Court File and Parties
CITATION: Azeff v. Ontario Securities Commission, 2016 ONSC 1270
DIVISIONAL COURT FILE NO.: 480/15 DATE: 20160219
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, RADY AND C. HORKINS JJ.
BETWEEN:
PAUL AZEFF and KORIN BOBROW Moving Parties (Appellants in Appeal)
– and –
ONTARIO SECURITIES COMMISSION Respondent (Respondent in Appeal)
Bruce O’Toole and Clarke Tedesco, for the Moving Parties (Appellants in Appeal)
Anna Perschy and Jennifer Lynch, for the Respondent (Respondent in Appeal)
HEARD at Toronto: February 19, 2016
Oral Reasons for Judgment
SWINTON J. (ORALLY)
[1] There was no proper motion for the introduction of fresh evidence brought by the appellants. However, they have filed new evidence on the motion to vary, namely, the Azeff affidavit of December 7, 2015, paras. 10-19 and the Azeff affidavit dated January 27, 2016, paras. 23-49 and exhibits I-T. These relate to steps that IIROC has taken and is taking with respect to the appellants’ conditional registration, which allows them to work under supervision with a firm in Quebec.
[2] In our view, this material does not meet the test for fresh evidence, and it is struck. The test for fresh evidence is set out in R. v. Palmer, [1981] 1 S.C.R. 759 at p. 13 (Quicklaw). While the evidence is new, arising after the hearing before Kruzick J. (“the motions judge”) it does not bear upon a decisive or potentially decisive issue in the motion before us. Nor could it reasonably be expected to have affected the result of the stay motion when taken with other evidence before the motions judge.
[3] The motion before us today requires us to determine if the motions judge erred in refusing to order a stay of an order of the Ontario Securities Commission which, among other things, prohibits the appellants from trading in Ontario. The fact that IIROC has undertaken a proceeding in Quebec to determine whether the appellants’ conditional registration should continue is not relevant to our task today. Moreover, the evidence does not meet the reliability criterion. We cannot rely on the audit file from IIROC to conclude that there is no basis for concern about supervision of the appellants. The information from that file needs to be explained and tested. The appropriate forum for that is the IIROC hearing, which has already been held.
[4] Accordingly, the new evidence is struck.
[5] I have endorsed the Supplementary Motion Record, “Paras. 10-19 of the Azeff affidavit of December 7, 2015 and paras. 23-49 and exhibits I-T of the Azeff affidavit of January 27, 2016 are struck.”
___________________________ SWINTON J.
RADY J.
C. HORKINS J.
Date of Reasons for Judgment: February 19, 2016
Date of Release: March 1, 2016
CITATION: Azeff v. Ontario Securities Commission, 2016 ONSC 1270
DIVISIONAL COURT FILE NO.: 480/15 DATE: 20160219
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, RADY AND C. HORKINS JJ.
BETWEEN:
PAUL AZEFF and KORIN BOBROW Moving Parties (Appellants in Appeal)
– and –
ONTARIO SECURITIES COMMISSION Respondent (Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: February 19, 2016
Date of Release: March 1, 2016