Andrew Duncan Gray

The appellant corporation appealed an order requiring it to indemnify a former director for costs and fines incurred in Ontario Securities Commission proceedings.

The director had admitted to the OSC that he failed to disclose a material change regarding a disputed contract, but maintained he honestly and reasonably believed the contract was not in jeopardy.

The Court of Appeal dismissed the appeal, holding that under s. 124(3) of the Canada Business Corporations Act, the corporation bears the onus of proving the director did not act honestly and in good faith, or lacked reasonable grounds to believe his conduct was lawful.

The application judge made no error in finding the corporation failed to meet this burden.

The appellant appealed a summary judgment dismissing his claim for damages against the respondents for breach of contract.

The appellant had an agreement with the deceased respondent granting him an option to purchase a valuable painting upon the deceased's death.

The deceased sold the painting before his death, breaching the contract.

The motion judge dismissed the claim on the basis that the appellant failed to prove he had the financial means to exercise the option.

The Court of Appeal allowed the appeal, finding that the motion judge erred by assuming the role of a trial judge and that there were genuine issues for trial, including the proper option price and whether the appellant needed to show he had the means to purchase the painting.

The appellants, minority shareholders of Asbestos Corporation Limited, commenced an action in Ontario in 1987 for an oppression remedy and other relief following the takeover of the corporation by the Province of Quebec.

The appellants did not pursue the Ontario action until 2003, after exhausting five other proceedings in different forums.

The motion judge dismissed the action for delay and, in the alternative, stayed it on the basis of forum non conveniens and abuse of process.

The Court of Appeal upheld the motion judge's decision, finding no error in her conclusions that the delay was inexcusable, Quebec was the more appropriate forum, and the attempt to relitigate issues already decided elsewhere constituted an abuse of process.

The defendants, eight major financial institutions, successfully defended an appeal of a decision denying certification of a class action regarding mortgage contracts.

The defendants sought their costs of the appeal.

The plaintiffs argued that no costs should be awarded, asserting the proceeding was a test case and involved a matter of public interest under section 31(1) of the Class Proceedings Act.

The Divisional Court rejected the plaintiffs' arguments, finding the case was not a test case, did not raise a novel point of law, and was not a matter of public interest, but rather involved individual commercial mortgage contracts.

The court awarded the defendants modified partial indemnity costs fixed at $20,000 per defendant.

The appellant appealed an order staying its Ontario proceedings on the basis of forum non conveniens.

The appellant argued the motion judge failed to apply the 'clearly establish' test from Amchem and improperly allowed the avoidance of multiple proceedings to trump other Muscutt factors.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the heavy burden test and comprehensively weighed all relevant factors in determining that New York was the more appropriate forum.

The appellants appealed the dismissal of their motions to certify eight separate class proceedings against various financial institutions.

The claims alleged that the respondents incorrectly interpreted mortgage provisions regarding partial prepayment rights and early discharge penalties.

The Divisional Court upheld the motion judge's decision, finding that the pleadings failed to disclose a cause of action as they relied on implied terms not supported by the express language of the mortgages.

The court also agreed that the proposed classes were overly broad, individual issues overwhelmed any common issues, and a class proceeding would be unmanageable and not the preferable procedure.

The third parties, who were directors and officers of the plaintiff company, sought leave to appeal an interlocutory order refusing to strike out third party claims brought against them personally by the defendant auditors.

The defendants had been sued for negligence in performing audits and sought contribution and indemnity from the third parties for their alleged tortious personal conduct.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions and no good reason to doubt the correctness of the motions judge's decision, as the pleadings properly founded a reasonable cause of action against the third parties.

The applicants, minority shareholders of Sterling Centrecorp Inc., applied to the Ontario Securities Commission for an order under sections 104 and 127 of the Securities Act.

They sought to exclude the votes of certain shareholders who had signed support agreements from the 'majority of the minority' approval required for a going private transaction under OSC Rule 61-501, arguing these shareholders were 'joint actors' with the acquiring insiders.

The Commission found that one major shareholder, a former member of the acquisition group, was a joint actor and ordered his votes excluded.

However, the Commission concluded that the other supporting shareholders were not joint actors merely by virtue of signing the support agreements.

As the transaction still achieved the requisite majority of the minority approval even after excluding the joint actor's votes, the Commission declined to cease trade the transaction or require a new shareholder meeting.

The appellant appealed a motions judge's decision finding that the parties had reached a settlement.

