Mark Edward Bailey

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.

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.

The moving party, David Sharpe, sought a stay of an earlier Tribunal decision that dismissed his request to keep certain portions of the adjudicative record confidential.

He sought the stay pending his application for judicial review of that decision.

The Tribunal dismissed the motion, finding it lacked jurisdiction under the Statutory Powers Procedure Act to stay a final decision on confidentiality.

The Tribunal further held that even if it had jurisdiction, it would not grant the stay because Sharpe failed to demonstrate irreparable harm and the balance of convenience favoured the public interest in the transparency of Tribunal proceedings.

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.

The respondent Alli brought a motion for a stay of proceedings, alleging that Staff's former outside counsel was in a conflict of interest and had concocted a fraud allegation to bully him into a settlement.

Staff brought a motion to dismiss Alli's motion on a preliminary basis.

The Capital Markets Tribunal granted Staff's motion and dismissed the request for a stay, finding that Alli had significantly delayed bringing the motion without reasonable explanation, the issues raised were irrelevant to the proceeding, and he failed to meet the high bar for a stay.

The Tribunal also dismissed Alli's request for declaratory relief and granted Staff's request to strike portions of Alli's affidavit and closing submissions that improperly disclosed privileged and irrelevant information.

On the eve of a complex 40-day merits hearing, a self-represented respondent requested a 30-day adjournment, citing a recent loss of counsel, the need to retain new counsel, and medical issues.

The Capital Markets Tribunal dismissed the request, finding that the respondent failed to establish exceptional circumstances as required by Rule 29(1) of the Rules of Procedure and Forms.

The Tribunal noted the lack of explanation for the loss of counsel, the absence of medical evidence, and the significant disruption and costs an adjournment would cause to the multiple parties and witnesses involved.

The applicant sought an order to keep portions of the adjudicative records and written submissions confidential in a proceeding before the Capital Markets Tribunal.

The records contained compelled evidence from an investigation that had already been made public in a related receivership application.

The Tribunal dismissed the request, finding that the applicant failed to meet the high bar required to depart from the open court principle, especially given that the material had been publicly available for over a year.

Staff of the Ontario Securities Commission sought to extend a temporary cease trade order against Trilogy Mortgage Group Inc. until the conclusion of a related proceeding.

The Commission noted that a majority of the panel in the related proceeding had found that the respondent engaged in the business of trading securities without being registered.

Finding it in the public interest, the Commission extended the temporary order against the respondent until the related proceeding concludes.

Staff of the Ontario Securities Commission alleged that the respondents raised almost $80 million from hundreds of investors through pooled mortgage investment funds without being registered, without filing a prospectus, and by perpetrating a fraud.

The majority of the Commission found that all respondent entities and the three individual principals engaged in the business of trading without registration, contrary to s. 25(1) of the Securities Act.

The majority also found that all respondents except Trilogy engaged in illegal distributions contrary to s. 53(1).

Furthermore, the majority concluded that Paramount, the Silverfern entities, and the principals perpetrated a fraud contrary to s. 126.1(1)(b) by misrepresenting the use of investor funds, acquiring undisclosed ownership interests in mortgage projects, and misusing a pre-paid account.

One commissioner dissented in part, finding that only one principal (Ruttenberg) contravened the Act.

In an enforcement proceeding, the respondents objected to the Commission's intention to conduct the merits hearing by videoconference due to the COVID-19 pandemic.

The respondents argued that a videoconference hearing would be unfair, slower, more expensive, and inadequate for assessing credibility.

The Commission held that proceeding by videoconference is consistent with the objective of conducting proceedings expeditiously and cost-effectively.

The respondents failed to establish that an electronic hearing would cause them significant prejudice under section 5.2(2) of the Statutory Powers Procedure Act.

The Commission ordered the merits hearing to proceed by videoconference.

During a merits hearing interrupted by the COVID-19 pandemic, Staff of the Ontario Securities Commission sought to admit the expert opinion evidence of a mortgage underwriting expert in writing.

The respondents did not challenge the expert's qualifications.

The Commission admitted the expert evidence, finding it relevant and necessary to explain industry practices and assess the respondents' policies against those practices, but excluded portions of the report that went beyond the Commission's need for expert assistance, such as interpreting specific fund documents or assessing the ultimate use of funds.

The merits hearing in this proceeding was interrupted by the COVID-19 pandemic.

The Commission suspended in-person hearings and invited submissions on how to proceed.

Staff proposed submitting the remainder of its evidence in writing, while two respondents requested an adjournment.

The Commission declined to adjourn the hearing, finding that proceeding in writing was permissible, efficient, and caused no prejudice to the respondents.

The Commission ordered Staff to file its remaining evidence in writing, after which the respondents could request cross-examination by videoconference.

Staff of the Ontario Securities Commission brought a motion to amend the Amended Statement of Allegations to add a request for a disgorgement order against the individual respondents, and to adjourn the commencement of the merits hearing to allow time to serve one of the respondents.

The Commission found that Staff's inadvertent omission of the disgorgement request did not constitute exceptional circumstances justifying a lengthy adjournment.

However, because Staff committed to completing its case in six days, the Commission was able to adjust the hearing schedule to allow the required notice period for the amendment motion without delaying the conclusion of the merits hearing or disrupting the scheduled testimony of a participating respondent.

The applicants requested a review of a Financial Services Tribunal decision that ordered the revocation of their mortgage broker and brokerage licences for providing false documents to a bank.

The Tribunal denied the request for review, finding that the applicants failed to meet the threshold test of providing new evidence or arguments not reasonably available at the time of the original hearing, and were merely attempting to reargue their case.

The Superintendent of Financial Services proposed to revoke the mortgage brokerage licence of MSF Group Inc. and the mortgage broker licence of Lilia Reznik for providing false income and employment documents to Scotiabank in support of five mortgage applications.

The Financial Services Tribunal found that the applicants knowingly provided false documents, contravening sections 43(1) and 43(2) of the Mortgage Brokerages, Lenders and Administrators Act, 2006.

The Tribunal concluded that the applicants' past conduct afforded reasonable grounds for belief that they would not deal in mortgages in accordance with the law and with integrity and honesty, rendering them unsuitable to be licensed.

The Tribunal ordered the revocation of both licences.

The applicant sought urgent judicial review of an arbitrator's interim order relieving his counsel from acting in an upcoming Financial Services Commission of Ontario arbitration due to a breakdown in the solicitor-client relationship.

The Divisional Court dismissed the application as premature, finding that the applicant had not exhausted internal appeal procedures under the Insurance Act and the Dispute Resolution Practice Code.

The court found no exceptional circumstances or prospect of real unfairness that would justify fragmenting the proceedings and intervening at an interim stage.

The Superintendent of Financial Services issued an interim order suspending the applicants' mortgage brokerage and broker licences pending a proposal to revoke them.

The applicants sought to bring a motion to lift or stay the interim order.

The Superintendent raised a jurisdictional objection.

The Financial Services Tribunal held that it lacked the express or implied statutory authority under the Mortgage Brokerages, Lenders and Administrators Act, 2006 or the Financial Services Commission of Ontario Act, 1997 to lift or stay an interim suspension order pending a hearing on the merits.

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.