Alistair Crawley

The appellants appealed a trial judgment finding them liable for negligent misrepresentation.

The trial judge found that the respondent, a potential investor, reasonably relied on assertions from the CEO of the appellant private company regarding its present value.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings on misrepresentation and reliance, and upholding the damages calculation as reasonable.

The appellants appealed a decision of the Ontario Securities Commission finding they breached the Securities Act by failing to disclose material changes regarding their mining leases in Sierra Leone.

The appellants argued the leases were not material and the Commission improperly relied on hearsay evidence.

The Divisional Court dismissed the appeal, finding the Commission's decision reasonable, as the company had invested heavily in the leases and actively tried to retain them, making the risk of their loss a material change requiring public disclosure.

The applicant, an investment advisor, sought a stay of an Ontario Securities Commission decision dismissing his application for a hearing and review of an IIROC disciplinary decision.

The IIROC hearing panel had permanently banned the applicant and imposed a fine and costs for having undisclosed financial interests in client accounts.

The Commission considered the RJR MacDonald test for granting a stay pending appeal.

Finding that the Divisional Court was in a better position to determine the merits of the appeal and whether a stay should be granted, the Commission granted a short 60-day extension of the interim stay to allow the applicant to commence an appeal and bring a stay motion before the Divisional Court.

The applicant sought a hearing and review of a decision by the Ontario District Council of the Investment Industry Regulatory Organization of Canada (IIROC), which found he engaged in conduct unbecoming by having an undisclosed financial interest in client accounts.

The Ontario Securities Commission applied a restrained approach to reviewing the self-regulatory organization's decision, finding that the applicant failed to demonstrate that the District Council proceeded on an incorrect principle, erred in law, or overlooked material evidence.

The application was dismissed.

Staff of the Ontario Securities Commission brought allegations against Norshield Asset Management (Canada) Ltd., Olympus United Group Inc., John Xanthoudakis, Dale Smith, and Peter Kefalas regarding the collapse of the Norshield Investment Structure, which resulted in significant losses for retail investors.

The Commission found that Xanthoudakis and Smith were the directing minds of the complex investment structure.

The respondents breached Ontario securities laws by failing to deal fairly, honestly, and in good faith with clients, specifically by communicating artificially inflated net asset values and engaging in preferential redemptions.

They also failed to maintain proper books and records and provided materially misleading information to Commission Staff during an investigation.

The Commission concluded that the respondents' conduct was abusive to the integrity of Ontario's capital markets and contrary to the public interest.

The Independent Financial Brokers of Canada (IFBC) applied for a review of the Ontario Securities Commission's decision to approve an amendment to a Mutual Fund Dealers Association (MFDA) by-law.

The MFDA and Commission Staff challenged the panel's jurisdiction and the IFBC's standing.

The hearing panel dismissed the application, finding it lacked jurisdiction under sections 21.7, 21.1(4), and 144 of the Securities Act to review a policy decision made by the Commission as a whole.

Furthermore, the panel held that the IFBC, as an industry lobby group, was not 'directly affected' or 'affected' by the by-law approval, and therefore lacked standing to bring the application.

Staff of the Investment Dealers Association of Canada (IDA) applied for a hearing and review of an IDA Hearing Panel's penalty decision regarding two registered representatives who facilitated manipulative trading.

IDA Staff argued the Hearing Panel erred in principle by imposing a two-month suspension, $25,000 fines, and $40,000 in costs, which was less than the requested sanctions.

The Ontario Securities Commission dismissed the application, finding that the Hearing Panel considered the appropriate factors, including the respondents' ability to pay, their legal costs, and their subsequent compliance, and did not proceed on any incorrect principle.

The appellants brought a motion to stay Ontario Securities Commission (OSC) proceedings pending the appeal of an OSC decision refusing to stay the proceedings for reasonable apprehension of bias.

The court found that while issue estoppel did not entirely preclude the motion due to changed circumstances, the appellants failed to establish irreparable harm.

The court also found that the balance of convenience favoured allowing the OSC proceedings to conclude before addressing the bias issue on appeal.

The motion for a stay was dismissed.

The moving parties, respondents in an ongoing enforcement proceeding, brought a motion to stay the proceeding on the grounds of a reasonable apprehension of bias.

The motion was based on public comments made by the Chair of the Ontario Securities Commission during a television interview regarding the honesty of the individuals who ran Norshield.

The moving parties argued that these comments created a reasonable apprehension of bias on the part of the hearing panel under the doctrines of systemic bias, institutional impartiality, and corporate taint.

The Commission dismissed the motion, finding that the integrated agency model is statutorily authorized and that safeguards exist to separate the adjudicative function from the Chair and enforcement staff.

The panel concluded that a fully informed reasonable person would not apprehend bias on the part of the independent hearing panel based on the Chair's comments.

The respondents brought a motion challenging the standing of the Investment Dealers Association (IDA) or its staff to apply for a hearing and review of an IDA disciplinary hearing panel decision under section 21.7 of the Securities Act.

The Commission dismissed the motion, finding that the IDA is a 'person directly affected' by the decision of its independent hearing panel and therefore has standing to seek a review.

The Commission held that this interpretation is consistent with the IDA's regulatory mandate and the purposive interpretation of the Act.

