Nigel Campbell

Staff of the Ontario Securities Commission alleged that a reporting issuer and seven of its former officers and directors contravened Ontario securities law by making materially misleading disclosures regarding copper production and financial performance, failing to maintain adequate internal controls, and providing inadequate risk disclosure.

The respondents admitted to the contraventions and to conduct contrary to the public interest.

The Commission approved a settlement agreement requiring the corporate respondent to make a $28.5 million voluntary payment and pay $1.5 million in costs, while the individual respondents agreed to pay administrative penalties ranging from $350,000 to $2.45 million, pay $50,000 each in costs, and be subject to director and officer bans.

The Commission found the settlement fell within a range of reasonable outcomes and was in the public interest.

An appeal of a wrongful dismissal action where the trial judge found just cause for termination based on three incidents of misconduct by a Senior Vice-President and Chief Financial Officer.

The incidents involved: (1) failure to disclose a land flip transaction where the controlling shareholder's group profited $6.5 million; (2) failure to disclose warrant redemption profits to independent directors; and (3) involvement in a tax scheme to mislead the Canada Revenue Agency.

The appellant argued the trial judge erred in applying the McKinley test, misinterpreted Advanced Realty and Hodgkinson, and failed to consider condonation.

The Court of Appeal upheld the trial judge's findings, confirming that fiduciaries owe a duty to disclose conflicts of interest and misappropriation of corporate opportunities.

Two former employees of MD Physician Services Inc. and MD Management Limited appealed a trial judgment finding that they breached non-solicitation agreements with their former employer.

The employees left MD in 2013 to join RBC Dominion Securities Inc., a competitor, and immediately began contacting MD's clients from memory to solicit their business.

The appellants argued the non-solicitation clause was ambiguous and unenforceable.

The Court of Appeal upheld the trial judge's decision, finding the clause was clear and reasonable, and that the employees' conduct constituted a breach of the non-solicitation agreement.

Following a successful defence in a wrongful dismissal trial, the defendant sought costs of approximately $750,000.

The plaintiff argued for $500,000.

The court considered the factors under Rule 57.01, noting that while the electronic trial was efficient, both sides engaged in overkill and over-representation.

The court reduced the defendant's claimed fees slightly and awarded costs of $725,651.30 on a partial indemnity basis.

The plaintiffs, MD Physician Services Inc. and MD Management Limited, sued former employees Duane Wisniewski and Joy Sleeth, and their new employer RBC Dominion Securities Inc., for breach of non-solicitation agreements and confidentiality obligations.

The court found the non-solicitation agreements enforceable, rejecting arguments of lack of consideration, non est factum, ambiguity, vagueness, and unreasonableness.

The court also found that Wisniewski and Sleeth breached these agreements by actively soliciting former clients, despite their claims of merely informing them of their new employment.

RBC Dominion Securities Inc. was found vicariously liable for these breaches.

While a technical breach of confidentiality occurred, it was deemed de minimis and not to attract damages.

The trial was limited to liability, with damages to be addressed later.

The plaintiff, a former Senior Vice-President and Chief Financial Officer of Royal Group, Inc., sued for wrongful dismissal, claiming approximately $6.6 million in damages.

The defendant employer argued cause for dismissal based on the plaintiff's involvement in two instances of serious misconduct: the "Vaughan West land flip" and the misappropriation of a "Premdor warrant." Both involved the plaintiff's participation in schemes where senior officers, including himself, made secret profits at the corporation's expense and failed to disclose these conflicts of interest to the independent board of directors.

The court found that the plaintiff, as a fiduciary and senior employee, breached his duties of loyalty, honesty, candour, and fidelity by facilitating the usurpation of corporate opportunities, taking corporate funds without proper authority, and actively participating in deceptive practices, including back-dating documents for tax purposes.

The court dismissed the plaintiff's action, concluding that his conduct constituted just cause for summary dismissal, emphasizing the strictness of fiduciary duties in public corporations.

