual fund dealing representative pending the determination of enforcement allegations against him.

Staff opposed the motion, arguing the Commission lacked jurisdiction and that granting the exemption would be prejudicial to the public interest given past compliance issues.

The Commission dismissed the motion, finding that assessing suitability for registration requires a detailed evidentiary record and that it would not be in the public interest to bypass the statutory registration requirements.

Staff of the Ontario Securities Commission sought an inter-jurisdictional enforcement order under s. 127(1) and s. 127(10) of the Securities Act against the respondents, based on an order from the Connecticut Department of Banking (CDB).

The CDB had found that the respondents engaged in unregistered trading and fraud.

The respondents argued that the CDB order should not be reciprocated because they were denied natural justice in the Connecticut proceeding, citing lack of disclosure, refusal of an adjournment, and reliance on deemed admissions.

The Commission rejected these arguments, finding no denial of natural justice.

The Commission concluded it was in the public interest to impose sanctions, ordering trading bans and prohibiting the individual respondent from acting as a director or officer.

However, the Commission declined to impose the permanent bans sought by Staff, finding insufficient evidence that the individual respondent used investor funds for personal benefit.

The respondents brought a motion to stay the release of the Commission's decision on the merits of their case, pending the final determination of a civil action commenced by investors against the Commission.

The respondents argued that the civil action created a reasonable apprehension of bias, as the Commission might attempt to deflect blame onto the respondents to protect its own interests.

The Commission dismissed the motion, finding that the respondents failed to establish a reasonable apprehension of bias given the strong presumption of impartiality and the institutional safeguards in place.

The Commission further held that the interests of justice and the public interest in the timely and efficient enforcement of securities laws favoured the release of the merits decision.

The respondents brought a motion to revoke or vary an investigative order issued under section 11 of the Securities Act.

The respondents argued that the Commission lacked jurisdiction to issue the order because its purpose was to enforce a sanctions order, which they claimed was not part of the due administration of Ontario securities law.

The Commission dismissed the motion, finding that the enforcement of sanctions is an essential object of the Act and that Staff may use investigative orders to gather information about potential asset transfers intended to negate sanctions.

The appellants appealed a trial judgment dismissing their claims for oppression and civil conspiracy against the respondents.

The appellants alleged the respondents unlawfully provided their share ownership information to a third party, leading to an injunction that froze their shares.

The Court of Appeal upheld the trial judge's findings that the respondents' conduct was not oppressive, there was no intent to injure to support a conspiracy claim, and the appellants suffered no damages because they had consented to the injunction.

The appeal was dismissed with costs.

The plaintiff self-regulatory organization brought a motion for summary judgment to recover $80,000 in costs ordered by its disciplinary hearing panel against a former registrant.

The defendant had previously been found guilty of misconduct involving undisclosed financial interests in client accounts and was permanently banned and fined by the disciplinary panel.

Appeals to the securities regulator and the Divisional Court were dismissed, and the defendant failed to pay the ordered costs.

The court held that membership in the regulatory organization created a contractual obligation to comply with its by-laws, rules, and disciplinary orders, including costs awards.

The court concluded that the costs order was enforceable through a civil action for breach of contract.

Staff of the Ontario Securities Commission sought to extend a temporary cease trade order against the respondent.

The respondent opposed the extension, arguing that the allegations justifying the temporary order were not included in the recently filed Statement of Allegations.

The Commission found sufficient evidence of potentially harmful conduct to justify an extension, but declined to extend it indefinitely.

The temporary order was extended for a finite period to allow Staff an opportunity to amend the Statement of Allegations to include the conduct that gave rise to the temporary order.

The plaintiff sought an interim injunction restraining an anonymous online poster from publishing defamatory statements on an internet message board about the plaintiff, the CEO of a publicly traded company.

The impugned posts alleged fraud, stock manipulation, offshore accounts, and other misconduct.

The court found the statements were manifestly defamatory, unsupported by any justification, and likely to cause irreparable harm given the wide dissemination and permanence of internet publications.

The court held that Ontario had jurisdiction because the alleged defamation caused reputational harm in the province.

An interim injunction was granted restraining the defendant from publishing further defamatory statements.

Following the dismissal of the plaintiffs' oppression action after a hybrid trial, the successful defendants sought partial indemnity costs.

