Kevin Richard

The plaintiff, a successful retail stockbroker, sued his former employer for breach of contract, alleging he was owed a 10% finder's fee on several large corporate finance transactions under an April 11, 2006 agreement.

The court found that the agreement was exclusively a retail document and did not apply to transactions involving the employer's Capital Markets group.

The court also dismissed the plaintiff's claims for negligent overpayment of his assistant, unjust enrichment, bad faith, and entitlement to unvested deferred stock units.

The action was dismissed in its entirety.

The appellant appealed a decision of the Ontario Securities Commission finding him liable for unregistered and illegal trading of securities and imposing sanctions.

The Divisional Court upheld the Commission's findings on liability, concluding it was reasonable to find the appellant engaged in acts furthering trade and received commissions.

However, the court found the Commission erred in its sanctions analysis by misapprehending the timing of a previous ban imposed on the appellant in Alberta.

The appeal was allowed in part, with the trading bans and administrative penalty set aside and remitted to the Commission for a fresh determination.

Staff of the Investment Industry Regulatory Organization of Canada (IIROC) applied for a hearing and review of an IIROC panel's sanctions decision regarding the respondent, a registered representative.

The IIROC panel had found that the respondent recommended and facilitated off-book investments in a private mortgage fund without ensuring prospectus exemptions, resulting in substantial client losses.

The panel imposed a $50,000 fine, close supervision, rewriting of exams, and $45,000 in costs, but declined to impose a suspension.

On review, the Ontario Securities Commission found that the panel erred in law and proceeded on an incorrect principle by failing to impose a suspension for participation in an illegal distribution of securities, and by inappropriately considering the alleged trauma of the proceedings on the respondent.

The Commission allowed the application and substituted its decision, imposing a two-year suspension on the respondent's registration.

The plaintiff in a proposed securities class action sought leave to appeal an interlocutory order that dismissed his motion for preemptive document production under Rule 30.04.

The motions judge had found the production request to be an overbroad fishing expedition prior to cross-examinations on a motion for leave to proceed under the Securities Act.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the original order, which properly prevented premature discovery.

The plaintiff, a former shareholder of the corporate defendant, brought motions for leave to commence a secondary market liability action under the Securities Act and for certification as a class proceeding.

The defendants filed affidavits opposing the motions.

The plaintiff served requests to inspect hundreds of confidential documents mentioned in the affidavits under Rule 30.04(2) prior to cross-examinations.

The court dismissed the motion, finding that the requests lacked specificity, relevance, and proportionality, and that allowing such a fishing expedition would undermine the statutory gatekeeping purpose of the Securities Act leave provisions.

The applicant brought a motion for directions regarding the procedure for an oppression-related application involving disputes over family-owned corporations.

The applicant sought to sever and proceed first with issues concerning ownership and valuation of shares in one corporation, arguing that those issues were discrete and could be resolved without delay.

The respondents argued the matters were intertwined and that the entire proceeding should be converted to an action and proceed to trial.

The court held that it was premature to determine whether the issues could ultimately be severed or whether a trial would be required, and that the applicant should be permitted to proceed with the proposed application hearing limited to the corporate issues identified.

The parties were directed to establish a timetable for hearing the application issues.

The moving parties brought a motion to quash an appeal from an order that declared and validated service of a fresh statement of claim.

The Court of Appeal held that the order was interlocutory because it did not determine the real matters in dispute or deprive the responding parties of any substantive defence.

The motion was allowed, the appeal was quashed, and the matter was transferred to the Divisional Court where the responding parties could seek leave to appeal.

The plaintiffs invested $50 million in a Russian oil and gas joint venture, relying on representations made by the defendants regarding the involvement of another major investor and the status of the corporate vehicles.

The plaintiffs later discovered that the corporate vehicles were sham public companies, the other investor had not funded its portion, and the defendants had engaged in stock manipulation and unauthorized issuance of free-trading shares.

The plaintiffs sued for deceit, breach of fiduciary duty, and unlawful conspiracy.

The defendants counterclaimed for breach of contract, inducing breach of contract, and malicious prosecution.

The Superior Court of Justice found several defendants liable for fraudulent misrepresentation, breach of fiduciary duty, and conspiracy, awarding substantial damages to the plaintiffs.

The defendants' counterclaim was dismissed in its entirety.

Following a merits decision finding that the respondents engaged in unregistered trading, illegal distribution of securities, and made prohibited representations, the Ontario Securities Commission held a hearing to determine sanctions and costs.

The Commission ordered permanent and long-term trading, acquisition, and exemption bans against the corporate and individual respondents, along with director and officer bans.

The Commission also ordered administrative penalties totaling $935,000, disgorgement of over $2.5 million, and costs of $305,000, finding that the respondents' conduct was serious, deceitful, and caused substantial harm to investors.

Following a finding that the respondent engaged in conduct contrary to the public interest by purchasing shares while in possession of undisclosed material facts, the Ontario Securities Commission held a sanctions and costs hearing.

The Commission declined to impose the 10-year trading bans sought by Staff, finding them excessive given that no technical breach of the Securities Act occurred.

