Catherine V. Weiler

An appellant who was found not criminally responsible on a charge of assault in 2007 appealed a Superior Court decision dismissing her application for a declaration that section 672.56 of the Criminal Code violated her Charter rights under section 7.

The appellant argued that the section did not afford a not criminally responsible accused the ability to compel the Ontario Review Board to hold a hearing to review a decision by a hospital to significantly increase restrictions on liberty.

The Court of Appeal dismissed the appeal, finding that Part XX.1 of the Criminal Code provides adequate procedural safeguards and liberty protections for such accused persons.

The appellant appealed his convictions for fraud over $5,000 and possession of property obtained by crime exceeding $5,000.

The trial judge found that the appellant became wilfully blind to the fraudulent nature of funds deposited into his business account.

The appellant claimed he was unaware of the fraud and that the funds originated from identity theft of a third party.

The Court of Appeal upheld the convictions, finding that the trial judge properly applied the doctrine of wilful blindness based on inherently suspicious circumstances and cumulative circumstantial evidence, including the pattern of deposits, frequent cash withdrawals, and purchases unrelated to any legitimate business purpose.

The appellant was convicted of three counts: intentionally or recklessly causing damage by fire to his dwelling house knowing it was inhabited or occupied (s. 433(a)), intentionally or recklessly causing damage by fire that seriously threatened the safety and property of residents in proximity (s. 434.1), and wilfully endangering his dog (s. 445(1)(a)).

The trial judge found the appellant deliberately set a fire by igniting paper under a television.

On appeal, the court allowed the appeal on counts one and four, quashing those convictions, while upholding the conviction on count two.

An appeal under Part XX.1 of the Criminal Code against the disposition of the Ontario Review Board dated October 2, 2017.

The appellant, declared not criminally responsible on account of mental disorder, challenged three aspects of the Board's decision: (1) the finding that the appellant posed a significant threat to public safety; (2) the Board's failure to consider a conditional discharge; and (3) the wording of condition 4(f) of the disposition.

The Court of Appeal upheld the Board's findings on the first two issues but amended condition 4(f) to clarify the Board's intention regarding restrictions on the appellant's attendance at locations where children under 14 are present.

The appellant appealed a disposition order from the Ontario Review Board that imposed a hybrid detention order requiring detention at the Secure Forensic Unit of the Centre for Addiction and Mental Health with discretion to transfer to the General Forensic Unit or allow community residence in approved accommodation.

The appellant, found not criminally responsible for threatening others with a knife in 2011, had been living in the community under conditional discharge but experienced significant deterioration in 2017 due to medication non-compliance and substance use.

The Court of Appeal dismissed the appeal, finding the Board's findings of significant threat and the necessity of the detention order were amply supported by evidence.

The appellant appealed a disposition of the Ontario Review Board that found him to remain a significant threat to public safety and ordered a conditional discharge with monthly reporting requirements.

The appellant sought an absolute discharge.

The Court of Appeal upheld the Board's decision, finding that the Board's conclusion was reasonable based on evidence that the appellant intended to discontinue medication if absolutely discharged, had persistent persecutory delusions, and had a history of cannabis use that exacerbated his mental condition.

The court found it reasonable for the Board to conclude that absolute discharge would likely result in medication cessation, decompensation, and increased risk of threatening behaviour.

Following a merits decision finding that the respondents breached Ontario securities law by mishandling principal protected notes and causing a $1.2 million deficiency, the Commission held a sanctions and costs hearing.

The Commission ordered the respondents to jointly and severally disgorge $1,181,397.89, representing the funds obtained through unsupported redemption requests.

The Commission also imposed administrative penalties of $200,000 each, 10-year market participation bans, and joint and several costs of $487,950.34, emphasizing the need for specific and general deterrence given the deliberate and dishonest nature of the misconduct.

The applicants applied under section 144 of the Securities Act to vary a merits decision that found they had committed numerous contraventions of Ontario securities law.

Staff of the Commission brought a motion to dismiss the application on the basis that it failed to demonstrate a tenable legal basis.

The Commission granted the motion and dismissed the application, finding that the applicants' arguments regarding alleged conflicts of interest, disclosure issues, and factual errors were essentially an appeal of the merits decision.

The evidence presented was neither new nor compelling, and the applicants failed to meet the standard for section 144 relief.

The law firm Crawley MacKewn Brush LLP (CMB) brought a motion seeking an order to be appointed as representative counsel for approximately 3,000 investors in the receivership of Crystal Wealth Management Systems Inc. The court-appointed Receiver, Grant Thornton Limited, and the Ontario Securities Commission opposed the motion, arguing that it would be duplicative of the Receiver's role and would result in unnecessary professional fees.