The appellant, an investment advisor, appealed a trial decision dismissing his claim for additional compensation under a letter agreement.

The trial judge found the agreement ambiguous regarding its application to Capital Markets transactions and relied on the parties' subsequent conduct to conclude it did not apply.

The Court of Appeal dismissed the appeal, holding that while subsequent conduct is not part of the factual matrix, it is admissible to resolve ambiguity.

The trial judge made no extricable error of law in finding ambiguity and properly weighed the appellant's subsequent conduct, which was overwhelmingly consistent with the respondent's interpretation.

The moving party sought leave to appeal a decision dismissing its motion for summary judgment.

The underlying motion judge had found a triable issue regarding whether fraudulent concealment prevented the moving party from relying on the limitations period in the Trustee Act.

The court dismissed the motion for leave to appeal, finding that the moving party failed to establish conflicting case law or an issue of public importance that went beyond the interests of the immediate parties.

The defendant First Associates Investments Inc. moved for summary judgment to dismiss an action brought by the estate trustee of Nancy Wagg, arguing the claim was statute-barred by the two-year limitation period under section 38(3) of the Trustee Act.

The action alleged breach of contract, negligence, and breach of fiduciary duty related to unsuitable investments made by Nancy Wagg's son-in-law, Todd Monaghan, an investment advisor and officer of First Associates.

The court dismissed the motion, finding that while section 38(1) of the Trustee Act applies to claims for pure economic loss, there was a genuine issue requiring a trial regarding the application of the fraudulent concealment doctrine.

Specifically, triable issues existed concerning whether Monaghan's conduct was unconscionable, First Associates' vicarious liability, and whether critical information about the investments was concealed from Nancy Wagg or her subsequent estate trustees.

Following dismissal of an employee’s action alleging multiple breaches of an employment agreement, the employer sought costs of the action.

The employer relied on earlier offers to settle and argued it should receive substantial indemnity costs after the first refused offer.

The court held that elevated costs outside Rule 49.10 require reprehensible or egregious conduct by the opposing party.

Finding no such conduct and noting the action was hard fought but not frivolous, the court declined substantial indemnity costs and instead awarded a reduced amount under Rule 57.01.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

The plaintiff, a successful retail stockbroker, sued his former employer for breach of contract, alleging he was owed a 10% finder's fee on several large corporate finance transactions under an April 11, 2006 agreement.

The court found that the agreement was exclusively a retail document and did not apply to transactions involving the employer's Capital Markets group.

The court also dismissed the plaintiff's claims for negligent overpayment of his assistant, unjust enrichment, bad faith, and entitlement to unvested deferred stock units.

The action was dismissed in its entirety.

The plaintiff appealed a Master's order dismissing its action under Rule 34.15(1) of the Rules of Civil Procedure for its representative's refusal to answer questions during an examination for discovery.

The Divisional Court allowed the appeal, finding that the Master erred in law and fact by concluding that the plaintiff's conduct was an egregious breach that prejudiced the defendants such that a dismissal was warranted.

The court held that the defendants' prejudice could be remedied by ordering the plaintiff's representative to re-attend the examination and answer proper questions, rather than imposing the draconian sanction of dismissing the action.

The plaintiffs brought a motion for certification of a class proceeding and for leave to proceed with statutory claims for misrepresentation under the Securities Act against Celestica Inc. and its former executives.

The plaintiffs alleged misrepresentations regarding a 2005 restructuring, inventory, revenue, and GAAP compliance.

The court granted leave and certified the class action solely with respect to the alleged misrepresentations about the 2005 restructuring, finding a reasonable possibility of success.

Leave and certification were denied for the inventory, revenue, and GAAP claims due to a lack of evidentiary foundation.

The court also declined to certify the common law negligent misrepresentation claim, finding it did not satisfy the preferable procedure criterion.

In three related securities class action appeals, the court reconsidered whether a statutory secondary-market misrepresentation claim under s. 138.3 of the Securities Act is time-barred unless leave is obtained within the s. 138.14 limitation period.

