Michael Lonergan Byers

The plaintiffs brought an urgent motion to extend the time permitted for cross-examinations of the defendants' affiants on pending anti-SLAPP motions.

The defendants had filed 14 affidavits across four separate motions.

The court found that limiting the plaintiffs to the statutory seven hours would prevent meaningful cross-examination and that it was in the interests of justice to extend the time to 15 hours.

The appellant appealed the dismissal of his action against an investigator appointed by the Chartered Professional Accountants of Ontario.

The motion judge had found the lawsuit was a collateral attack on the Discipline Committee's decision to revoke the appellant's designation, and was an abuse of process.

The Court of Appeal upheld the decision, finding no error in the motion judge's conclusions or in his discretionary decision to deny an adjournment.

The Appellant, a revoked member of CPA Ontario, brought a motion to introduce fresh evidence at his upcoming appeal hearing.

The proposed evidence included a handwriting expert report, medical records, a hearing transcript, and financial statements.

The Appeal Committee applied the test for fresh evidence and dismissed the motion for the majority of the documents, finding they were either available at the time of the reconsideration hearing or would not have affected the outcome.

However, the Committee allowed the admission of the Appellant's CRA documents for 2022 and 2023, as they may be relevant to the determination of costs.

The Professional Conduct Committee of the CPAO sought judicial review of an internal Appeal Decision that ordered the readmission of a former accountant whose license was revoked following criminal convictions for fraud.

The Divisional Court allowed the application, finding that the Appeal Panel failed to conduct a proper reasonableness review of the initial Reconsideration Decision.

Instead of deferring to the Reconsideration Panel's assessment of the applicant's remorse and rehabilitation, the Appeal Panel impermissibly reweighed the evidence.

Furthermore, the Appeal Panel failed to consider whether readmission was consistent with maintaining public trust in the profession.

The Appeal Decision was set aside and the Reconsideration Decision denying readmission was restored.

Following the release of the Court's decision on the appeal, submissions were received regarding the apportionment of costs.

The Court fixed costs of the appeal payable to the Receiver, the respondent 100 Ontario Inc., and the respondent Issam A. Saad, each in the amount of $15,000.

The appellant entered into an Agreement of Purchase and Sale with a court-appointed receiver to purchase real estate.

The receiver brought a motion for approval and vesting.

However, late-breaking offers emerged, including one 37% higher than the appellant's offer.

The motion judge declined to approve the sale and instead ordered a six-day extension of the bidding process.

The appellant appealed, arguing the motion judge misapplied the principles from Royal Bank of Canada v. Soundair Corp. The Court of Appeal dismissed the appeal, finding the motion judge properly exercised discretion in reopening the auction process given the magnitude of the late offer and the receiver's alternative recommendation.

The Ontario Securities Commission sought approval of a settlement agreement with the respondents regarding allegations of illegal insider trading and tipping.

The respondent Huynh, a VP of Finance at a reporting issuer, learned of an impending acquisition and tipped his wife, Pham.

They used an intermediary to purchase call options, realizing a profit of over US$311,000.

The Tribunal approved the settlement, which included trading bans, director/officer bans, an administrative penalty of $325,000, disgorgement of $270,000, and costs of $50,000, finding the terms reasonable and in the public interest.

The plaintiff, a former member of the Chartered Professional Accountants of Ontario, brought an action against a senior investigator of the regulatory body regarding her conduct during a professional discipline investigation that resulted in the revocation of his membership.

The defendant moved to dismiss the action.

The court found that the action was an abuse of process as it attempted to relitigate matters that were or could have been raised before the Discipline Committee.

The court also found the claim to be vexatious and frivolous, as the defendant was merely an investigator and not the decision-maker.

The action was dismissed without leave to amend, and costs were awarded to the defendant.

The plaintiff, CPOS Inc., brought a motion for an injunction to compel the defendant, Brandon Hwon Munn Fong, to return and have confidential information professionally wiped from his electronic devices by a third party.

CPOS abandoned its claim of improper solicitation.

The court ordered Fong to describe and delete the documents himself, rejecting CPOS's request for third-party wiping.

This decision addresses the costs of that motion.

Fong sought substantial indemnity costs, arguing CPOS's motion was heavy-handed and unsuccessful on the key issue.

CPOS argued its conduct was not improper and the relief granted was more robust than Fong's offers.

The court found Fong substantially successful on the main issue of the wiping method.

Considering factors under Rule 57, including success, claims, complexity, and offers to settle, the court ordered CPOS to pay Fong costs on a liberal partial indemnity basis.

The Applicant, a dissenting shareholder, sought costs on a full indemnity basis after successfully obtaining an order fixing the fair value of his shares.

The court had previously ordered the Respondent to pay $63,000 for the shares.

The Applicant argued that the Respondent failed to comply with s. 185(15) of the Ontario Business Corporations Act (OBCA) by offering zero for the shares, which would trigger full indemnity costs under s. 185(21).

The court found that the Respondent's offer of zero, accompanied by an explanation, did comply with s. 185(15) and therefore, the costs consequences of s. 185(21) were not triggered.

The court awarded costs on a partial indemnity scale, fixing them at $99,951.75, after considering the factors in Rule 57.01 of the Rules of Civil Procedure, the complexity of the case, and the proportionality of the costs claimed relative to the amount at issue.

