Lawrence E. Thacker

The appellants sought to overturn Tribunal decisions refusing production of documents for abuse of process stay motions and denying a stay of securities enforcement proceedings arising from unlawful disclosure of compelled examination evidence in related receivership proceedings.

Applying appellate standards of review and the abuse of process framework, the court held that the Tribunal did not err in requiring a threshold showing for disclosure, in refusing to adopt the criminal-law summary dismissal threshold from Haevischer, or in concluding there was no tenable abuse of process case warranting disclosure.

The court further held that the unlawful disclosure, while serious, did not establish prejudice to trial fairness or to the integrity of the justice system that would be manifested, perpetuated, or aggravated by continuing the enforcement hearing, and that the grave public interest in adjudicating the securities fraud allegations strongly weighed against a stay.

One sanction issue succeeded only to correct the joint and several disgorgement amount from $2 million to $1.965 million.

The Capital Markets Tribunal issued its sanctions and costs decision against the respondents following findings of fraud and obstruction of the Commission's investigation.

The Tribunal ordered significant administrative penalties, disgorgement, and permanent market bans against the senior officers for their roles in orchestrating and participating in multiple frauds that diverted over $100 million in investor funds.

The chief compliance officer, who acted under direction and cooperated with the investigation, received a lesser administrative penalty and a 10-year market ban.

The respondents were also ordered to pay a portion of the Commission's costs.

The Ontario Securities Commission alleged that Bridging Finance Inc. and its principals, David and Natasha Sharpe, along with Chief Compliance Officer Andrew Mushore, engaged in multiple frauds and conflicts of interest involving the misappropriation of investor funds.

The Capital Markets Tribunal found that David and Natasha Sharpe perpetrated frauds relating to loans to entities associated with Sean McCoshen, Ninepoint Partners LP, and Gary Ng, diverting millions of dollars for their personal benefit and to facilitate the purchase of Bridging shares.

The Tribunal also found that Mushore participated in the Ninepoint fraud.

Furthermore, the Tribunal concluded that the respondents obstructed the Commission's investigation by making false statements, creating false paper trails, intimidating witnesses, and permitting surreptitious monitoring of a compelled interview.

Bridging was found to have failed to address conflicts of interest, for which the Sharpes were deemed liable as directing minds.

The moving party, a respondent in a Capital Markets Tribunal proceeding, sought an adjournment of the closing submissions timetable due to her inability to pay outstanding legal fees resulting from a receivership asset freeze.

Her counsel alternatively sought to be removed from the record for non-payment of fees.

The Tribunal dismissed both motions.

The Tribunal found that the moving party's delay in addressing the fee issue did not constitute exceptional circumstances warranting an adjournment.

Furthermore, the Tribunal refused to remove counsel from the record, concluding that doing so at the final stage of a lengthy merits hearing would cause significant disruption and harm the administration of justice.

The Trustee of the Alexander Morris Sharpe Trust sought the court's advice and directions on whether legal fees for David and Natasha Sharpe could be paid from the trust, which was established for the "sole and exclusive" benefit of their minor son, Alexander Morris Sharpe.

The Office of the Children's Lawyer opposed, arguing the trust language was clear and restrictive.

The court ruled that the trust funds could not be used to pay the legal fees, as such payments would not be for the "sole and exclusive" benefit of the minor beneficiary, even if there was a collateral benefit.

This is an appeal from a motion judge's decision dismissing the plaintiffs' motion to amend their pleadings in a class action alleging a multi-bank conspiracy to fix gold and silver prices and engage in 'spoofing'.

The motion judge had found the proposed amendments time-barred or improper for joinder.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by treating amendments as new causes of action when they were alternative theories based on existing facts, and by misapplying the 'actual knowledge' standard for limitation periods.

The Court also found a palpable and overriding error in the motion judge's assessment of JP Morgan's joinder, concluding that the CFTC order did not preclude conspiratorial spoofing allegations.

The amendments were allowed, with the possibility for some respondents to plead a limitations defence at trial.

The plaintiffs moved for an interlocutory injunction to prevent the defendant from terminating an agreement for the supply of water and wastewater treatment services.

The defendant had threatened to terminate the services on 60 days' notice unless the plaintiffs paid a massive retroactive price increase.

The court found that the injunction was prohibitory, but that the plaintiffs had met the higher standard of a strong prima facie case regardless.

The court held that the defendant's use of the termination clause to extort a unilateral price increase was a strong prima facie breach of the duty of good faith performance.

Finding irreparable harm and a balance of convenience favouring the plaintiffs, the court granted the injunction for nine months to allow the plaintiffs to build their own water recycling facilities.

The Ontario Securities Commission (OSC) brought a motion seeking an order for the issuance of Letters of Request in Commissions under section 152 of the Securities Act.

The OSC required evidence from two individuals, one residing in British Columbia and one in Massachusetts, USA, for a proceeding before the Capital Markets Tribunal concerning Bridging Finance Inc. and its respondents.

The respondents did not oppose the motion.

The court granted the order, finding that the proposed witnesses had relevant evidence and that the Letters of Request and Commissions accorded with Rule 34.07(2) of the Rules of Civil Procedure.

The respondents, David and Natasha Sharpe, brought motions to stay the enforcement proceeding against them, alleging abuse of process.

They argued that the Ontario Securities Commission improperly filed their compelled testimony in a court application for a receiver without obtaining a section 17 order under the Securities Act, thereby prejudicing their right to a fair hearing and bringing the administration of justice into disrepute.

