Randy Bennett

The appellant, a licensed standardbred trainer, appealed a $5,000 fine and 365-day suspension imposed after a horse he trained tested positive for caffeine post-race.

The appellant argued that he relied on veterinary advice and that the trainer responsibility rule should be treated as a strict liability offence, allowing for a due diligence defence.

The Ontario Racing Commission dismissed the appeal, holding that the trainer responsibility rule is an absolute liability offence necessary to protect the integrity of racing.

Furthermore, the Commission found that even if strict liability applied, the appellant failed to establish due diligence due to gaps in evidence regarding the horse's care and security prior to the race.

The appellants appealed a summary judgment order dismissing their claim against the respondent for knowing assistance in breach of fiduciary duty.

The dispute arose from the sale of the appellants' shares in a family-owned shopping mall to the remaining family members, who then sold a 50% interest to the respondent at a higher valuation.

The Court of Appeal upheld the motion judge's finding that there was no evidence the respondent had actual knowledge of the alleged fraudulent and dishonest conduct or breach of fiduciary duties towards the appellants.

The appellant, a standardbred licensee and trainer, appealed a ruling that declared his horse ineligible to race.

The horse was properly entered but missed in error by the race office.

Because the field was full and it was an overnight event, the judges declared the horse ineligible pursuant to Rule 17.15(a)(i) of the Rules of Standardbred Racing.

The Ontario Racing Commission denied the appeal, finding the rule was properly applied, but ordered that the appellant receive a $300 hitching fee from the purse account and referred the race office's error back to the judges for appropriate action.

The appellants, owners and trainers of standardbred horses, appealed a decision by the Program Administrator to open a rescheduled Ontario Sires Stakes event to all eligible horses.

The original event was cancelled due to extreme heat.

The Ontario Racing Commission allowed the appeal, ruling that because the event was rescheduled rather than cancelled, it should only be open to horses that were entered when the original box closed.

The Commission ordered a redrawing of post positions to allow horses to re-qualify if necessary.

The plaintiff sued for damages after a crane it purchased was destroyed in a fire.

The plaintiff mistakenly named the Canadian distributor instead of the Austrian manufacturer.

After the limitation period expired, the plaintiff successfully moved before a Master to correct the misnomer and substitute the manufacturer as a defendant.

The manufacturer and the Canadian distributor appealed the Master's order.

The Divisional Court dismissed the appeal, finding it was reasonably open to the Master to conclude that the 'litigating finger' pointed at the manufacturer and that there was no prejudice in allowing the correction.

The licensee appealed a one-year suspension and $5,000 fine imposed by the Judges after his trained horse tested positive for the Class II drug Reserpine.

At the hearing, the parties presented a joint submission on disposition.

The Ontario Racing Commission accepted the joint submission, imposing an 8-month suspension (with 3 months stayed), a $3,000 fine, and a two-year probationary period with conditions including random searches and out-of-competition testing.

The Ontario Harness Horse Association (OHHA) sought a hearing before the Ontario Racing Commission (ORC) regarding its status as the exclusive bargaining agent for horse people at Woodbine Entertainment Group (WEG) tracks, challenging a new agreement between WEG and the Central Ontario Standardbred Association (COSA).

WEG brought a preliminary motion arguing the ORC lacked jurisdiction to hear the matter.

The ORC granted WEG's motion, finding that the dispute was a private commercial contract issue between a track operator and trade associations, not primarily a matter of racing.

The ORC concluded it had no statutory authority or public interest mandate to intervene in complex commercial disputes or to act as a civil court.

The Ontario Harness Horse Association (OHHA) requested a hearing regarding the actions of Woodbine Entertainment Group (WEG) and the Central Ontario Standardbred Association (COSA).

WEG brought a motion arguing that the Ontario Racing Commission lacked jurisdiction to hear the matter.

The Panel granted WEG's motion, finding that the Commission had no jurisdiction, and dismissed OHHA's application.

The respondents brought a motion to exclude computer forensics evidence and a motion for a non-suit in an insider trading and tipping proceeding.

They argued that the software-generated evidence was unreliable hearsay and that the expert witness was biased and unqualified.

They also argued that Staff failed to establish a prima facie case.

The Commission dismissed the motion to exclude, finding that the software evidence possessed sufficient threshold reliability and that the expert's evidence was admissible, with issues of reliability going to weight.

The Commission also dismissed the non-suit motion, concluding that Staff's circumstantial evidence, taken at its highest, gave rise to reasonable inferences capable of supporting the allegations.

In an insider trading proceeding, the respondents brought a motion for unrestricted disclosure of forensic images of a third party's computer hard drives.

Staff had withheld two images citing the third party's privacy and sensitive commercial information.

The Commission held that while respondents are entitled to a high standard of disclosure akin to Stinchcombe to make full answer and defence, this right must be balanced against the legitimate privacy interests of third parties.

The Commission ordered disclosure of the disputed images but imposed strict conditions, including that the images remain in the custody of counsel or their expert, not be electronically copied, and be used solely for the purpose of the proceeding.

Following the dismissal of the appellants' appeal of a refusal to certify a class proceeding regarding pension plan amendments, the respondents sought costs.

