Joel Wiesenfeld

Following certification of a class proceeding concerning foreign exchange transactions in registered accounts, the plaintiffs sought substantial indemnity costs based on an unaccepted offer to settle made prior to the certification motion.

The defendants argued the outcome of the certification motion was less favourable than the offer and disputed the amount of fees and disbursements claimed.

The court held that the result of the certification motion was as favourable as the plaintiffs’ offer within the meaning of Rule 49.10 and that the defendants’ objections were overly technical.

Certain fees and disbursements were reduced, but the court concluded the remaining amounts were fair and reasonable in light of the work required for the certification motion.

Substantial indemnity costs were awarded from the date of the offer to settle.

The plaintiffs brought a motion for certification of a proposed class action against the defendants regarding foreign currency conversions in registered accounts.

The plaintiffs alleged that the defendants charged undisclosed, unnecessary, and unauthorized foreign exchange fees when converting foreign currency to Canadian dollars in RRSPs and other registered accounts.

The court found that the plaintiffs met all five criteria for certification under section 5 of the Class Proceedings Act, 1992, including disclosing causes of action for breach of contract, breach of fiduciary duty, and unjust enrichment.

The action was certified as a class proceeding.

The Executive Director of the Ontario Securities Commission applied under s. 144 of the Securities Act to vary or revoke a prior Commission decision that required notice be given to two corporate account holders of a bank before disclosing compelled documents to a foreign regulator.

Staff also sought a sealing order for fresh evidence without disclosing it to the bank.

The Commission granted the sealing order but required confidential disclosure to the bank's counsel to ensure procedural fairness.

The Commission dismissed the s. 144 application, finding that Staff was improperly using the provision as an appeal mechanism, which is contrary to the legislative intent of the Act and the public interest.

Staff of the Ontario Securities Commission sought an order under subsection 17(1) of the Securities Act to permit a foreign securities regulator to disclose compelled documents to a foreign criminal law enforcement agency.

The documents related to two account holders and were obtained from a bank via a summons.

Staff argued that notice to the account holders was not required.

The Commission held that the account holders, who were named in the summons, were 'persons or companies named by the Commission' under subsection 17(2)(a) and were therefore entitled to reasonable notice and an opportunity to be heard.

The issue of whether their consent was required under subsection 17(3) was deferred until after notice was given.

Staff of the Ontario Securities Commission brought a settlement hearing regarding the respondents John R. Miszuk and Kenneth G. Howling, former officers of Biovail Corporation.

Miszuk admitted to failing to take appropriate care in considering the recognition of revenue and foreign exchange accounting in Biovail's interim financial statements.

Howling admitted to failing to take greater care to ensure accurate information was disseminated to the investing public regarding the financial impact of a truck accident.

The Commission approved the settlement agreements, finding the agreed sanctions, which included reprimands, director and officer bans, and costs payments, to be within acceptable parameters and in the public interest.

The respondents brought a motion for an order requiring Staff of the Ontario Securities Commission to make meaningful disclosure of documents relevant to the specific allegations against them.

Staff had provided a database containing over 4.3 million pages of documents obtained during a four-year investigation, without separating relevant from irrelevant material.

The Commission held that Staff had not satisfied its legal obligation to make meaningful disclosure simply by delivering the massive database.

Staff was ordered to apply reasonable judgment to identify and disclose the documents relevant to the specific allegations against each respondent, rather than foisting the obligation to sift through the material onto the respondents.

The moving party defendants sought leave to appeal a motions judge's refusal to strike out the plaintiff's claims for 'knowing assistance of breach of fiduciary duty' and 'assisting or facilitating breach of contract' in a proposed class action arising from investments in a hedge fund.

The Divisional Court granted leave to appeal, finding that there were conflicting decisions regarding the existence of the tort of assisting breach of contract, and good reason to doubt the correctness of the decision regarding knowing assistance of breach of fiduciary duty given the plaintiff was not a client of the defendants.

The issues were deemed to be of general importance to the investment industry.

Staff of the Ontario Securities Commission alleged that the respondents, K.Y. Ho and Betty Ho, engaged in insider trading contrary to subsection 76(1) of the Securities Act by disposing of ATI shares prior to a public announcement that ATI would fall short of its forecasted revenue and earnings for Q3-2000.

The Commission dismissed the allegations, finding that Staff failed to establish that the revenue shortfall was a known fact at the time the shares were disposed of, and consequently, the respondents could not have had actual knowledge of it.

Furthermore, the Commission held that K.Y. Ho's charitable donations of shares were gifts made in good faith and did not constitute 'sales' for the purposes of the insider trading provisions.

The respondent brought a motion for a nonsuit at the close of Staff's case, arguing that Staff failed to establish a prima facie case of insider trading.

The Commission held that a nonsuit motion is available in its proceedings and exercised its discretion not to put the respondent to an election on whether to call evidence.

Applying the test of whether there is any evidence which, taken at its highest, establishes a reasonable inference in favour of Staff, the Commission found that a prima facie case had been made out.

The motion for a nonsuit was dismissed.

One Commissioner dissented on the issue of election, finding that the respondent should have been required to elect whether to call evidence.

The appellants, a stockbroker and two brokerage firms, appealed a trial judgment finding them liable for negligence and breach of contract resulting in the respondents' investment losses.

The trial judge found the broker engaged in unauthorized trading and the firms failed to supervise him or warn the clients.

The respondents cross-appealed the dismissal of their claims for loss of opportunity and punitive damages.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's findings on liability, apportionment, mitigation, and costs.

The moving party brought a motion for leave to intervene as a friend of the court in an appeal involving stock broker liability.

The court applied the test for intervention and found that the proposed intervention would not make a useful contribution to the resolution of the appeal, as the issues in the main appeal were essentially fact-driven and the intervention was not supported by any of the parties.

The motion for intervenor status was dismissed with costs.

The applicant, a respondent in an insider trading proceeding, brought a pre-hearing motion seeking a ruling that the Commission could not make a public interest order against her under section 127 of the Securities Act if Staff failed to prove the specific allegation of insider trading under section 76(1).

A prior panel had dismissed the same motion as premature.

The Hearing Panel agreed with the prior panel, holding that it was inappropriate to tie the hands of the decision-makers before hearing the evidence and closing submissions.

The motion was dismissed as premature.

The appellant, an unauthorized dealer, sold genuine Seiko watches lawfully acquired from outside the authorized Canadian distribution network.

The respondent, the authorized Canadian distributor, obtained a permanent injunction at trial preventing the appellant from advertising or selling Seiko watches in Canada, arguing that the sale of the watches without the authorized warranty and point-of-sale service constituted passing off.

The Supreme Court of Canada allowed the appeal and struck out the injunction, holding that neither the classic nor the extended tort of passing off applies where a vendor sells identical, lawfully acquired goods under their original trademark, provided there is no misrepresentation to the public.

The union brought an application under section 63 and a complaint under section 89 of the Labour Relations Act against two banks and their privately appointed receivers following the insolvency of Windsor Packing Company Limited.

The union argued that the receivers were successor employers and were liable for unpaid union dues and other collective agreement obligations.

The Board held that the private appointment of a receiver-manager does not constitute a sale or transfer of a business under section 63.

However, the Board found that the receiver, acting as an agent of the insolvent company, violated section 64 by failing to deduct and remit union dues and ignoring the collective agreement while employing bargaining unit members to wind down operations.

The receiver was ordered to pay the union dues for the period it acted as the employer.