Instead, the Commission ordered a five-year prohibition on the respondent acting as a director or officer of a reporting issuer, issued a reprimand, and ordered the respondent to pay $150,000 in costs.

The applicant and respondent submitted proposals for the appointment of an interim receiver/manager of the respondent corporation pending a shareholder meeting.

The court approved the powers set out in the applicant's proposed order.

While both proposed firms were qualified, the court appointed Duff + Phelps over Deloitte & Touche to avoid any appearance of a lack of independence, given prior contact between a director of the respondent and a representative of Deloitte.

Mercer International Inc. applied to the Ontario Securities Commission for a simultaneous hearing with the Québec Bureau de décision et de révision to consider whether AbitibiBowater's take-over bid for Fibrek Inc. should be cease traded.

The Commission acknowledged it had jurisdiction to hear the application, as Fibrek is a reporting issuer in Ontario and the bid affected Ontario shareholders.

However, the Commission declined to exercise its jurisdiction, noting that the Bureau was already seized of the matter, the applicable securities laws were substantially similar, and a simultaneous hearing would not advance the harmonization and co-ordination of securities regulatory regimes.

The application was dismissed.

The respondent, who resided in China, brought a motion for an order that the hearing on the merits be conducted electronically by video conference, citing financial inability to travel to Ontario or retain counsel.

Staff of the Commission objected, arguing that a 15-day electronic hearing involving multiple witnesses and credibility assessments would cause significant prejudice.

The Vice-Chair dismissed the motion, finding that an electronic hearing would likely cause significant prejudice to Staff and raised concerns about maintaining the integrity of the hearing process and assessing witness credibility.

The Ontario Securities Commission appealed a decision dismissing its application to continue directions freezing two offshore funds under s. 126(5) of the Securities Act.

The Commission argued for a new 'contextual reasonableness' standard rather than the established three-part RBC test.

The Court of Appeal affirmed that the RBC test—requiring a strong prima facie case of a Securities Act breach, a close connection between the misconduct and the assets, and evidence of potential dissipation—remains the appropriate standard, though it should be applied flexibly.

The Court found no error in the application judge's conclusion that the Commission failed to establish a prima facie case of a breach of the Act linked to the frozen funds.

The appeal was dismissed.

The moving parties brought a motion to revoke or vary a direction issued by the Ontario Securities Commission freezing the assets of the offshore funds.

The moving parties argued the direction contradicted a Superior Court decision refusing a Mareva injunction in a related civil proceeding.

The Commission dismissed the motion, finding that the regulatory proceeding is separate from the civil litigation and that the public interest favoured preserving the assets pending a Superior Court hearing to continue the direction.

Staff of the Ontario Securities Commission sought to extend a temporary cease trade order against the respondent pending the completion of an investigation into potentially illegal distributions and market manipulation involving several companies.

The Commission found sufficient evidence of conduct potentially harmful to the public interest to justify extending the order.

However, the Commission granted the respondent a restricted personal trading carve-out, subject to strict reporting conditions, as the investigation was ongoing and no Statement of Allegations had yet been issued.

The plaintiff appealed the judgment of the motion judge.

The Court of Appeal dismissed the appeal, agreeing with the motion judge's reasons.

Leave to appeal the costs order was refused, and costs of the appeal were awarded to the respondent in the amount of $15,000.

The prosecution appealed the dismissal of its application for prohibition and certiorari to halt a securities prosecution.

The prosecution alleged the trial judge lost jurisdiction by interfering with its case presentation, failing to rule on evidence admissibility, and failing to restrain uncivil attacks by defence counsel.

The Court of Appeal dismissed the appeal, holding that the trial judge has inherent trial management power to direct the order of evidence and defer evidentiary rulings.

While defence counsel's conduct was uncivil and improper, the trial judge's response did not deprive him of jurisdiction or prevent a fair trial.

In a securities-related class proceeding arising from alleged fraudulent statements about Indonesian gold reserves, the appellants challenged the refusal to certify negligent misrepresentation while conspiracy, fraudulent misrepresentation, and Competition Act claims had been certified.

The court held that there was no principled basis to distinguish fraudulent from negligent misrepresentation at the certification stage, given the overlap in common factual and legal issues and the low threshold for common issues under the Class Proceedings Act, 1992.

The court further held that, where three related claims were already proceeding as a class action, it was sensible and efficient to include negligent misrepresentation on the same litigation track.

The appeal was allowed and the certification order amended accordingly.

The union applied for a direction that a first collective agreement be settled by arbitration, and an employee subsequently applied for termination of bargaining rights.

During the hearing, the employer accepted the union's proposed collective agreement.

The Board ruled orally that the parties had effected a proposed collective agreement, which required a ratification vote.

The union sought reconsideration of this ruling, arguing that contract principles should not apply and that the proposal was implicitly withdrawn.

The Board dismissed the reconsideration request.

The Board also held that the subsequent ratification vote in favour of the collective agreement could not be construed as an expression of employee wishes regarding the termination application, and directed the parties to make further submissions on the status of the two applications.