Anna Perschy

The moving parties sought to introduce new evidence on a motion to vary a decision refusing to stay an order of the Ontario Securities Commission.

The new evidence related to steps taken by IIROC regarding the moving parties' conditional registration in Quebec.

The Divisional Court struck the new evidence, finding it did not meet the Palmer test for fresh evidence as it was not relevant to the decisive issue of whether the motions judge erred in refusing the stay, and it did not meet the reliability criterion.

The moving parties sought an extension of time under s. 21(5) of the Courts of Justice Act to bring a motion to set aside or vary a decision dismissing their request to stay sanctions imposed by the Ontario Securities Commission for insider trading.

The Divisional Court dismissed the motion, finding that the moving parties failed to form the requisite intention to appeal within the four-day window, provided no satisfactory explanation for the delay, and that an extension would prejudice the public interest in protecting capital markets.

The court also found no apparent merit to the underlying motion.

The appellant employer appealed liability only from a wrongful dismissal judgment, arguing the trial judge applied the wrong legal test for constructive dismissal.

The court held that constructive dismissal is not confined to unilateral changes to a specific fundamental contractual term and may also arise where the employer's conduct objectively repudiates the entire employment relationship.

On the factual findings, a series of unjustified criticisms, warning letters, and probation made continued employment intolerable.

The appeal was dismissed with costs.