Peter C. Wardle

In a proposed securities class action alleging misrepresentations in the primary and secondary markets, the plaintiffs sought an order compelling defendants to deliver statements of defence and requested that the certification motion be heard together with a leave motion under s. 138.8 of the Securities Act.

The defendants opposed delivering defences before certification and sought a sequence of motions beginning with the leave motion, followed by Rule 21 motions and then certification.

The court held that pleadings should generally be completed before certification and that ordering the delivery of a statement of defence was not contrary to law or due process.

However, the court limited the requirement to defendants who filed affidavits under s. 138.8(2) of the Securities Act, while permitting other defendants to plead voluntarily without losing the ability to bring Rule 21 motions.

The court further ordered that the leave motion and certification motion be heard together to avoid delay, inefficiency, and serial appeals.

The defendants, lawyers and a law firm, sought leave to appeal a motion judge's refusal to strike paragraphs in a Statement of Claim.

The plaintiffs, victims of a Ponzi scheme, sued the defendants for negligence based on statements made during an Ontario Securities Commission investigation.

The defendants argued the statements were protected by absolute privilege.

The Divisional Court granted leave to appeal, finding there was good reason to doubt the correctness of the motion judge's decision to leave the issue of absolute privilege to the trial judge, and that the application of absolute privilege is a matter of significant importance.

The appellant, a former employee of a Toronto Stock Exchange (TSE) member, appealed a decision of the Ontario Securities Commission (OSC) which upheld a ruling by Market Regulation Services Inc. (RS).

The OSC found that the Universal Market Integrity Rules (UMIR) were enforceable against the appellant for conduct that occurred during his employment, despite his subsequent resignation.

The Divisional Court dismissed the appeal, finding it reasonable for the OSC to conclude that the TSE validly adopted the UMIR and that RS had jurisdiction to discipline former employees for misconduct committed while they were employed by a TSE member.

The appellants appealed a summary judgment enforcing a guarantee and mortgage given as security for legal fees exceeding $350,000.

The appellants had admitted signing the security documents after receiving independent legal advice.

The Court of Appeal found no error in the motion judge's conclusion that there was no genuine issue for trial, noting that an outstanding claim against the law firm was not a defence to the enforcement of the guarantee and mortgage.

The appeal was dismissed.

The moving party sought to set aside a Registrar's order dismissing his appeal for delay.

The underlying appeal concerned an assessment of unpaid legal fees owed to the responding party.

The Court of Appeal dismissed the motion, finding that the moving party failed to provide a satisfactory explanation for the delay after retaining counsel, failed to perfect the appeal within an agreed-upon extension, and took no steps to perfect the appeal in the months following the dismissal.

David Berry, a former employee of Scotia Capital Inc., applied for a hearing and review of a decision by a hearing panel of Market Regulation Services Inc. (RS) that dismissed his motion to stay an RS proceeding against him.

Berry argued that the Universal Market Integrity Rules (UMIR) were not validly adopted by the TSX and that RS lacked jurisdiction over him as a former employee.

The Ontario Securities Commission dismissed the application, finding that UMIR are rules of RS, approved by the Commission, and enforceable against TSX Participants and their employees.

The Commission also held that the TSX Act provides the basis for RS's jurisdiction to proceed against Berry as a former employee.

The applicants sought leave to appeal a decision adding two solicitors and their law firms as intervening parties in a complex land transaction dispute.

The disputing parties had each initiated separate actions against the same lawyers for negligence.

The court found no conflicting case law regarding Rule 13 of the Rules of Civil Procedure in the context of private litigation, noting that the benchmark of caution applies but the need to avoid multiplicity of proceedings justified the intervention.

The motion for leave to appeal was dismissed.

The Requesting Parties sought a hearing and review by the Ontario Securities Commission of the TSX's filing of amendments to the Universal Market Integrity Rules (UMIR) and the Director's acceptance of that filing.

Market Regulation Services Inc. (RS) brought a motion to quash the request, arguing it was moot, premature, and that the RS Hearing Panel had jurisdiction to decide the issues in the first instance.

The Commission held that there was no reviewable decision under sections 8 or 21.7 of the Securities Act, though it retained overriding supervisory jurisdiction under section 21(5).

The Commission declined to exercise its discretion to hear the matter, finding that the application was premature and would unduly fragment the ongoing RS disciplinary proceeding.

The Commission remitted the matter back to the RS Hearing Panel to determine the validity of the UMIR amendments.

Following a successful appeal that allowed the plaintiff's claim to proceed to trial, the parties agreed on costs of $44,000 but disputed the timing of payment.

The plaintiff, an impecunious litigant represented on a pro bono basis, sought costs payable forthwith.

The defendant argued costs should be in the cause or paid into court as security.