The appellants argued that no costs should be awarded, relying on the public interest and novel point of law provisions under the Class Proceedings Act, 1992.

The Divisional Court found no special circumstances to depart from the general rule that costs follow the event.

Applying the overriding principle of reasonableness, the court awarded costs to the respondents, including disbursements for a responding report on a fresh evidence motion.

The appellants appealed the decision of the motion judge refusing to certify their proposed class proceedings against the Ontario Northland Transportation Commission regarding amendments to its pension plan.

The appellants alleged the pension plan was an irrevocable trust and the amendments constituted a breach of trust.

The Divisional Court dismissed the appeals, finding that the motion judge made no errors of law, no palpable and overriding errors of fact, and that her conclusions on mixed fact and law regarding common issues, preferable procedure, and representative plaintiffs were reasonable and entitled to deference.

Staff of the Ontario Securities Commission alleged that Universal Settlements International Inc. (USI) traded in securities without registration or a prospectus by offering viatical products to investors.

The central issue was whether these viatical products—fractional interests in the death benefits of life insurance policies—constituted 'investment contracts' under s. 1(1) of the Securities Act.

Applying the Howey and Pacific Coast tests, the Commission found that the products involved an investment of funds with a view to profit in a common enterprise, where profits were derived from the undeniably significant efforts of USI and its agents.

Consequently, the viatical products were deemed securities, requiring USI to comply with the Act's registration and prospectus requirements.

Staff of the Ontario Securities Commission alleged that the respondents, K.Y. Ho and Betty Ho, engaged in insider trading contrary to subsection 76(1) of the Securities Act by disposing of ATI shares prior to a public announcement that ATI would fall short of its forecasted revenue and earnings for Q3-2000.

The Commission dismissed the allegations, finding that Staff failed to establish that the revenue shortfall was a known fact at the time the shares were disposed of, and consequently, the respondents could not have had actual knowledge of it.

Furthermore, the Commission held that K.Y. Ho's charitable donations of shares were gifts made in good faith and did not constitute 'sales' for the purposes of the insider trading provisions.

The appellant, a licensed standardbred owner, appealed two rulings by racetrack judges suspending his licence and imposing a fine for using improper language and engaging in misconduct prejudicial to the best interests of racing during two separate altercations.

The Ontario Racing Commission upheld the findings of liability, noting the appellant's aggressive and threatening behaviour towards other licensees.

However, the Commission allowed the appeal in part regarding penalty, reducing the total suspension to 20 racing days and the fine to $3,000, while imposing a one-year probationary period.

The applicant, Kwok Yuen Ho, brought a motion for an order requiring Staff of the Ontario Securities Commission to produce the working file of the investigator responsible for the insider trading investigation against him.

The applicant argued that the file was necessary to make full answer and defence, as the investigator would be a key witness at the hearing.

The Commission dismissed the motion, distinguishing between evidence obtained during an investigation (which must be disclosed) and materials created by an investigator (which need not be disclosed unless the investigator is giving expert opinion evidence).

As the investigator was only being called as a fact witness, the working file was deemed irrelevant and not subject to disclosure.

The applicant brought a motion requesting the Hearing Panel reconsider a prior panel's decision dismissing a motion to strike certain words from the Statement of Allegations.

The Hearing Panel found it had no jurisdiction to review the prior decision under section 144 of the Securities Act, Rule 9 of the Rules of Practice, or the common law doctrine of functus officio.

Even if jurisdiction existed, the panel would have dismissed the motion, finding that the inclusion of the words 'and contrary to the public interest' did not impair the applicant's right to know the case to meet.

The applicant, Universal Settlements International, Inc., sought judicial review of an Ontario Securities Commission decision upholding an investigation order.

The applicant, which sold viatical settlement purchase programs, argued the Commission lacked jurisdiction because the applicant was neither a reporting issuer nor a registrant under the Securities Act.

The Divisional Court applied a reasonableness standard of review and dismissed the application, finding the Commission has broad statutory powers to investigate matters it considers expedient for the due administration of securities law and the protection of the public interest, regardless of the applicant's registration status.

The applicant brought a motion for a stay of an Ontario Securities Commission order requiring the production of documents and business records pursuant to s. 11 of the Securities Act.

The documents were sought as part of an investigation to determine if the Commission had jurisdiction to regulate the applicant's viatical settlement products.

The court granted the stay, finding that the applicant met the three-pronged test: there was a serious issue regarding the Commission's jurisdiction, irreparable harm would occur as the judicial review would be rendered moot without a stay, and the balance of convenience favoured the applicant given the impending hearing date.

The Superintendent of Financial Services issued a Notice of Proposed Cease and Desist Order against the applicants, alleging they were trafficking in life insurance policies without a license by selling viatical settlement purchase programs.

The applicants requested a hearing and challenged the Financial Services Tribunal's jurisdiction, arguing the programs did not constitute 'insurance undertaken in Ontario'.

The Tribunal found that the assignment of benefits under an American life insurance policy is a chose in action, not a contract of insurance.

Consequently, the Tribunal concluded it lacked jurisdiction and declared the Superintendent's Notice of Proposal of no force or effect.