Gavin S. MacKenzie

Staff of the Ontario Securities Commission alleged that the respondents engaged in the business of trading and advising in securities without registration by operating a contract for difference (CFD) trading program.

The respondents argued that CFDs were not securities and that they merely acted as employees executing trades.

The Commission found that the CFDs were investment contracts and therefore securities.

The Commission further held that the respondents engaged in acts in furtherance of trades, exercised discretionary authority over investor accounts, and provided advice on CFD trading for a business purpose, thereby breaching the registration requirements under the Securities Act.

Allegations regarding a breach of a prior undertaking were dismissed due to the undertaking's lack of clarity.

The appellant, found not criminally responsible (NCR) for assault with a weapon and possession of a dangerous weapon, appealed the Ontario Review Board's disposition that continued her detention order.

She sought an absolute or conditional discharge, or a new hearing.

The Court of Appeal dismissed the appeal, finding the Board's conclusion reasonable.

The court noted the appellant's schizophrenic illness requiring medication, her lack of insight into her condition, and the risk of decompensation and danger to the public without supervision, especially given her history of substance abuse contributing to the index offences.

The court emphasized that her progress occurred under direct hospital supervision and that there was no record of success in a controlled community setting.

The appellant, found not criminally responsible due to mental disorder, appealed the Ontario Review Board's conditional discharge, seeking an absolute discharge.

He argued the Board's finding of significant public safety risk was unreasonable, citing his non-violent history and good behaviour.

Amicus curiae argued the Board failed to fully exercise its inquisitorial powers regarding the appellant's reintegration and treatment.

The Court of Appeal found the Board's risk assessment reasonable, supported by the treatment team's assessment of potential harm without supervision.

The court also found no basis to interfere with the Board's inquisitorial powers, noting the appellant's improved situation and the Board's continued attentiveness to treatment and community supports.

The appeal was dismissed.

The appellant, found not criminally responsible for murder, appealed a continued Detention Order issued by the Ontario Review Board.

The appeal was based on two grounds: an alleged breach of procedural fairness due to time restrictions during the Board hearing, and an error in denying a conditional discharge.

The Court of Appeal dismissed the appeal, finding that the Board met the high degree of procedural fairness required and that the Detention Order was a reasonable disposition given the appellant's lack of insight, behavioural issues, and continued risk to public safety.

The applicant sought a hearing and review of IIROC merits and sanctions decisions which found he inappropriately altered signed client documents and suspended his registration for 12 months.

The applicant argued the IIROC Panel erred by admitting unalleged misconduct, reversing the onus of proof, making improper inferences from circumstantial evidence, and imposing excessive sanctions.

The Ontario Securities Commission dismissed the application, finding the IIROC Panel's decisions were reasonable, applied the correct onus of proof, and appropriately relied on both direct and circumstantial evidence.

This addendum to an appeal decision addresses the issue of costs.

Due to a lack of agreement between the parties regarding the costs incurred below, the Court of Appeal reserved the determination of costs to the trial judge hearing the second trial.

The applicant, a municipal councillor, sought judicial review of a city council decision and an integrity commissioner's report finding he engaged in sexual misconduct and obstructed an investigation.

The integrity commissioner recommended, and the city council imposed, a 90-day suspension of pay, a formal reprimand, and other remedial actions.

The Divisional Court upheld the integrity commissioner's findings and process, finding no breach of procedural fairness and that the investigation was properly commenced.

The court upheld most of the remedial actions imposed by the city council but quashed one measure that restricted the councillor to communicating with the public solely via his city email address, finding it overly broad and unreasonable.

The appellant, Kevin Luangchaleun, appealed an Ontario Review Board disposition that ordered his detention in the Ontario Shores Centre for Mental Health Sciences with conditions allowing community living in approved accommodation.

The appellant sought an absolute discharge or a conditional discharge with a residence requirement, arguing the Board's order was unreasonable.

The Court of Appeal dismissed the appeal, finding the Board's decision was reasonable, based on the treating psychiatrist's opinion that the appellant remained a significant threat to public safety if not closely supervised and monitored.

The Court of Appeal for Ontario allowed an appeal in a medical negligence action, ordering a new trial.

The plaintiffs alleged delayed diagnosis of hydrocephalus in their child, leading to brain damage.

The trial jury found no breach of standard of care.

The appellate court found that the defendants' expert witness exceeded his role by opining on the credibility and reliability of the parties, thereby breaching his duty of independence.

The trial judge erred by not specifically instructing the jury to disregard these improper opinions and by failing to exclude them.

Despite the appellants' counsel not objecting at trial, the errors constituted a substantial wrong or miscarriage of justice, tainting the jury's verdict and warranting a new trial.

The applicant sought a review of an IIROC hearing panel decision that ordered his merits hearing to proceed electronically by videoconference due to the COVID-19 pandemic.

The applicant argued that IIROC lacked jurisdiction to change the hearing mode over his objection and that the IIROC Rules entitled him to an in-person oral hearing.

The Ontario Securities Commission upheld the IIROC decision, finding that the IIROC Rules permit a hearing panel to choose the hearing mode and that a videoconference hearing satisfies a respondent's entitlement to attend and be heard 'in person'.

The applicant applied for a hearing and review of an IIROC decision and sought to introduce new documentary and oral evidence not included in the original record.

IIROC Staff brought a motion objecting to the admission of the new evidence.

The Commission held that the proposed evidence did not meet the 'new and compelling' standard required by the Canada Malting test, as the documents and witnesses were known or ought to have been known to the applicant at the time of the original hearing.

The motion was granted, and the applicant was precluded from adducing the new evidence.