The Court of Appeal ordered the costs to be paid forthwith, noting that the appeal costs were stand-alone and that ordering costs payable forthwith assists impecunious litigants and encourages lawyers to accept pro bono retainers.

The appellant was wrongfully charged with second-degree murder based on an autopsy performed by the respondent pathologist.

After the charges were withdrawn, the appellant sued the respondent for negligent investigation and misfeasance in public office.

The respondent successfully moved at the Divisional Court to strike the claims based on absolute witness immunity.

The Court of Appeal allowed the appeal, holding that the claims related to the respondent's role as a public official investigating a suspicious death under the Coroners Act, not merely his testimony.

The Court found that the scope of witness immunity in this context is unsettled law and must be determined at trial on a full factual record.

The plaintiff was charged with the second-degree murder of her daughter based on an autopsy report by the defendant forensic pathologist, which concluded the cause of death was multiple stab wounds.

After a second autopsy revealed the wounds were likely caused by dog bites, the charges were withdrawn.

The plaintiff sued the pathologist for negligence, bad faith, and misfeasance in public office.

The pathologist appealed a motion judge's refusal to strike the claim.

The Divisional Court allowed the appeal, holding that the witness immunity rule applied to the pathologist's autopsy report and testimony at the preliminary inquiry, rendering him immune from civil suit.

The appellants appealed a trial judgment finding that their former law firm did not breach its fiduciary duty.

The appellants argued the firm had conflicts of interest due to its retainer with Ernst & Young Inc. and its relationship with two National Trust directors, and that the firm failed to provide zealous representation.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellants were aware of and agreed to the conditions of the retainer, and that the firm did not fail to act in the clients' best interests.

The court also upheld the judgment against the individual appellants, as the retainer extended to all defendants.

Costs of $15,000 were awarded to the respondent.

The appellants appealed a motion judge's decision striking their claims for conspiracy, breach of fiduciary duty, and breach of trust, and refusing leave to amend.

The Court of Appeal agreed that the pleadings lacked the required particularity and were deficient.

However, the Court found the motion judge erred in refusing leave to amend, as the pleading did not contain a radical defect incapable of being cured.

The appeal was allowed in part to grant leave to amend those specific claims, while a motion to introduce fresh evidence was dismissed.

The respondent moved to quash an appeal and a motion for leave to appeal from an order granting interim relief in an oppression action under the Canada Business Corporations Act.

The Court of Appeal held that the order was interlocutory, meaning leave to appeal was required.

The Court further held that under s. 249 of the CBCA, appeals from interlocutory orders lie to the Court of Appeal, not the Divisional Court.

The motion to quash the appeal was granted, but the motion to quash the motion for leave to appeal was dismissed.

The Court of Appeal issued a costs endorsement following an appeal.

The court made no order as to the costs of the motion before the motion judge, as no submissions were made and the issue was not raised at the Divisional Court.

The Divisional Court's costs order was maintained.

The court fixed the costs of the appeal at $10,000 each for the MFP respondents and the Bondy Riley respondents, inclusive of disbursements and GST.

The appellants commissioned an investigative report in preparation for a fraud action.

A senior official mistakenly believed a former lawyer for the appellants was still part of their legal team and sent him a copy of the report to review as a potential witness.

The appellants later added the lawyer's former firm as a defendant in the action without first retrieving the report.

When the appellants demanded the return of the report claiming litigation privilege, the lawyer refused.

The Court of Appeal held that while the initial disclosure did not waive privilege against the adversaries, the appellants lost the right to assert privilege over the document in the lawyer's hands once they sued his firm without first demanding its return.

The Ontario Securities Commission approved a settlement agreement concerning the respondents' involvement in an 'overtrade' of Bioscrypt Inc. shares.

Paradigm Capital Inc., acting as an agent for a private placement, facilitated secondary market trades for a mutual fund manager who had been solicited for the private placement.

This resulted in shares being sold by persons with knowledge of an undisclosed material fact to persons without such knowledge.

The Commission found this conduct contrary to the public interest, reprimanded the respondents, imposed trading restrictions, and ordered settlement payments and costs.

The appellants appealed an order of Justice Douglas Coo.

The Court of Appeal found the appeal devoid of merit, agreed with the motion judge's reasons, and dismissed the appeal with costs awarded to the respondents.

The appellant created a calendar and sold advertising space to pharmaceutical companies.

The respondent, a trade association, directed its members not to advertise in the calendar, claiming it violated their Code of Marketing Practices.

This direction destroyed the appellant's business.

The appellant sued for intentional interference with economic relations.

The trial judge found the respondent's initial letter was tortious but cured by a subsequent legitimate ruling.

The Court of Appeal allowed the appeal, finding the respondent had no authority under its Code to prohibit members from advertising in third-party products.

The Court held the unauthorized ruling constituted unlawful means, satisfying the elements of the tort of intentional interference with economic relations, and directed a reference on damages.