Shara N. Roy

The Investigative Receiver sought various forms of relief, including a sealing order over asset valuations and an order requiring the respondent and his wife to disclose the use of proceeds from a $2.4 million mortgage on their family home.

The court granted the sealing order, finding it met the requirements of Sherman Estate.

The court also ordered the disclosure of the mortgage proceeds, finding the respondent's claim of ignorance regarding the funds to be not credible and determining that the information fell within the Receiver's investigative mandate.

The plaintiffs brought motions to compel the examination of a defendant on behalf of a corporate defendant and for further and better affidavits of documents from several defendants.

The parties agreed to dismiss the examination motion and portions of the production motion without prejudice.

The court ordered one defendant to produce certain financial documents relevant to personal enrichment and an itemized Schedule B list, but dismissed the remaining requests for further documents and better email descriptors, finding insufficient evidence of missing documents and that the current descriptors were proportionate.

Staff of the Ontario Securities Commission applied to revoke a confidentiality order made during a privilege motion brought by the respondent.

The panel had previously dismissed the privilege motion, finding that solicitor-client privilege did not apply.

As privilege was the sole basis for the confidentiality order, and the respondent did not oppose the application, the Commission found it would not be prejudicial to the public interest to revoke the order.

The application was granted, and the exhibits, submissions, and transcripts from the privilege motion were ordered to be made public.

The defendant law firm in a certified class action brought a motion to compel the representative plaintiff to answer questions refused during his examination for discovery.

The plaintiff argued the questions related only to individual issues, not common issues.

The court granted the motion, holding that the representative plaintiff is subject to the same discovery obligations as any plaintiff in a normal proceeding and must answer questions relevant to his own individual issues, even if he can refuse questions relevant only to other class members' discrete individual issues.

In a professional negligence class action regarding tax opinions provided for a timeshare donation program, the plaintiff brought a refusals motion seeking production of internal law firm memoranda.

The defendant law firm claimed quality assurance privilege and solicitor-client privilege over communications with its Ethics and Standards Committee.

The court held that a law firm can assert quality assurance privilege on a case-by-case basis using the Wigmore criteria.

After inspecting the documents, the court found they were privileged but ultimately irrelevant, and dismissed the refusals motion.

This appeal concerns whether a court has jurisdiction to extinguish a third party's gross overriding royalty (GOR) interest in land through a vesting order in a receivership proceeding.

The Court of Appeal held that while the court has jurisdiction under section 243 of the Bankruptcy and Insolvency Act to grant vesting orders, the motion judge erred in exercising that jurisdiction to extinguish the appellant's GORs, which constituted interests in land akin to ownership interests rather than fixed monetary claims.

However, the appellant failed to appeal within the prescribed 10-day period under the BIA Rules, and the justice of the case did not warrant an extension of time.

The appeal was dismissed, though the appellant retained the $250,000 payment it had received.

The appellant, an investor, sought damages from specific-project corporations on the basis of knowing assistance in a breach of fiduciary duty arising from a complex multi-million dollar real estate fraud perpetrated by a married couple.

The couple convinced investors to invest in specific-project corporations to acquire and hold commercial real estate, but instead diverted the funds for personal use.

The application judge dismissed the knowing assistance claim, finding the fraudulent wife's knowledge could not be imputed to the specific-project corporations.

The majority of the Court of Appeal allowed the claim.

The Supreme Court of Canada allowed the appeal, agreeing with the dissenting judge below that the knowing assistance claim must fail.

The Court clarified that while Livent permits courts to decline to apply corporate attribution where the public interest so requires, the minimal criteria from Canadian Dredge must always first be satisfied.

The applicant sought production of documents relating to a corporate acquisition that occurred three and a half years after the valuation date of his shares, arguing it was relevant to the valuation.

The respondents moved to strike the application.

The court dismissed the applicant's motion for production, holding that the mutually appointed valuator had the exclusive authority under the settlement agreement to determine the relevance of the post-valuation transaction.

The court struck the application against the third-party purchasers, finding they were improperly joined solely for discovery purposes, but declined to strike the breach of contract claim against the former employer, adjourning it pending the valuator's determination.

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.

Following a successful appeal of an arbitration award, the appellants sought costs for the appeal and two preliminary motions.

The respondents argued success was divided and disputed the scale and quantum.

The court found the appellants were entirely successful and entitled to costs for the appeal and the preliminary motions, which were necessitated by the respondents' ill-advised motion to quash.

The court declined to award substantial indemnity costs, finding no reprehensible conduct, and fixed costs on a partial indemnity scale at $54,284.74.

The Ontario Securities Commission (OSC) brought a motion to quash an appeal and an application for judicial review filed by the respondent regarding an interlocutory evidentiary ruling.

The respondent had sought to exclude evidence based on solicitor-client privilege, which the OSC hearing panel dismissed.

The Divisional Court granted the motion to quash, finding that section 9(1) of the Securities Act only permits appeals of final decisions.

