Mark M. Persaud

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 Heidari Creditors, as assignees of the trustee in bankruptcy, sought an order compelling a representative of Sherwood Custom Homes Inc. to be examined under subsection 163(1) of the Bankruptcy and Insolvency Act.

Their theory was that the bankrupt's former spouse's salary at Sherwood might represent funds earned by the bankrupt.

The court dismissed the motion, finding that the creditors failed to establish that Sherwood reasonably had knowledge of the bankrupt's affairs or property, and that the evidence did not reasonably support the theory that the spouse's income represented the bankrupt's earnings.

The applicant brought a motion for an adjournment.

The Divisional Court granted the adjournment request and imposed a timetable agreed upon by the parties.

Due to the inordinate delay in the case and the reasons for it, the court declined to award costs to any party.

The applicant, a registered investment advisor, sought a stay of a Commission decision dismissing his application for a review of two IIROC decisions, pending his appeal to the Divisional Court.

The Commission declined to grant a stay pending the disposition of the appeal, noting that the Divisional Court is better placed to assess the merits of the appeal and control the appeal process.

However, the Commission granted a temporary 60-day stay, subject to strict supervision conditions, to allow the applicant to bring a stay motion before the Divisional Court.

Joseph Debus, an investment advisor, applied for a review of an IIROC panel's decisions finding he engaged in unauthorized and discretionary trading, recommended unsuitable investments, and failed to disclose outside business activities.

He sought to introduce new evidence and argued he received ineffective assistance from his paralegal at the IIROC hearing.

The Ontario Securities Commission dismissed his requests for a third-party summons and an adjournment.

On the merits, the Commission found no miscarriage of justice regarding his representation or IIROC Staff's investigation.

The Commission concluded the IIROC panel made no material errors in law and that the sanctions imposed, including a nine-month suspension and fines, were appropriate.

The application for review was dismissed.

The applicant brought a motion seeking the recusal of the adjudicator on the basis of a reasonable apprehension of bias against him and his counsel.

The applicant alleged bias based on the manner in which the proceeding was conducted, the adjudicator's attitude towards his counsel's health issues, and alleged partiality towards the respondents.

The adjudicator applied the test for reasonable apprehension of bias and found that the applicant failed to meet the high threshold.

The motion for recusal was dismissed.

The applicant sought a 60-day extension to serve his hearing materials and an adjournment of his hearing and review of an IIROC decision to September 2020.

He cited his counsel's health issues, the unavailability of one of his lawyers, and difficulties accessing physical files due to COVID-19 restrictions.

Staff of IIROC and the OSC opposed the request.

The Commission found that while COVID-19 restrictions and the need to await a decision on a summons did not justify the delay, the combination of lead counsel's health issues, the departure of co-counsel, and the applicant's inability to retain new counsel constituted exceptional circumstances.

The Commission granted the 60-day extension for materials and adjourned the hearing to July 2020, balancing the applicant's right to participate with the public interest in timely proceedings.

The Crown appealed a conditional discharge granted to the respondent following a conviction for assault causing bodily harm.

The respondent had repeatedly punched the complainant in the face outside a bar, causing severe injuries including broken orbital bones and a broken nose.

The Superior Court of Justice allowed the appeal, finding the trial judge erred by minimizing the long-lasting effects of the injuries and placing insufficient weight on denunciation and general deterrence.

The court held that a conditional discharge was contrary to the public interest given the brutality of the assault.

The conditional discharge was set aside and a three-month conditional sentence was imposed.

A case conference was held to resolve several procedural issues in an estates action.

The court set a schedule for an upcoming costs hearing and ordered the defendants to answer discovery questions they had improperly taken under advisement, noting that counsel's lack of instructions does not excuse failing to answer proper questions.

The court also set a timetable for the plaintiff's proposed motion to strike a new action commenced by the defendants, deferring issues regarding the deemed undertaking rule and a potential judicial bias motion.

In a supplementary endorsement, the court clarified a statement made in a previous endorsement regarding the defendants' counsel and his law clerk.