The Court of Appeal dismissed the appeal, holding that the motions judge's conclusion was amply supported by the email and voicemail correspondence between the lawyers and that she committed no reviewable error.

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 appellant appealed a motion judge's decision declining jurisdiction on the basis of forum non conveniens.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the motion judge's discretionary decision that the appellant failed to demonstrate Ontario was the forum conveniens.

The court also refused leave to appeal the costs award, finding no error in principle.

Staff of the Ontario Securities Commission alleged that the respondents, K.Y. Ho and Betty Ho, engaged in insider trading contrary to subsection 76(1) of the Securities Act by disposing of ATI shares prior to a public announcement that ATI would fall short of its forecasted revenue and earnings for Q3-2000.

The Commission dismissed the allegations, finding that Staff failed to establish that the revenue shortfall was a known fact at the time the shares were disposed of, and consequently, the respondents could not have had actual knowledge of it.

Furthermore, the Commission held that K.Y. Ho's charitable donations of shares were gifts made in good faith and did not constitute 'sales' for the purposes of the insider trading provisions.

The respondent brought a motion for a nonsuit at the close of Staff's case, arguing that Staff failed to establish a prima facie case of insider trading.

The Commission held that a nonsuit motion is available in its proceedings and exercised its discretion not to put the respondent to an election on whether to call evidence.

Applying the test of whether there is any evidence which, taken at its highest, establishes a reasonable inference in favour of Staff, the Commission found that a prima facie case had been made out.

The motion for a nonsuit was dismissed.

One Commissioner dissented on the issue of election, finding that the respondent should have been required to elect whether to call evidence.

The appellant brought a motion for summary judgment to enforce its security in convertible subordinated debentures against the respondent Brookfield, a wholly owned subsidiary of the issuer BCED.

The motion was dismissed, and the appellant appealed.

The Court of Appeal upheld the motion judge's interpretation of the trust indenture, finding that the term 'Company' in Article VII, section 7.01 referred only to BCED and its successors, not its wholly owned subsidiaries.

The appeal was dismissed.

The applicant, a respondent in an insider trading proceeding, brought a pre-hearing motion seeking a ruling that the Commission could not make a public interest order against her under section 127 of the Securities Act if Staff failed to prove the specific allegation of insider trading under section 76(1).

A prior panel had dismissed the same motion as premature.

The Hearing Panel agreed with the prior panel, holding that it was inappropriate to tie the hands of the decision-makers before hearing the evidence and closing submissions.

The motion was dismissed as premature.

The appellant appealed an order of the Divisional Court.

The Court of Appeal found no error in the Divisional Court's decision and agreed with the reasons given by Blair R.S.J. The appeal was dismissed with costs awarded to the respondents.

The applicant, a professional horse trainer, sought judicial review of a penalty imposed by the Ontario Racing Commission after one of his horses tested positive for a Class III drug.

The applicant argued that the Commission denied him procedural fairness by refusing to disclose past penalty rulings, that the panel's rejection of a joint settlement proposal created a reasonable apprehension of bias, and that the imposed penalty of a 10-month suspension and $50,000 fine was patently unreasonable.

The Divisional Court dismissed the application, finding no denial of fairness, no reasonable apprehension of bias as the panel maintained an open mind, and that the penalty was reasonable given the applicant's prior disciplinary record.

The appellant, a former director and executive, appealed a trial judgment that set aside his employment contract using the oppression remedy under s. 241 of the Canada Business Corporations Act.

The appellant argued the oppression remedy should only be available to minority shareholders unable to use normal corporate machinery, and that the trial judge improperly substituted her view for the Board's business judgment.

The Court of Appeal dismissed the appeal, holding that the oppression remedy addresses abuse of power and is not limited to minority shareholders.

The Court also upheld the trial judge's finding that the Board's process in approving the contract was seriously flawed and fell outside the range of reasonableness.

Leave to appeal the costs award was also refused despite the respondents failing to prove fraud, given the appellant's egregious conduct.

The appellant appealed a trial judgment finding that he exercised undue influence over his mother in the procurement of instruments transferring property to his son.

The majority of the Court of Appeal dismissed the appeal, holding that the trial judge's finding of physical and moral control amounting to undue influence was supported by the evidence and not undermined by the opinion of a solicitor who was not privy to all family interactions.

Abella J.A. dissented, finding that any presumption of undue influence was rebutted by the mother's evidence and the cogent evidence of her solicitor.