Braden Stapleton

The moving party brought a motion under s. 21(5) of the Courts of Justice Act to set aside a decision of a single judge of the Divisional Court.

The single judge had quashed the moving party's appeal from a pre-hearing decision of the Capital Markets Tribunal on the basis that the Tribunal's decision was interlocutory, not final.

The Divisional Court panel dismissed the motion, finding that the motion judge applied the correct law and made no error in concluding that the Tribunal's decision regarding the use of criminal disclosure was not a final decision.

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.

Staff of the Ontario Securities Commission brought a motion to summarily dismiss the respondent's motion to stay the enforcement proceeding for abuse of process.

The respondent alleged that Staff failed to adequately protect privileged documents obtained during a related criminal investigation.

The Tribunal held that the applicable standard for summary dismissal of a stay motion is the 'tenable case' standard, and that the Supreme Court's decision in Haevischer does not apply outside the criminal context.

The Tribunal found that Staff failed to establish that the respondent's motion had no reasonable prospect of success, as the alleged breach of privilege could potentially undermine the integrity of the justice system even if it did not compromise the fairness of the hearing.

Staff's motion was dismissed.

The Ontario Securities Commission brought a motion to quash the appellant's appeal of a Capital Markets Tribunal decision on the basis of prematurity.

The Tribunal had previously ruled that the Wagg process did not apply to documents the OSC obtained through its own investigation and intended to use in a merits hearing.

The Divisional Court granted the motion to quash, finding that the Tribunal's evidentiary ruling was an interlocutory decision, not a final decision, and therefore no appeal was permitted under s. 10(1) of the Securities Act.

The respondent brought a motion to restrict Staff's use of documents that were also used in a parallel criminal proceeding against the respondent and his company.

The respondent argued that the documents should be subject to the screening process established in D.P. v Wagg.

The Tribunal dismissed the motion, finding that the Wagg process did not apply because Staff obtained the documents through its own investigation, rather than receiving them as Crown disclosure.

The Tribunal noted that applying Wagg would improperly impose unnecessary constraints on Staff.

Alice Zhou brought a motion seeking intervenor status in an enforcement proceeding against Xiao Hua (Edward) Gong for alleged securities fraud and unregistered trading.

Zhou claimed to represent investors in China and raised concerns about Gong's identity and potential forged documents.

The Capital Markets Tribunal dismissed the motion, finding that Zhou was not directly affected by the proceeding, would not likely make a unique and useful contribution, and had other avenues to communicate her concerns, such as contacting Staff.

This is an appeal from a Superior Court order appointing a receiver and manager for Go-To Developments Holdings Inc. and related entities, and continuing freeze directions, following an Ontario Securities Commission investigation into alleged securities law breaches, including misappropriation of investor funds by Oscar Furtado.

The appellants challenged the application judge's denial of an adjournment and the admission of Mr. Furtado's examination transcripts.

The Court of Appeal dismissed the appeal, finding no error in the adjournment denial, especially in light of fresh evidence demonstrating further misconduct by Mr. Furtado.

The court declined to address the admissibility of transcripts as the issue was not raised below.