The applicant, a registered representative, sought a stay of two IIROC decisions that suspended his registration for 12 months for inappropriately altering client documents.

The Commission applied the three-part RJR-MacDonald test and granted the stay pending the disposition of his application for hearing and review.

The Commission found that the review application raised serious issues, the applicant would suffer irreparable financial and reputational harm without a stay, and the balance of convenience favoured a stay given the low risk of client harm and the imposition of close supervision conditions.

The plaintiffs brought a medical malpractice action against the defendant obstetricians, alleging that their negligence caused the infant plaintiff to suffer a severe brain injury.

Following a jury trial, the jury found that the defendants breached the standard of care and that the breaches caused the injuries.

However, the trial judge refused to enter judgment on the verdict, finding that the jury's answers explaining how the breaches caused the injuries were insufficient and non-responsive.

The trial judge ordered a new trial.

The plaintiffs appealed, arguing the trial judge exceeded her jurisdiction.

The defendants cross-appealed, arguing the action should have been dismissed for lack of evidence on causation.

The Divisional Court dismissed both the appeal and cross-appeal.

The majority held that the trial judge correctly concluded the jury's answers on causation were insufficient, as they merely repeated the breaches of the standard of care and failed to explain the causal link, leaving the central issue in doubt.

The respondent's husband died during a follow-up angiogram as part of a clinical trial.

The respondent sued the principal investigator, Dr. Strauss, for negligence and breach of fiduciary duty.

The jury found breach of standard of care but no causation in negligence.

The trial judge found breach of an ad hoc fiduciary duty and awarded damages, stating causation was removed from the analysis in the fiduciary context.

The Court of Appeal allowed the appeal, holding that the trial judge erred by not examining causation in the fiduciary context.

The Court found no causal link between the alleged fiduciary breach and the loss, relying on the jury's finding on causation in the negligence claim, as the claims were based on substantially the same conduct.

The action was dismissed.

The applicant wife brought a motion seeking production and answers to refusals related to the respondent husband's financial disclosure during marriage contract negotiations.

The wife argued that the husband's reliance on his professional advisors, including his lawyer, to prepare his financial disclosure constituted an implied waiver of solicitor-client privilege over his lawyer's file.

The court dismissed the wife's motion, holding that merely stating reliance on a lawyer to perform their job in preparing disclosure does not put the legal advice itself in issue, and therefore does not amount to an implied waiver of solicitor-client privilege, which is considered to be as close to absolute as possible.

The appellants appealed a partial summary judgment order finding them liable for breach of contractual warranty and/or negligent representation arising from an inaccurate tree inventory attached to an Asset Purchase Agreement for the sale of tree farm assets.

The respondents claimed a shortfall of 83,106 saleable trees from the represented inventory of 236,341 trees.

The Court of Appeal allowed the appeal and set aside the liability finding, holding that the tree inventory was not a contractual representation or warranty but rather a description of purchased assets.

The court found that the respondents had expressly agreed through due diligence inspection provisions that they had satisfied themselves as to the quantity and quality of plant material, precluding subsequent claims of misrepresentation.

An appeal under Part XX.1 of the Criminal Code concerning the disposition of an individual found not criminally responsible on account of mental disorder.

The appellant challenged the Ontario Review Board's decision to maintain a detention order rather than grant a conditional discharge.

The appellant argued his risk could be managed safely in the community with a conditional discharge and resort to the Mental Health Act.

The Court of Appeal upheld the Board's decision, finding it was not unreasonable given the evidence of the appellant's lack of insight into his mental illness, continued cannabis use, limited protective effect of anti-psychotic medication, and risk factors including occasional violence.

The applicant sought a stay of execution of the Court of Appeal's order pending disposition of its application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal had reinstated an arbitrator's multi-million-dollar damages award against the applicant for breach of a purchasing and management agreement relating to solar energy projects.

The applicant argued that the arbitrator exceeded his jurisdiction by awarding damages for lost profits.

The motion judge dismissed the stay application, finding that while the applicant met the threshold for a serious issue to be tried, the balance of convenience strongly favoured denial of the stay given the respondent's severe liquidity problems and existential risks if the stay was granted, as opposed to the applicant's substantial financial resources.

The appellant appealed an application judge's decision setting aside an arbitrator's award of $12.3 million in damages for lost profits.

The arbitrator had found that the respondent unlawfully terminated a purchase and management agreement by delivering a "Defunct Project Notice" in bad faith, thereby depriving the appellant of the value of awarded contracts.

The application judge had set aside the award, finding the arbitrator exceeded jurisdiction by awarding damages for lost profits, which were allegedly precluded by the contract's indemnity provisions.

The Court of Appeal allowed the appeal, holding that the arbitrator acted within jurisdiction by interpreting and applying the substantive provisions of the contract, and that section 46(1)3 of the Arbitration Act permits only limited review for jurisdictional error, not review of the merits of the arbitrator's decision.

The appellant appealed a disposition of the Ontario Review Board ordering his continued detention at the General Forensic Unit of the Centre for Addiction and Mental Health.

The appellant had been found not criminally responsible for assault and robbery offences committed in 2013 near Sudbury.

He sought an absolute or conditional discharge, arguing he posed no significant risk of serious harm to the public.

The Court of Appeal dismissed the appeal, finding the Board's decision to be reasonable given concerns about the appellant's drug use triggering psychotic decompensation and his lack of community living experience.

However, the court expressed concern that the appellant's inability to abstain from drug use had become an insurmountable barrier to obtaining privileges and suggested the Board consider crafting a disposition to facilitate community living experience in future reviews.