Mark Edward Bailey

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 Ontario Securities Commission sought the appointment of a receiver over the assets of Traders Global Group Inc. and related entities based on allegations of fraud and unregistered securities trading.

The receiver was appointed in January 2024.

More than nineteen months later, the respondents brought a motion to discharge the receiver, and the receiver sought directions regarding disclosure of data to the Commission.

The court found that significant changes in circumstances had occurred since the appointment, including the dismissal of related U.S. proceedings due to misconduct by CFTC staff whose evidence had supported the receivership appointment, the discovery of a Nova Scotia decision that undermined the novelty of the Commission's legal theory, and substantial delay in the investigation without issuance of an Application for Enforcement Proceeding.

The court granted the respondents' alternative request to vary the appointment order, reducing the frozen assets from tens of millions to $10 million in escrow, while retaining the receiver to administer the escrow and act as intermediary for data disclosure.

The court also confirmed the receiver's authority to share non-privileged data with the Commission under the appointment order.

The appellants appealed two decisions of the Capital Markets Tribunal finding they committed breaches of Ontario securities law, including securities fraud, illegal distribution, and unregistered trading, and imposing sanctions including disgorgement and administrative penalties.

The appellants argued the Tribunal made palpable and overriding errors of fact and erred in law in its interpretation of the disgorgement remedy.

The Divisional Court dismissed the appeal, finding the Tribunal's factual findings were amply supported by the evidence and its interpretation of the disgorgement remedy was correct and within its broad public interest discretion.

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 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 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 appellant Superintendent of Financial Services appealed a CCAA judge's order lifting a stay of proceedings and ordering the debtor companies into bankruptcy.

The appellant argued that a deemed trust arose under the Pension Benefits Act upon the wind up of two pension plans during the CCAA proceedings, and that this trust should have priority over secured creditors.

The Court of Appeal dismissed the appeal, holding that the CCAA judge reasonably exercised his discretion to transition the proceedings to bankruptcy under the BIA, where provincial deemed trusts are rendered inoperative by the doctrine of federal paramountcy.

The applicant sought judicial review of a director's delegate's decision which overturned an arbitrator's finding that the applicant was not bound by the $3,500 limit for medical and rehabilitation benefits under the Statutory Accident Benefits Schedule (SABS).

The Divisional Court held that the director's delegate reasonably concluded that sections 14 and 18 of the SABS create limits on liability rather than exclusions, meaning the burden of proof remains on the insured.

However, the court found the director's delegate erred in concluding that the Minor Injury Guideline is entirely binding as if it were part of the SABS, holding instead that it is only incorporated by reference where expressly required for interpretation.

The application for judicial review was allowed and the matter remitted for a new preliminary issue hearing.

The moving parties, representing non-union active employees and retirees of a company in separate CCAA proceedings, sought leave to intervene in an appeal after oral arguments had concluded and judgment was reserved.

The appeal involved issues under the Pension Benefits Act and the Personal Property Security Act that could significantly impact the moving parties' interests.

The Court of Appeal granted the motion to intervene, finding the moving parties would provide a useful perspective.

To prevent injustice, the intervention was limited to existing issues and the record, and the moving parties were ordered to pay the responding party's reasonable costs for responding to their factum.

The appellant appealed a decision of the Financial Services Tribunal dismissing his claim for a pension from his former employer.

The appellant argued that the pension plan's locking-in provision was clear and entitled him to a pension, or alternatively, that the ambiguous provision should be interpreted in his favour using the contra proferentem rule.

The Divisional Court dismissed the appeal, finding the Tribunal's interpretation of the ambiguous provision was reasonable and consistent with the legislative context, and that the Tribunal made no error in declining to apply the contra proferentem principle.

In a liquidating CCAA proceeding, the court considered whether a deemed trust under the Pension Benefits Act arose in respect of pension plan wind-up deficiencies, giving priority over secured creditors.

Applying the Supreme Court's decision in Indalex, the court held that no deemed trust arose because the pension plans were not wound up prior to the CCAA Initial Order.

The court granted the second lien lenders' motion to lift the stay of proceedings to allow a bankruptcy petition to proceed, concluding that imposing a provincial deemed trust priority in the middle of an insolvency proceeding would undermine the predictability and flexibility of the CCAA regime.

The applicant sought judicial review of a decision by the Director's Delegate of FSCO, which found she was not involved in an 'accident' under the Statutory Accident Benefits Schedule.

The applicant was injured while driving a pocket bike on the property of the bike's owner.

The Divisional Court upheld the Delegate's decision, finding that under the Off-Road Vehicles Act, the pocket bike was not required to be insured while operated on the owner's property.

Consequently, it did not qualify as an 'automobile' at the time of the collision, and the application for judicial review was dismissed.

The appellants appealed from the Court of Appeal's reversal of the CCAA court's decision regarding the priority of pension plan wind-up deficiency claims over court-ordered DIP financing charges.

The majority held that wind-up deficiencies under s. 75(1)(b) of the Pension Benefits Act were subject to a statutory deemed trust under s. 57(4), but that the deemed trust was superseded by the DIP charge by virtue of the doctrine of federal paramountcy.

The majority further held that while the employer-administrator breached its fiduciary duty by failing to ensure the pension plan beneficiaries had adequate notice and representation in the CCAA proceedings, a constructive trust was not an appropriate remedy because the breach did not result in an identifiable asset that it would be unjust for the wrongdoer to retain.

Following a decision in CCAA proceedings, the parties made written submissions on costs.

The court approved an agreement to pay the Retirees' full indemnity legal fees from the Executive Plan fund.

The court declined to make a similar order for the United Steelworkers regarding the Salaried Plan.

The court made no order as to costs for the underlying motions, following conventional CCAA practice.

For the appeal, the Retirees and the USW were awarded partial indemnity costs fixed at $40,000, payable jointly and severally by Sun Indalex and the U.S. Trustee.

Following a successful appeal by the employer regarding the administration of a pension plan, the parties made written submissions on costs.

The pension committee argued that its costs should be paid out of the pension fund on a substantial indemnity basis, relying on traditional trust principles.

The Court of Appeal rejected this argument, adopting the 'pension trust approach' which limits costs from the fund to cases involving the due administration of the trust or claims advanced for the benefit of all beneficiaries.

Finding the litigation to be adversarial, the Court ordered the committee to pay the employer's costs of the appeals on a partial indemnity basis.

The employer appealed a Divisional Court decision that overturned a Financial Services Tribunal ruling regarding the administration of a pension plan.

The Court of Appeal restored the Tribunal's decisions, holding that the employer was entitled to pay most plan expenses from the pension fund and to take contribution holidays using the actuarial surplus for both the defined benefit and defined contribution components of the plan.

The Court also found that while the notice of the conversion option was inadequate, the Superintendent was not required to refuse registration of the amended plan.

Finally, the Court held that the Tribunal lacked jurisdiction to order costs payable from the pension fund.

The appellants, representing members of a salaried pension plan, appealed a decision of the Financial Services Tribunal that upheld the Superintendent's consent to merge their plan with an hourly-paid plan.

The appellants argued the merger would dilute their plan's surplus and that the surplus constituted 'other benefits' protected under s. 81(5) of the Pension Benefits Act.

The Divisional Court held that the Tribunal had jurisdiction to hear the matter and that the appropriate standard of review was reasonableness simpliciter.

On the merits, the Court found that an actuarial surplus in an ongoing defined benefit plan is not an 'other benefit' under s. 81(5), and dismissed the appeal.