The Capital Markets Tribunal dismissed the motions, finding that the public availability of the compelled evidence did not prejudice their right to a fair hearing, as any potential witness tainting could be addressed through cross-examination.

Furthermore, the Tribunal concluded that the Commission's conduct, while based on a mistaken interpretation of the law, was not in bad faith and did not constitute the rare and exceptional circumstances required to justify a stay of proceedings.

The applicants, David and Natasha Sharpe, sought to vary an earlier Tribunal decision that denied their request for disclosure in support of their pending motions to stay the proceeding for abuse of process.

They argued that the Supreme Court of Canada's recent decision in R v Haevischer, which established a 'manifestly frivolous' standard for summary dismissal of stay applications in criminal cases, changed the applicable law.

The Tribunal dismissed the application, finding that Haevischer applies specifically to criminal cases and summary dismissals of stay applications, not to disclosure requests in administrative proceedings where the onus lies on the party seeking disclosure.

The respondents moved to stay an enforcement proceeding and requested the Tribunal issue summonses to five members of OSC Staff to testify at the stay motion hearing.

The respondents sought evidence regarding the OSC's decision to include compelled evidence in a receivership application without a section 17 order.

The Tribunal dismissed the request, finding it was an impermissible attempt to re-litigate issues already decided in a previous motion for documentary disclosure, and that the respondents failed to establish a reasonable basis that the summonses would lead to relevant evidence of abusive conduct.

The moving party brought a motion to quash an application for judicial review of an interlocutory disclosure decision made by the Capital Markets Tribunal.

The applicants sought to review the Tribunal's dismissal of their motion for additional disclosure, which they argued was necessary for their upcoming stay motions.

The Divisional Court granted the motion to quash, finding that the application was premature and that the applicants failed to demonstrate exceptional circumstances warranting early intervention in the ongoing administrative proceedings.

Staff of the Ontario Securities Commission brought motions seeking further witness summaries from the respondents and the dismissal of the respondents' stay motions.

The respondents argued that the scheduling of these motions should be delayed pending their application for judicial review of a previous Tribunal decision.

The Tribunal held that the judicial review application should not delay the proceeding.

The Tribunal scheduled the motion for further witness summaries to be heard orally, treated Staff's motion to dismiss the stay motions as withdrawn, and set a schedule for the exchange of materials for the stay motions.

The respondents, David and Natasha Sharpe, brought a motion to adjourn their motions for a stay of proceedings, the merits hearing, and related filing dates until their judicial review application of a prior Tribunal decision is determined by the Divisional Court.

The Capital Markets Tribunal dismissed the motion, finding that the pending judicial review application did not constitute an 'exceptional circumstance' under Rule 29(1) of the Tribunal's Rules of Procedure.

The Tribunal emphasized the public interest in proceeding expeditiously and noted that the mere filing of a judicial review application does not automatically warrant an adjournment.

David and Natasha Sharpe brought motions for disclosure of various documents to support their motions for a stay of proceedings based on an alleged abuse of process.

The alleged abuse was the Ontario Securities Commission's filing of their compelled testimony in a public court record for a receivership application without first obtaining a section 17 order.

The Capital Markets Tribunal dismissed the disclosure motions, finding that the Sharpes failed to establish a tenable case of abuse of process, as the disclosure occurred in a separate proceeding, did not affect the adjudicative fairness of the current proceeding, and there was no evidence of bad faith by OSC Staff.

The respondent, former Chief Compliance Officer of Bridging Finance Inc., brought a motion for an expedited or separate merits hearing regarding the allegations against him, citing financial constraints.

Staff of the Ontario Securities Commission and other respondents opposed the motion.

The Capital Markets Tribunal dismissed the motion, finding that the allegations against the moving party were inextricably intertwined with those against the other respondents, and that his proposed mechanisms would not result in a just, expeditious, and cost-effective proceeding.

The respondents David and Natasha Sharpe brought motions to stay the enforcement proceeding, alleging abuse of process related to the Commission's use of compelled evidence without a section 17 order.

The Tribunal held a scheduling hearing and determined that the stay motions should be heard before the merits hearing, as the potential efficiencies outweighed the risk of duplicated effort.

The Tribunal also declined to delay the stay motions pending the outcome of a related judicial review application, citing the public interest in proceeding expeditiously.

A schedule was set for the disclosure motions, stay motions, and the merits hearing.

Following a trial where the plaintiffs recovered $87,917 on a $15 million claim for breach of a royalty agreement, the court determined costs and interest.

The defendants had made a $400,000 offer to settle just prior to trial.

The court found the plaintiffs were successful on only one issue and failed to accept a reasonable offer.

Applying Rule 49.13, the court awarded the plaintiffs partial indemnity costs up to the date of the offer, and the defendants partial indemnity costs thereafter.

This resulted in a net costs award of $177,905.99 payable by the plaintiffs to the defendants.

Prejudgment interest was awarded at the Courts of Justice Act rate.

The Receiver brought an unopposed motion for a Claims and Unitholdings Identification Order and for approval of its activities as described in its 12th Report.

The court found the proposed order practical and reasonable to assist the Receiver with the distribution process.

The motion was granted and the Receiver's activities were approved.

The Receiver brought a motion for an order approving an interim cash distribution of $78 million to the two institutional unitholders in Bridging SMA 2 LP.

The court found it appropriate to make an interim distribution but reduced the amount to $46 million to account for the potential impact of substantively consolidating the various Bridging Funds, an issue that had yet to be determined.