The Ontario Securities Commission held a hearing to determine whether Rex Diamond Mining Corporation and its officers breached the Securities Act by failing to disclose material changes regarding the cancellation of its mining leases in Sierra Leone.

The Commission found that Rex failed to issue news releases and file material change reports when it received warning letters and notices that its leases were cancelled.

The Commission also found that Rex provided misleading disclosure in its public filings and provided an incomplete chronology to Market Regulation Services Inc. The CEO and CFO were found to have authorized, permitted, or acquiesced in these breaches, acting contrary to the public interest.

Following a finding that the respondents engaged in an illegal scheme to induce vulnerable individuals to transfer locked-in RSPs into private companies, the Commission held a hearing on sanctions and costs.

The Commission ordered permanent cease trade orders, director and officer bans, and reprimands against the architects of the scheme.

The registrant involved had his registration terminated and was subject to a five-year cease trade order.

The respondents were ordered to pay costs totaling $108,000, apportioned based on their degree of responsibility.

Following the dismissal of the defendants' motions for leave to appeal, the plaintiffs sought costs of $8,528.20 on a partial indemnity basis.

The defendants argued the amount was excessive and suggested $2,500.

The court agreed the requested amount was excessive for a relatively uncomplicated matter, but found the defendants' suggestion too modest given counsel's experience and the importance of the motion.

The court fixed costs at $4,000 inclusive of fees, disbursements, and GST, payable within 30 days.

The defendants sought leave to appeal an interlocutory order that dismissed their motions to strike summonses to witnesses and a notice of examination.

The underlying motion was to strike the plaintiffs' statement of claim.

The defendants argued the proposed examinations were too broad and amounted to a fishing expedition.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions, no good reason to doubt the correctness of the order, and no matters of public importance, as the scope of examination was properly tied to the broad issues raised in the motion to strike.

The Ontario Securities Commission held a hearing regarding allegations that the respondents participated in an illegal distribution of shares in four private companies.

The scheme involved convincing individuals to access locked-in retirement savings plans by transferring funds to purchase shares in the private companies, after which the respondents would lend a portion of the invested amount back to the investors.

The Commission found that Cornwall, Simpson, and Xavier participated in an illegal distribution of securities without a prospectus or available exemption.

Xavier, a registrant, was also found to have failed his know-your-client and suitability obligations and failed to process trades through his sponsoring dealer.

All respondents, including Cook who provided qualification letters, were found to have engaged in conduct contrary to the public interest.

Staff of the Ontario Securities Commission brought a motion to remove counsel for the respondent, Deborah Weinstein, on the basis of a conflict of interest.

Counsel had previously represented six outside directors of the same company during the investigation phase, and Staff anticipated calling these directors as witnesses.

The Commission found that a potential conflict of interest existed because counsel might have to cross-examine his former clients.

However, balancing the public interest in the administration of justice with the respondent's right to counsel of choice, the Commission ordered a compromise: counsel could remain on the record provided the respondent retained independent counsel to conduct any cross-examination of the former clients, with strict screening measures in place.

The respondents brought a motion to dismiss the proceeding against them on the basis that it was commenced outside the six-year limitation period under section 129.1 of the Securities Act.

Staff alleged a course of conduct involving unregistered trading and illegal distributions that culminated in sales to broker dealers prior to the limitation date, but argued that subsequent receipt of proceeds and certain private share transfers brought the conduct within the limitation period.

The Commission held that the subsequent events were not integral to the alleged wrongdoing and that the Statement of Allegations contained no separate allegations of wrongdoing for events after the limitation date.

The motion was granted and the proceeding dismissed.

The Alcohol and Gaming Commission of Ontario proposed to revoke the respondent's liquor licence.

The respondent moved to stay the hearing, alleging witness tampering by an employee of the appellant.

The appellant retained a private investigator to interview witnesses.

The respondent sought a summons for the investigator to testify and produce interview records.

The Board refused, citing irrelevance.

The Divisional Court overturned the Board's decision, finding a breach of natural justice.

The Court of Appeal dismissed the appellant's appeal, holding that the investigator's evidence was material to the stay motion, the judicial review application was not premature due to the denial of natural justice, and the evidence was not protected by solicitor-client or litigation privilege.

The applicant brought a motion to stay proceedings before the Alcohol and Gaming Commission, alleging that its witnesses had been interfered with by their supervisor.

During an adjournment, the LCBO retained an investigator to interview the witnesses.

The applicant sought to compel the investigator's attendance and the production of witness statements to support its stay motion.

The Commission refused to issue the summons, finding the evidence irrelevant.

On judicial review, the Divisional Court held that the Commission breached natural justice by precluding the applicant from leading material evidence.

The Court ordered the Commission to issue a summons for the investigator and require the production of the witness statements, finding they were not protected by solicitor-client or litigation privilege.

The applicant sought judicial review to quash an order of the Alcohol and Gaming Commission of Ontario that granted intervenor status to the Liquor Control Board of Ontario in two stay motions.

The stay motions were based on allegations of witness tampering by an LCBO employee and the improper distribution of transcripts.

The Divisional Court held that the standard of review was correctness and found that the Board erred in granting intervenor status.

The Court concluded that the LCBO had no interest in the stay motions and its intervention would introduce a distortion into the adversarial process.

The order granting standing to the LCBO was quashed.