Bruce O’Toole

The appellants appealed a Capital Markets Tribunal decision finding that their business of trading in Contracts for Difference (CFDs) constituted trading and advising in unregistered securities.

The appellants argued that the CFDs were not 'investment contracts' because the CFD providers were counterparties and did not share in profits or losses, thus failing the 'common enterprise' component of the legal test.

The Divisional Court dismissed the appeal, holding that the Tribunal correctly applied a flexible approach to the investment contract test and made no palpable or overriding error in finding that the investors were dependent on the CFD providers, thereby establishing a common enterprise.

The appellants, who were volunteer directors of corporations within the insolvent First Leaside group, appealed a motion judge's refusal to dismiss negligence and breach of fiduciary duty claims against them.

The plaintiffs, investors in the group, alleged the directors owed them a duty of care regarding the financial stewardship of the corporations.

The Divisional Court allowed the appeal and dismissed the actions against the appellants, holding that a director's duty of care is owed to the corporation, not to individual shareholders or investors, absent specific circumstances like fraud or independent tortious conduct, which were not pleaded.

The appellants appealed a decision of the Ontario Securities Commission finding they committed securities fraud and misrepresentation by selling nearly $19 million in securities without disclosing a highly critical financial report.

The Commission ordered significant administrative penalties and disgorgement of over $16.5 million.

On appeal, the Divisional Court upheld the Commission's findings, concluding that the failure to disclose the report while continuing to sell securities was objectively dishonest.

The Court also affirmed that reliance is not required for a misrepresentation finding under the Securities Act and that the Commission has broad public interest jurisdiction to order disgorgement of all funds raised through non-compliance, even if not personally retained by the wrongdoers.

The plaintiff, Rockface Capital Advisors Ltd., brought a summary judgment motion against the defendant, Mountain Province Diamonds Inc., seeking US$126,500 plus interest and costs for services rendered under a debt consultant contract.

The dispute centered on the interpretation of a contract clause defining the "Success Fee" as 0.25% of the "principal debt" with specific exclusions for accrued interest and capitalized financing fees.

Rockface argued for the full loan facility amount, while Mountain Province contended that certain fees and interest should be deducted.

The court found the contract language clear, supporting Mountain Province's interpretation, and dismissed the summary judgment motion.

The defendants brought a motion to strike the plaintiff's claim and sought a declaration that Nova Scotia law governed their Aircraft Management and Operating Agreement.

The court determined that Ontario law was the proper law of the agreement, applying principles of issue estoppel, rectification of mistake, bona fide choice of law, and public policy (attornment).

The motion to strike was granted in part: claims for regulatory complaint, inducing breach of contract against the corporate defendant, and oppression remedy were struck without leave to amend.

Claims for unlawful means and charter revenue were struck with leave to amend.

The request to strike the declaratory relief regarding a possessory lien was dismissed.

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 plaintiff sought leave to appeal an order adjourning a motion for summary judgment and the motions judge's refusal to seize herself of the matter.

All parties consented to the request for leave.

The Divisional Court found the motions judge's decision inconsistent with the Supreme Court of Canada's direction in Hryniak v. Mauldin regarding timely and affordable adjudication.

Finding good reason to doubt the correctness of the decision and that it involved matters of public importance, the court granted leave to appeal.

Following a prior proceeding, the court determined the appropriate costs payable by the unsuccessful party.

The successful defendants sought costs under s. 131 of the Courts of Justice Act and rule 57.01(1) of the Rules of Civil Procedure.

The court considered factors including indemnity, the reasonable expectations of the parties, and the fairness and reasonableness of the time and rates charged.

The court awarded the Drabble defendants the full amount claimed, finding the costs reasonable and reasonably anticipated, but reduced the costs sought by the Webb defendants after concluding their time spent was excessive in the circumstances.

The defendants moved for summary judgment dismissing a negligence and breach of contract claim against financial advisors on the basis that the action was statute‑barred under the Limitations Act, 2002.

The plaintiff alleged negligent investment advice relating to a 2010 flow‑through investment that generated significant capital gains tax.

The court applied the discoverability principle under ss. 4 and 5 of the Act and held that the plaintiff knew or ought reasonably to have known the material facts when he received and approved his 2010 income tax return in May 2011.

The plaintiff’s failure to carefully review the return did not postpone the commencement of the limitation period.

As the action was commenced more than two years later, the claim was barred.

Following a successful motion by the plaintiffs for leave to issue a Certificate of Pending Litigation and dismissal of a defendant’s cross-motion to strike affidavit evidence, the court determined the issue of costs.

The plaintiffs sought partial-indemnity costs supported by a detailed bill of costs.

The defendant argued that costs should be reserved for the trial judge due to limited financial resources, potential indemnification rights, and the plaintiffs’ CCAA protection.

The court held that impecuniosity, potential indemnification, and speculative trial costs considerations were not valid reasons to deny or delay a costs award.

Partial-indemnity costs were awarded to the successful moving parties.

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.

Following a successful appeal where the appellant prevailed on all issues, the court determined the costs of the underlying trial and application.

The appellant sought over $270,000 in total costs.

Applying the principles of fairness and reasonableness, the Court of Appeal fixed the appellant's costs of the trial at $150,000 and the costs of the application at $25,000, payable by the respondents.

The appellant condominium corporation appealed a trial decision regarding the conversion of a commercial building into a residential condominium.

The Court of Appeal allowed the appeal, finding that the respondent Lomico was a 'declarant' under the Condominium Act, that a lease of HVAC equipment to the condominium corporation was null and void because the equipment formed part of the common elements, and that the developers breached the construction warranty by failing to substantially renovate the parking garage.

The Court dismissed the developers' cross-appeal, affirming that unit owners have an appurtenant property right to lease parking spaces at market rates.

Damages and market rates were directed to a reference.