The court overruled Timminco and held that, for purposes of s. 28 of the Class Proceedings Act, 1992, the statutory claim is asserted when the representative plaintiff pleads the statutory cause of action, the supporting facts, and an intention to seek leave within a timely commenced class proceeding.

The court also upheld the motion judge's interpretation of the s. 138.8 leave standard as screening out hopeless claims, while holding that the Green certification decision erred in failing to consider certifying common negligent misrepresentation issues other than reliance.

The plaintiffs' appeal in Green was allowed in part and the defendants' appeals in Silver and Celestica were dismissed.

Enforcement Staff of the Ontario Securities Commission brought a motion to admit into evidence selected excerpts from transcripts of compelled examinations of the respondents conducted pursuant to section 13 of the Securities Act.

The respondents opposed the motion, arguing that the admission of compelled testimony violated the Securities Act, the Evidence Act, the Charter, and principles of procedural fairness.

One respondent also brought a cross-motion seeking a confidentiality order for the motion materials.

The Commission held that compelled testimony is admissible in regulatory proceedings and is not precluded by the Charter or the Evidence Act.

However, to ensure fairness and obtain the best evidence, the Commission directed that Staff may only tender the transcripts at the conclusion of its case for those respondents who do not undertake to testify, with a limited exception for proving allegations of misleading statements.

The Commission also granted the cross-motion, ordering the motion materials to remain confidential while releasing the decision publicly.

Recognition proceedings were brought under the cross‑border insolvency provisions of the Bankruptcy and Insolvency Act concerning a foreign main liquidation proceeding in the Commonwealth of the Bahamas.

Multiple parties asserted competing claims to approximately $4 million in assets held by a Canadian financial institution.

Motions were pending regarding whether a stay of proceedings should be lifted or modified to permit bankruptcy proceedings in Canada or enforcement of claimed interests.

The court held there was insufficient time to fully argue the issues and maintained the existing interim stay and related orders to preserve the status quo pending a full hearing.

The endorsement emphasized that the interim directions were not intended to interfere with the foreign main proceeding.

The defendants brought a motion under Rule 59.06(1) of the Rules of Civil Procedure to amend a previously issued and entered order arising from a Rule 21 motion in a proposed securities class action.

The original order dismissed the defendants’ motion to strike claims under Part XXIII.1 of the Securities Act but failed to reflect the judge’s reasoning that the special circumstances doctrine permitted leave to be granted nunc pro tunc despite the expiry of the statutory limitation period.

The court held that the omission of this conclusion from the formal order was an oversight and that Rule 59.06(1) permits amendment where the order does not accurately express the court’s manifest intention as reflected in the reasons for decision.

The court rejected arguments that the requested amendment was premature or an improper reconsideration of the earlier ruling.

The order was amended to include the finding regarding the special circumstances doctrine.

The defendants brought a motion to strike portions of the plaintiffs' proposed class action statement of claim, arguing that the statutory cause of action under Part XXIII.1 of the Securities Act was statute-barred because the plaintiffs did not obtain leave before the expiry of the three-year limitation period.

The court held that the common law special circumstances doctrine applies to the limitation period in the Securities Act, giving the court jurisdiction to make an order nunc pro tunc granting leave.

The court found special circumstances existed because the defendants had known of the claims since 2007 and suffered no prejudice.

The motion to strike the statutory claims was dismissed, but the common law negligent misrepresentation claim was struck with leave to amend for failing to plead detrimental reliance.

The applicant sought judicial review of an Ontario Securities Commission decision dismissing its application to review an IIROC Hearing Panel's refusal to stay proceedings.

The applicant argued that IIROC lacked jurisdiction and could not provide procedural fairness because it lacked the power to compel non-member witnesses, which would prevent the applicant from making full answer and defence.

The Divisional Court dismissed the application, finding that the Commission reasonably concluded the stay motion was premature, as any prejudice regarding missing evidence is best assessed during the hearing on the merits.