David C. Moore

The applicants, licensed by the Ontario Racing Commission, faced a hearing regarding licence suspensions, disqualification of horses, redistribution of purses, and significant fines.

They brought an urgent application for judicial review before a single judge of the Divisional Court, arguing that the Commission failed to provide adequate pre-hearing disclosure, specifically witness statements or summaries.

The court held that in administrative cases involving the loss of livelihood, the standard of disclosure approaches the criminal standard, requiring summaries of anticipated evidence.

The court prohibited the Commission from commencing the hearing until 20 days after the required disclosure was made.

The licensees brought a pre-hearing motion requesting additional disclosure from the Administration, including detailed outlines of expected evidence, identification of specific documents to be relied upon, unredacted investigator notes, and all investigation reports.

The Commission dismissed the motion, finding that the disclosure already provided satisfied the requirements of the Statutory Powers Procedure Act, the Commission's Rules of Procedure, and common law procedural fairness.

The dismissal was subject to conditions requiring the disclosure of any future witness statements and a review of investigation reports for non-confidential portions.

The appellant, a director of a public holding company, appealed orders removing him from the board of directors and denying him indemnification for costs incurred in resisting his removal.

The application judge had previously found the appellant engaged in oppressive conduct regarding a related-party loan but temporarily allowed him to remain on the board at the pleasure of the independent directors.

When the corporation's circumstances changed, including the commencement of litigation against the majority shareholder, the application judge ordered the appellant's permanent removal.

The Court of Appeal dismissed the appeal, holding that the application judge had jurisdiction under s. 241 of the Canada Business Corporations Act to order the conditional service and subsequent removal of the director.

The Court also upheld the denial of indemnification, finding the appellant did not act in the best interests of the corporation in resisting his removal.

The parties appeared before the Court of Appeal to determine issues of pre-judgment and post-judgment interest following an appeal regarding a wrongful dismissal.

The appellant argued against pre-judgment interest due to the respondent's delay in issuing the claim and the fact that the appeal judgment awarded no more than the original termination offer.

The court rejected these arguments, noting the appellant had use of the funds, and awarded pre-judgment interest.

The court also declined to vary the agreed post-judgment interest rate of 4 percent, finding the delay in obtaining Employment Insurance repayment information was avoidable.

Costs of the attendance were awarded to the respondent.

The appellants, former senior officers and directors of Hollinger Inc., appealed an order compelling them to submit to questioning by an Inspector appointed under the Canada Business Corporations Act.

They argued that being compelled to answer questions in Canada would violate their Charter rights against self-incrimination, as their answers could be used against them in ongoing criminal proceedings in the United States.

The Court of Appeal dismissed the appeal, finding that the appellants were not entitled to a constitutional exemption because the Canadian inquiry was fact-finding rather than prosecutorial.

The Court also declined to stay the order, noting that the application judge had established a procedure to rule on specific questions and craft protective mechanisms on a case-by-case basis.

The applicants sought to vary management cease trade orders (MCTOs) under section 144 of the Securities Act to permit trading in connection with a proposed going private transaction by Hollinger Inc. The Commission found that the applicants failed to demonstrate that varying the MCTOs would not be prejudicial to the public interest.

The Commission cited concerns regarding the lack of current audited financial statements, the adequacy of the independent valuation, the potential conflicts of interest in the proposed litigation trust, and evidence of undue influence exerted by related parties on the independent committee and valuator.

The applications were denied.

The applicant, a registered trader, sought a hearing and review of a decision by the hearing panel of Market Regulation Services Inc. (RS) finding him guilty of frontrunning contrary to Rule 4-204(1) of the Rules of the Toronto Stock Exchange.

The applicant argued he was denied procedural fairness, that the RS Panel erred in law by finding that risk and disadvantage to the client were not elements of the offence, and that the RS Panel overlooked evidence suggesting the trade was meant to facilitate a client order.

The Commission affirmed the RS Panel's decision, holding that the applicant had notice of the case to meet, that risk and disadvantage are not elements of Rule 4-204(1), and that the applicant's proposed inference was unsupported speculation.

The sanctions, including a $15,000 fine and a one-month suspension, were confirmed.

The Ontario Securities Commission held a hearing to determine whether the respondents breached section 25(1)(a) of the Securities Act by trading in securities without being registered.

The respondents had accepted approximately US $21 million from investors for a "high yield program" involving bank guarantees and medium-term bank notes.

The Commission found that the high yield program constituted an investment contract and therefore a security under the Act.

The Commission further held that the respondents' actions, including accepting funds and providing proof of funds letters, constituted acts in furtherance of trades.

As the respondents were acting as market intermediaries in Ontario, they were not exempt from registration.

The Commission concluded that the respondents traded in securities without registration contrary to the Act, with a subsequent hearing to determine sanctions.

The defendants appealed a motions judge's answers to questions posed under Rule 21.01(1)(a) regarding a pension plan surplus following the sale of a business division.

The appeal concerned only the answers relating to administrative costs and expenses.

The Court of Appeal allowed the appeal, finding that the questions were inextricably linked to other issues that the motions judge had correctly directed to trial, such as the effect of statements in pension booklets and reliance on them.

The Court set aside the answers and directed that the issues regarding administrative costs and expenses also proceed to trial.

Following an appeal involving a long-term municipal employee who lost his employment due to amalgamation, the Court of Appeal issued a brief endorsement fixing the costs of the appeal and the proceedings below at $40,000 inclusive of disbursements and GST.