The court dismissed CMB's motion, finding that the Receiver was already adequately protecting and advancing the investors' interests, and that appointing representative counsel would add unnecessary expense without good reason.

Following a merits hearing where the respondents were found to have engaged in the illegal distribution of securities and unregistered trading through a complex trading software license scheme, the Commission held a sanctions and costs hearing.

The Commission ordered disgorgement of the net funds obtained from investors, administrative penalties, and significant market participation bans ranging from 6 to 10 years.

The majority held that the unlawful scheme must be terminated entirely, rejecting the respondents' request to continue receiving payments from existing investors.

A partial dissent would have allowed an exception for existing investors to maintain their contracts if they chose to do so.

The Ontario Securities Commission found that Pro-Financial Asset Management Inc. (PFAM) and its CEO, Stuart McKinnon, committed numerous breaches of Ontario securities laws.

PFAM acted as a market intermediary for principal protected notes (PPNs) and failed to deal fairly, honestly, and in good faith with its clients, resulting in a $1.2 million deficiency in the PPN trust account due to unsupported redemption requests and price variances.

PFAM also breached its standard of care as an investment fund manager, failed to maintain minimum working capital, failed to keep satisfactory records, and failed to maintain adequate compliance systems.

McKinnon, as a director and officer, was found to have authorized, permitted, or acquiesced in these breaches and failed to fulfill his responsibilities as Ultimate Responsible Person (URP) and Ultimate Designated Person (UDP).

The conduct was found to be contrary to the public interest.

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 Ontario Securities Commission found that the respondents engaged in unregistered trading and illegal distribution of securities through the 'Strictrade Offering', a complex software licensing scheme marketed for its tax benefits.

The Commission determined the offering was an 'investment contract' under the Pacific Coast Coin test.

The respondents breached registration and prospectus requirements, and the registrant respondents failed to meet their know-your-client, know-your-product, and suitability obligations.

Allegations of misrepresentation in the contracts were dismissed.

Following a merits hearing where the respondents were found to have engaged in unregistered trading, illegal distributions, and fraud, the Commission held a sanctions and costs hearing.

The Commission ordered permanent market bans against all respondents, finding their conduct egregious and harmful to investors who lost over $1.6 million.

Administrative penalties of $500,000 and $300,000 were imposed on the individual respondents, along with orders to disgorge the amounts obtained from the fraud.

The respondents were also ordered to pay the costs of the investigation and hearing.

Staff of the Commission sought an order compelling the respondents to provide witness summaries pursuant to Rule 4.5 of the Ontario Securities Commission Rules of Procedure.

The respondents argued that because they are parties to the proceeding, they are not "witnesses" within the meaning of the Rules or the Statutory Powers Procedure Act, and therefore should not be required to provide summaries of their own evidence.

The Commission rejected this argument, holding that the requirement to provide witness summaries applies to all witnesses, including parties who intend to testify.

The respondents were ordered to provide the required summaries and document references.

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.

Staff of the Ontario Securities Commission alleged that the respondent had inadequacies in its systems of controls and supervision, resulting in clients paying excess fees.

The respondent self-reported the issue, cooperated with Staff, and entered into a no-contest settlement agreement.

The Commission approved the settlement, which included a compensation plan, enhanced policies, a voluntary payment of $250,000, and $20,000 for costs, finding it to be in the public interest.

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.

The Ontario Securities Commission held a merits hearing regarding allegations that the respondents engaged in unregistered trading, illegal distributions, prohibited representations, and fraud.

Timothy German and his company Ensign purported to sell shares of Bradon Technologies Ltd. to investors, making false representations about an imminent sale of Bradon's technology and offering a buy-back guarantee.

German pooled investor funds to buy Bradon shares at a lower price, keeping the difference.

Joseph Compta, Bradon's founder, facilitated German's share purchases and failed to disclose material facts to investors who contacted him, thereby participating in the fraud.

The Commission found that all respondents breached the Securities Act and acted contrary to the public interest.

The moving parties, subject to enforcement proceedings by the Ontario Securities Commission, brought a motion seeking a preliminary hearing to determine whether their software licensing arrangement constituted an 'investment contract' under the Securities Act.

They argued that Staff's decision to bring enforcement proceedings after lengthy cooperative communications amounted to unfairness.

The Commission dismissed the motion, finding no legal precedent or statutory authority to grant a conditional stay or separate preliminary hearing on the merits of the allegations.