The applicant, a dissenting shareholder, sought a declaration that he owned 900,000 shares in a junior mining company prior to its amalgamation, and an order fixing the fair value of those shares.

The respondent argued the applicant's shareholdings were limited by an Anti-Dilution Agreement.

The court found the applicant was the registered holder of 900,000 shares and had a statutory right to dissent under s. 185 of the OBCA, unconstrained by the contractual agreement for the purpose of valuation.

The court fixed the fair value of the shares at $0.07 per share based on expert evidence of comparable junior mining companies.

The applicant's claim for oppression was dismissed.

Staff of the Ontario Securities Commission alleged that the respondents contravened the Securities Act by making misleading statements in offering memoranda and misappropriating investor funds.

The Settling Respondents (Canada Cannabis Corporation, Canadian Cannabis Corporation, and Benjamin Ward) entered into a settlement agreement admitting to breaches of the Act.

The Capital Markets Tribunal approved the settlement, finding it in the public interest.

The sanctions included permanent market bans for the corporate respondents, a six-year director and officer ban for Ward, and a $10,000 costs order against Ward.

The moving party, Rogers Communications Canada Inc., sought to set aside previous orders dismissing its motion for security for costs against the responding party, Active Security and Cable Inc., on the basis of fraud or newly discovered facts under Rule 59.06(2)(a).

Rogers alleged that an erroneous payment of over $876,000 and other newly discovered facts regarding Active Security's financial status warranted setting aside the orders.

The court dismissed the motion, finding that the new evidence would not have likely altered the original decision, which relied primarily on a large CRA debt.

Furthermore, Rogers failed to prove fraudulent concealment and had made a tactical decision not to raise the new evidence during the appeal process.

The respondent Silvio Serrano brought a motion and application seeking disclosure of a Confidential Order and related reasons that authorized redactions to transcripts of a co-respondent's compelled interview.

Prior to the hearing on the merits, the term of the Commissioner who had presided over preliminary procedural matters expired, and a new panel was assigned.

Serrano brought a motion challenging the new panel's jurisdiction, arguing the original Commissioner's term should be extended under s. 4.3 of the SPPA or the matter heard de novo.

The Commission dismissed the panel composition motion, finding the original Commissioner only made procedural rulings and did not participate in the merits, so s. 4.3 did not apply and procedural fairness was not breached.

On the disclosure motion, the Commission ordered that the respondents be provided with redacted versions of the Confidential Order and Reasons, as well as information regarding the legal basis for the redactions, balancing the need for procedural fairness with the interests protected by the confidentiality.

The plaintiff sought partial indemnity costs of $290,704 following a successful bifurcated certification motion in a class action against the defendant.

The defendant argued the costs should be reduced by 50% because the plaintiff was successful in certifying the common law negligence claim but unsuccessful in certifying the statutory misrepresentation claim.

The court rejected the defendant's argument, finding that the plaintiff was the successful party in a complex, hard-fought motion and that divided success on specific claims does not necessarily warrant a reduction in costs.

The plaintiff was awarded the full amount claimed.

In an enforcement proceeding, the respondent Serrano brought a motion seeking disclosure of a Confidential Order and related reasons that redacted portions of a co-respondent's compelled interview transcripts.

Staff argued they were legally prohibited from identifying information relating to the Confidential Order and proposed an ex parte, in camera hearing to make submissions.

The Commission held that it had the inherent authority to control its own procedure and ordered a confidential phase of the hearing.

To address the inherent fairness concerns of excluding the respondents, the Commission appointed an amicus curiae to represent the interests of justice during the confidential phase.

The moving parties brought a motion for leave to appeal an order dated March 17, 2020, and to stay an order dated February 1, 2021.

The Divisional Court dismissed the motion in a brief endorsement.

Costs were awarded to the responding party in the fixed amount of $2,500.

The plaintiff brought a motion to certify a class action against the manager of an exchange-traded fund (ETF) that suffered catastrophic losses following a spike in market volatility.

The plaintiff advanced claims in common law negligence and statutory misrepresentation under s. 130 of the Securities Act.

The court certified the common law negligence claim, finding it met all certification criteria.

However, the court refused to certify the s. 130 claim because the plaintiff could not satisfy the identifiable class criterion, as it was impossible to prove which investors purchased 'Creation Units' directly from the manager versus units on the secondary market.

The plaintiff, a debentureholder, sought to bring a class action for oppression against certain shareholders, directors, and officers of Discovery Air Inc. The defendants argued the plaintiff lacked standing due to a 'no-action clause' in the trust indenture, which they claimed required trustee authority or satisfaction of specific preconditions.

The court found that the trust indenture, when read holistically, did not preclude the plaintiff's direct action.

Alternatively, the court determined that the plaintiff had met the preconditions, including the 25% debentureholder support and a reasonable offer of indemnity, despite the trustee's commercially unreasonable demands.

The plaintiff's motion was granted, allowing the oppression action to proceed.

The appellants, an unsuccessful bidder and a dissenting shareholder, sought a stay of an order approving a plan of arrangement by which NordStar Capital LP would acquire Torstar Corporation, pending their appeal.

The Divisional Court dismissed the motion for a stay, finding that the appellants failed to establish a serious issue for appeal, irreparable harm, or that the balance of convenience favoured a stay.

The court noted that the appellants lacked standing, the hearing process was fair, and the board acted reasonably in rejecting the unsolicited offer in light of hard lock-up agreements.