The respondent, a middle manager for the former City of North York, was terminated following municipal amalgamation and unsuccessful job competitions.

The trial judge awarded 116 weeks' pay in lieu of notice, including an extension for bad faith conduct under Wallace, finding the employer's competition process was 'sloppy'.

The Court of Appeal allowed the employer's appeal, holding that the employer's conduct did not amount to bad faith or unfair dealing justifying a Wallace extension.

The court reduced the notice period to the 80 weeks originally offered by the employer.

The respondent's cross-appeal seeking reinstatement on the basis that he was an office holder was dismissed.

The applicant sought judicial review of two decisions by the Ontario Human Rights Commission refusing to deal with his age discrimination complaint on the basis that it was filed outside the six-month limitation period.

The applicant argued that the Commission breached the rules of natural justice by providing insufficient reasons and that its decision was patently unreasonable.

The Divisional Court dismissed the application, finding that the Commission's screening function attracts a standard of patent unreasonableness, the reasons provided were adequate for an administrative screening decision, and the decision to dismiss the complaint for untimeliness was supported by the evidence.

The appellants appealed a decision finding oppressive conduct and breach of fiduciary duty.

The motion judge found that the corporation was represented to the respondent investor as the owner of a specific technology, but the individual appellant deliberately withheld title to the patents for his own purposes.

The Divisional Court upheld the findings, noting that the investor was entitled to rely on the representations made and that the doctrine of reasonable expectations applied.

The court also upheld the remedy, which included declaring the corporation the owner of the process and directing an accounting for profits derived from a related contract.

The appeal was dismissed.

Appeal and cross-appeal in a solicitor's negligence action arising from corporate and estate transactions involving an executor who became president and shareholder of a corporation in which the estate held shares.

The court held that the law firm's retainer in relation to the initial transaction was limited and did not impose a duty to warn of the risk of beneficiary claims, particularly given the sophistication and role of the client.

However, the firm did owe a duty to warn in relation to a later acquisition transaction in which it was involved in all aspects and knew the estate was excluded.

The court upheld the trial judge's lost chance analysis, apportionment of fault, and nominal damages award.

The grievor, a former Employment Equity Manager, filed four grievances against the Ministry of Transportation.

She alleged that her transfer to a Project Manager position was arbitrary, discriminatory, and the culmination of a series of acts of sexual discrimination and harassment.

She also grieved the employer's handling of a harassment complaint made against her by a subordinate, and the employer's decision not to grant her an interview for a subsequent Employment Equity Manager competition.

The Public Service Grievance Board dismissed all four grievances.

The Board found that the transfer was made for legitimate business reasons and to remove the grievor from a discordant work environment, not for discriminatory reasons.

The Board also found no breach of the duty of fairness in the handling of the complaint against her, and concluded that the decision not to interview her for the competition was a reasonable, conscious decision by the employer.

The Teamsters and individual complainants alleged that Steinberg breached the duty to bargain in good faith by negotiating a collective agreement with final offer selection and labour peace provisions, and subsequently selling its Ontario retail operations to A & P. They also alleged that the transaction constituted a sale of the distribution business under section 63 of the Labour Relations Act, and that the structure of the deal and A & P's subsequent hiring practices were motivated by anti-union animus.

The Ontario Labour Relations Board dismissed all applications and complaints, finding no breach of the duty to bargain in good faith, no sale of the distribution business, and no anti-union animus in the transaction's structure or A & P's hiring practices.

The union referred a grievance to the Ontario Labour Relations Board regarding the employer's construction activities.

The employer raised a constitutional issue, arguing that bank construction falls under federal jurisdiction, and alternatively argued that the union had abandoned its bargaining rights or was estopped from asserting them due to years of inactivity.

The Board found the constitutional issue was res judicata and that construction of a bank is not integral to the core banking function, thus falling under provincial jurisdiction.

The Board held that the union had not abandoned its bargaining rights, as the employer had largely used union forces.

However, the Board found the union was estopped from enforcing the sub-contracting provisions of the collective agreement due to its 15-year silence, but held that the estoppel would end with the issuance of this decision.

The grievance was dismissed.

The respondent Steinberg Inc. obtained an ex parte order under the Companies' Creditors Arrangement Act (CCAA) from the Quebec Superior Court staying all proceedings against it.

The Ontario Labour Relations Board considered whether this stay order applied to ongoing unfair labour practice and related employer proceedings before the Board.

The Board held that the broad language of the CCAA and the court order encompassed its adjudicative processes, notwithstanding the remedial nature of the Labour Relations Act.

The Board further held that the proceedings could not be severed to continue against the co-respondent A&P unless the applicants withdrew their complaints against Steinberg.

The applicants and complainants brought a motion seeking a direction from the Board that the respondent Steinberg produce a witness to testify regarding an allegation of a sale of business under section 64 of the Labour Relations Act.

The respondents argued that the statutory duty under section 64(13) was satisfied because the co-respondent, A&P, had produced a witness.

The Board rejected this argument and directed Steinberg to adduce viva voce testimony of all facts within its knowledge material to the allegation.

The respondents in several human rights complaints regarding 'adults only' condominium policies brought preliminary motions challenging the Board of Inquiry's jurisdiction and the naming of individual directors as parties.

The Board held that it has jurisdiction under section 52(1) of the Charter to determine whether the Code's definition of age violates equality rights.

The Board also declined to remove the individual directors as respondents, noting they could be found personally liable for causing the corporations to discriminate, but removed the 'Board of Directors' as it is not a legal entity.