Melissa J. MacKewn

The appellant appealed the dismissal of her motion to compel answers and document production regarding communications between the respondent and its counsel.

The appellant alleged the respondent used false evidence to procure her prosecution by IIROC, arguing the fraud/crime exception to solicitor-client privilege applied.

The Divisional Court dismissed the appeal, finding the appellant failed to establish a prima facie case that the communications were made to facilitate a crime or civil wrong, as the false information had no bearing on the regulatory investigation.

The applicants sought a stay of a Director's Decision that permanently suspended their registration as an exempt market dealer and dealing representative, pending a hearing and review by the Commission.

Applying the RJR-MacDonald test, the Commission found there was a serious issue to be tried, the applicants would suffer irreparable harm to their business and livelihood without a stay, and the balance of convenience favoured granting a conditional stay.

The Commission ordered a stay subject to conditions requiring the applicants to post the Director's Decision on their website and provide it to clients.

The Commission also ordered the removal of an Investor Alert from its website but declined to order a retraction.

The appellants brought a motion to stay Ontario Securities Commission (OSC) proceedings pending the appeal of an OSC decision refusing to stay the proceedings for reasonable apprehension of bias.

The court found that while issue estoppel did not entirely preclude the motion due to changed circumstances, the appellants failed to establish irreparable harm.

The court also found that the balance of convenience favoured allowing the OSC proceedings to conclude before addressing the bias issue on appeal.

The motion for a stay was dismissed.