Kristian Borg Olivier

The applicant sought an order compelling the respondent to answer questions during an Ontario examination conducted pursuant to a Letter of Request issued by a California court in a civil securities fraud action.

The respondent refused to answer numerous questions, invoking the Fifth Amendment to the United States Constitution due to concerns that her answers could be used in a potential U.S. criminal investigation.

The court held that evidentiary procedures under a Letter of Request are governed by Canadian law, not foreign constitutional protections.

Concerns regarding the potential use of compelled testimony in U.S. criminal proceedings were matters for the American courts to determine.

The respondent was therefore required to answer the questions notwithstanding the asserted Fifth Amendment privilege.

In a complex Commercial List case management proceeding involving multiple condominium corporations, lenders, and other parties arising from alleged fraud related to loans arranged for condominium corporations, the court addressed whether a previously scheduled separate hearing of a threshold issue should proceed.

The threshold issue concerned whether certain loans were enforceable against the condominium corporations.

Several parties withdrew their earlier consent to bifurcate the proceedings under Rule 6.1.01 of the Rules of Civil Procedure.

The court held that, absent unanimous consent, it lacked jurisdiction to compel a separate hearing of the threshold issue and therefore cancelled the proposed hearing.

The court instead directed that the actions proceed expeditiously to a consolidated trial with a structured discovery process and encouraged mediation.

The plaintiff sought an interim injunction and preservation order against former employees who started a competing realty tax business, alleging breach of non-competition and non-solicitation agreements.

The court found a serious issue to be tried but concluded the plaintiff failed to demonstrate irreparable harm, as any lost sales or market share could be compensated in damages.

The balance of convenience favoured the defendants.

The court dismissed the motion for an interim injunction and forensic inspection but ordered the defendants to preserve any documents and devices belonging to the plaintiff.

The court determined the appropriate costs award following objections raised by the respondents to a letter of request issued from the State of California seeking evidence.

The respondents raised legitimate concerns regarding the breadth and time frame of the evidence sought, prompting the applicant to significantly narrow the request and limit the potential use of the evidence.

In deciding costs, the court considered the conduct of the parties and comparable authority involving similar requests for evidence in aid of foreign proceedings.

Although both sides advanced cost submissions on a partial indemnity scale, the court awarded a reduced lump-sum costs amount to the applicant.

The Institute of Chartered Accountants of Ontario (ICAO) appealed a Divisional Court decision that quashed professional misconduct convictions against three auditors regarding their 1997 audit of Livent Inc. The auditors cross-appealed the Divisional Court's decision upholding other convictions.

The Court of Appeal allowed the ICAO's appeal, finding that the Discipline Committee did not breach procedural fairness and provided adequate reasons for its findings of misconduct.

The Court also held that subsequent legislative amendments retroactively validated the Discipline Committee's costs award.

The auditors' cross-appeal was dismissed, and the Discipline Committee's original decisions and penalties were reinstated.

The applicants sought leave to appeal to the Divisional Court from an order dismissing their motion to strike a summons to witness.

The respondent had issued the summons to examine a representative of the applicants in connection with a pending motion under Rule 21.01(1)(a).

The court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decision that the evidence was potentially relevant, and concluding that the proposed appeal did not involve matters of general importance.