Asli Deniz Eke

The applicant, Oscar Furtado, brought a motion to adjourn the merits hearing due to ongoing health issues, supported by an independent medical examination from a psychiatrist.

Staff of the Ontario Securities Commission did not oppose the adjournment.

The Capital Markets Tribunal found that the medical evidence established exceptional circumstances, as the applicant required time to stabilize and meaningfully participate in the hearing.

The Tribunal granted the adjournment to July 2024.

The Tribunal also ordered that specific portions of the medical report detailing symptoms and diagnosis be redacted to protect the applicant's privacy, while general context and conclusions remain public.

Oscar Furtado brought a motion to adjourn the merits hearing on medical and disclosure grounds, to compel further disclosure from Staff, and to keep parts of the hearing and record confidential.

The Tribunal dismissed the adjournment request, finding the medical evidence insufficient to establish exceptional circumstances and no delay in disclosure warranting an adjournment.

The Tribunal also dismissed the disclosure request, finding Staff met its obligations.

The Tribunal granted the confidentiality request in part, ordering redactions of specific medical details and certain exhibits to balance the open court principle with Furtado's privacy interests.

The respondent, Oscar Furtado, brought a motion to adjourn the merits hearing indefinitely due to serious physical and mental health issues.

He also requested that the motion be heard in confidence and that documents containing his personal health information be sealed.

The Capital Markets Tribunal found that Furtado's health constituted exceptional circumstances warranting an adjournment, but declined to grant an indefinite delay, rescheduling the hearing to November 2023.

Applying the Sherman Estate test, the Tribunal ordered that specific details regarding Furtado's symptoms, diagnosis, and treatment be redacted from the adjudicative record and hearing transcript to protect his personal dignity, while maintaining the public's right to know how his health issues affected his ability to participate.

Staff of the Ontario Securities Commission brought a motion for a further and better witness summary from the respondent, Oscar Furtado.

Furtado had provided an amended witness summary stating he would testify generally in accordance with his compelled interview transcripts and refer to documents in Staff's disclosure.

The Capital Markets Tribunal found the amended witness summary deficient under Rule 27(3) of the Tribunal's Rules of Procedure.

The Tribunal held that stating the witness would testify 'generally in accordance with' transcripts created ambiguity about the scope of evidence, failing to disclose its substance.

Furthermore, the broad reference to Staff's disclosure did not sufficiently identify the documents to be referred to.

The Tribunal ordered Furtado to deliver a further and better witness summary.

The moving party sought an extension of time to file a notice of motion for leave to appeal a Divisional Court decision that dismissed their action for delay.

Despite the brief delay in filing the motion for leave being due to counsel's inadvertence, the Court of Appeal dismissed the motion.

The court found the proposed appeal lacked merit and emphasized the moving party's long history of procedural misconduct, which caused significant prejudice to the responding parties, particularly due to the death of a critical witness whose evidence was never preserved.

The court concluded that the "justice of the case" demanded the dismissal of the motion to protect the integrity of the civil justice process and prevent an unfair adjudication on the merits.

The plaintiff obtained a default judgment against the defendants after a series of procedural irregularities and without notifying the defendants' counsel, despite knowing the defendants were represented.

One of the key defendants subsequently died.

The defendants successfully moved to set aside the default judgment but their motion to dismiss the action for delay was denied.

On appeal, the Divisional Court upheld the setting aside of the default judgment due to the plaintiff's counsel's sharp practice.

The Court allowed the defendants' appeal and dismissed the action for delay, finding the 11-year delay was inordinate, inexcusable, and caused substantial prejudice to the defendants due to the death of the key defendant.