The court also quashed the application for judicial review on the basis of prematurity, holding that the case did not present exceptional circumstances warranting interference in an ongoing administrative proceeding.

The appellants appealed an arbitration award under s. 45 of the Arbitration Act, 1991, arguing the arbitrator exceeded his jurisdiction by directing the boards of two corporate parties to determine the profits of a non-party US corporation.

The Superior Court of Justice agreed, finding that an arbitrator cannot bind or govern the affairs of a non-party.

The appeal was allowed in part, and the specific paragraph of the formal judgment affecting the non-party was set aside and remitted to the arbitrator with directions.

The respondent brought a motion to adjourn the hearing on the merits pending his appeal to the Divisional Court regarding a dismissed motion for a stay based on solicitor-client privilege.

Staff opposed the adjournment, citing its pending motion to quash the appeal.

The Commission found that proceeding with the hearing would not significantly expedite the matter, as the majority of the hearing would occur in September regardless of the outcome of Staff's motion.

The motion to adjourn was granted, and the hearing was rescheduled to September.

An insolvent mining company, Dianor Resources Inc., had mining claims subject to gross overriding royalties (GORs) in favour of 2350614 Ontario Inc. (235Co).

A receiver was appointed and approved a sale of the mining claims to Third Eye Capital Corporation.

The motion judge granted a vesting order that purported to extinguish the GORs, finding they did not constitute interests in land.

The Court of Appeal reversed this finding, holding that the GORs were interests in land under the test established in Bank of Montreal v. Dynex Petroleum Ltd. The court found the motion judge made three legal errors: failing to examine the parties' intentions holistically, requiring the royalty holder to have entry rights, and mischaracterizing the interest from which the royalty was carved.

The court did not finally determine whether the motion judge had jurisdiction to extinguish the GORs and required further submissions on this issue and on remedies.

This is a costs decision following a successful appeal by the appellants.

The appellants sought recovery of costs from the respondents, specifically requesting the same amounts that had been awarded to them at first instance ($51,885.55 from Christine DeJong Medicine Professional Corporation and $14,017.28 from Dennis and Peggy Condos).

The respondents sought no costs, arguing that all parties were victims of fraud and that the contest was between victims.

The court awarded costs to the appellants as requested, finding this to be a just and fair disposition given that the appellants were successful on all aspects of the appeal and that no costs of the appeal had been awarded to them despite their success.

The respondent requested that the Commission's reasons dismissing his motion on solicitor-client privilege be kept confidential from the public, arguing that publication would render the claimed privilege moot in the event of an appeal.

The Commission dismissed the request, finding that the open court principle applies and the respondent failed to establish any prejudice, as the reasons did not describe evidence that could fairly be considered legal advice.

This complex appeal arises from a multi-million dollar commercial real estate fraud perpetrated by Norma and Ronauld Walton over several years.

The appellants (DBDC Applicants) and respondents (Schedule C investors) were all victims of the fraud.

The central issue on appeal concerns the priority of claims against proceeds from the sale of properties acquired as part of the fraudulent scheme.

The appellants sought damages against the Listed Schedule C Companies on the basis of knowing assistance in breach of fiduciary duty, while the respondent DeJong sought constructive trusts over certain properties.

The majority allowed the appeal in part, finding the Listed Schedule C Companies jointly and severally liable for $22.6 million in damages for knowing assistance, but set aside the constructive trust awards to DeJong.

The dissent disagreed with the knowing assistance finding, arguing the net transfer analysis was insufficient to establish participation by the Listed Schedule C Companies in the breach of fiduciary duty owed to the appellants.

The respondent, Benedict Cheng, brought a motion claiming solicitor-client privilege over certain evidence, including memos written by the company's Chief Operating Officer (COO), who was also a licensed lawyer.

The respondent argued that the COO acted as the company's Chief Legal Officer and provided personal legal advice.

The Ontario Securities Commission dismissed the motion, finding that the COO's role was operational, not legal, and that no solicitor-client relationship existed between the COO and the respondent or the company.

Consequently, the communications were not protected by solicitor-client privilege.

Staff of the Ontario Securities Commission issued a Statement of Allegations against the respondents.

Prior to the hearing on the merits, the respondent brought a motion asserting solicitor-client privilege over certain evidence.

Staff brought a cross-motion to defer the privilege issue to the merits hearing, arguing prematurity and questioning whether a non-merits panel had jurisdiction to make pre-hearing evidentiary rulings.

The Commission held that it has jurisdiction to determine pre-hearing evidentiary issues, including privilege, and that doing so promotes efficiency.

Applying the Mega-C factors, the Commission concluded the privilege motion was discrete, necessary for a fair hearing, and not premature.

Staff's cross-motion was dismissed and the privilege motion was ordered to proceed.

This endorsement corrects factual errors in a previous endorsement dated May 24, 2017, regarding specific dates of telephone calls and property management appointments.

It also grants the plaintiffs' request for an order dismissing the limitations defence of the Bernstein defendants, which was an oversight in the prior decision.