The court confirmed that the counsel had not sent his law clerk to appear before the court and that he committed no act of unprofessionalism.

The court noted that the plaintiff decided not to seek costs against the defendants' counsel under Rule 57.07 and encouraged the parties to focus on resolving the issues between the clients.

The plaintiff brought a motion seeking several orders, including the exclusion of parties from examinations for discovery, the return of an insurance policy to the estate, the exclusion of the defendants' daughter from discoveries, and the striking of certain allegations from the defendants' affidavit material.

The court granted all relief sought by the plaintiff, finding compelling evidence to exclude parties from discoveries due to credibility concerns and ordering the return of the insurance policy.

The court also struck scandalous and irrelevant evidence from the defendants' affidavit.

Costs were reserved for later determination.

The court issued case management directions to compel the defendants to comply with previous orders for an accounting and production of documents in an estate litigation matter.

The defendants had repeatedly delayed and failed to comply with orders from 2012.

The court set strict deadlines for affidavits of documents, examinations for discovery, expert reports, and pre-trial conference memoranda, emphasizing that there would be no further delays.

The court also warned of potential striking of pleadings if non-compliance continued.

The appellant, an independent health facility, appealed a Small Claims Court decision ordering it to pay fees to the College of Physicians and Surgeons of Ontario for practice assessments.

The appellant argued the College lacked statutory authority to charge these fees.

The Divisional Court dismissed the appeal, finding that under the integrated legislative scheme of the Independent Health Facilities Act and the Regulated Health Professions Act, the College had the authority to enact by-laws charging fees to non-members for assessments it was required to conduct.

The appellant appealed a Superior Court decision upholding a committal order made at a preliminary inquiry.

The Court of Appeal dismissed the appeal, finding that the arguments advanced confused the function of a trial judge with that of a preliminary inquiry judge.

The Superior Court judge properly limited his review to whether the totality of the evidence provided a basis for the committal order.

The applicant sought certiorari to quash a committal for trial following a preliminary inquiry on a charge of assisting an offender contrary to s. 463(a) of the Criminal Code.

The reviewing court considered whether there was at least a scintilla of evidence on each essential element of the offence, including knowledge of the underlying offence, assistance to the principal offender, and specific intent to help the offender escape liability.

The applicant argued the circumstantial evidence supporting specific intent permitted innocent explanations and that the preliminary inquiry judge failed to properly apply the Shephard standard.

The court held that the circumstantial evidence could reasonably support an inference of the required intent and that the committing judge correctly applied the test of whether a properly instructed jury could convict.

The application to quash the committal was dismissed.

The appellant, a residential tenant, sued her landlord in Small Claims Court for negligence after her unit was burglarized via an adjacent unlocked unit.

The Deputy Judge dismissed the action, finding the essential character of the dispute fell within the exclusive jurisdiction of the Landlord and Tenant Board.

On appeal, the Divisional Court upheld the decision, confirming that the claim essentially alleged a breach of the landlord's statutory obligations regarding safety and quiet enjoyment.

The court also refused to transfer the matter to the Superior Court, as the one-year limitation period under the Residential Tenancies Act had already expired when the Small Claims action was commenced.

The Association of Justices of the Peace of Ontario brought an application seeking a declaration regarding the appropriate salary indexing adjustment for the 2008-2009 salary year.

The court had previously adjourned the application to allow the government time to respond to the Remuneration Commission's recommendation.

After the government provided its response, the court dismissed the application, holding that the appropriate remedy was now judicial review of the government's decision based on the standard of simple rationality.

The appellant law firm appealed an order allowing the respondent client to assess a paid account.

The Court of Appeal dismissed the appeal, confirming that under s. 3 of the Solicitors Act, a client may apply for the assessment of a delivered account upon requisition from the registrar within 30 days of delivery, regardless of whether the account has been paid.

The court clarified that ss. 3 and 11 of the Act can both apply to paid accounts, with the 30-day period serving as the dividing line for when an assessment can be directed by the Registrar.