The plaintiffs argued that each party should bear its own costs because the defendants' unlawful conduct provoked the litigation.

The court rejected this argument, finding the defendants were entitled to costs.

The court also addressed the novel issue of whether costs for preparing affidavits and cross-examinations for pre-trial motions are recoverable when that evidence is subsequently used in a hybrid trial.

The court held that such costs are recoverable to the extent the work product was material to the trial issues, to encourage the use of hybrid trials.

The court fixed EnGlobe's costs at $200,232.47 and Busseri's costs at $116,321.99.

The plaintiffs, minority shareholders of EnGlobe Corp., brought an action alleging that EnGlobe and its CEO engaged in oppressive conduct and conspired with a third party to freeze their shares during a proxy fight.

The court dismissed the action, finding that the freezing of the shares resulted from a consent order in separate litigation, not from any oppressive conduct or conspiracy by EnGlobe.

The court also held that the claims were barred by cause of action estoppel due to a prior consent dismissal order, and that the oppression claim was statute-barred under the Limitations Act, 2002.

The appellants appealed two decisions of the Ontario Securities Commission regarding their involvement in a collapsed investment structure.

The first appeal argued that televised comments by the Commission's Chair created a reasonable apprehension of bias.

The Divisional Court dismissed this appeal, finding that the Chair was acting within his statutory authority and that the Commission's structure adequately separated investigative and adjudicative functions.

The second appeal challenged the Commission's findings on the merits, alleging breaches of procedural fairness, misapplication of rules, and errors in finding the appellants were the directing minds who misled staff.

The court dismissed the second appeal, finding the procedures fair and the factual conclusions reasonable.

Staff of the Ontario Securities Commission alleged that the respondents engaged in an illegal scheme to sell securities (Borealis Guaranteed Return Investment Certificates) without registration or a prospectus, and that the scheme was fraudulent.

The respondents raised over $16 million from investors by promising 18% annual returns and falsely representing that the funds would be deposited with a trust company to leverage loans for small businesses, and that the investments were fully insured by CDIC and reinsured by major international insurers.

The Commission found that the Borealis GRIC was an investment contract and therefore a security.

The Commission concluded that several corporate and individual respondents, including the key organizers, traded without registration, distributed securities without a prospectus, and perpetrated a fraud on investors by making material misrepresentations about the security and insurance of the investments.

Certain peripheral respondents were found to have traded illegally but were not found liable for fraud.

Staff of the Ontario Securities Commission brought allegations against Donald and Lisa Buchanan for their involvement in the sale of securities in Gold-Quest International and Harmoney Club Inc. Based on agreed statements of fact, the Commission found that Donald Buchanan engaged in unregistered trading, illegal distributions, and breached a temporary cease trade order, raising approximately US $4.3 million from Ontario investors in what was alleged to be a Ponzi scheme.

Lisa Buchanan admitted her conduct was contrary to the public interest.

The Commission held that Donald Buchanan's status as an undischarged bankrupt did not preclude it from ordering financial sanctions, as the Commission only becomes a creditor upon making the order.

The Commission imposed permanent market bans on both respondents, and ordered Donald Buchanan to disgorge $352,000 and pay an administrative penalty of $300,000, which was higher than the $150,000 requested by Staff, to ensure adequate deterrence.

The appellant, a fugitive from justice convicted of securities offences in absentia, appealed orders refusing to set aside a noting in default and granting default judgment against her for over $770,000.

The respondents had sued for breach of contract and fraud related to unfulfilled share agreements.

The Court of Appeal upheld the motions judge's refusal to set aside the noting in default, finding the appellant's delay was tactical and her explanation for failing to defend lacked credibility.

The court also upheld the default judgment, finding no material inconsistencies in the evidence, but reduced the prejudgment interest rate on concession.

The appellant, an investment advisor, appealed a decision of the Ontario Securities Commission that upheld a disciplinary ruling by the Investment Industry Regulatory Organization of Canada (IIROC).

IIROC had found the appellant engaged in conduct detrimental to the public interest by maintaining undisclosed financial interests in the accounts of two relatives, resulting in a permanent ban, a $350,000 fine, and $80,000 in costs.

The Divisional Court dismissed the appeal, finding the Commission's decision reasonable, the reasons provided by IIROC adequate, and that the Commission properly afforded deference to the self-regulatory organization.