Steven I. Sofer

The applicants sought an order to enforce Letters Rogatory issued by a New York Court in a U.S. securities class action, compelling production of documents from the respondent, a non-party Ontario corporation.

The respondent opposed the application, arguing the requests were overly broad, irrelevant, and unduly burdensome.

The court applied the Friction Division guideposts and granted the application on a narrowed basis, restricting the temporal scope of the production and establishing a staged process to manage the costs and burden of electronic document review.

The applicant, who was examined as a witness in an OSC investigation, sought an order under s. 17 of the Securities Act authorizing him to disclose his compelled testimony in a U.S. court proceeding.

OSC Staff opposed the application, arguing that the Ontario Superior Court of Justice had jurisdiction over the U.S. court's letter of request and that the Tribunal should decline to exercise its jurisdiction.

The Tribunal found that it was in the public interest to grant the requested relief, as the proposed disclosure advanced the foreign regulatory proceeding resulting from the investigation, and the Ontario Court's involvement did not displace the Tribunal's statutory jurisdiction.

The applicant applied to the Capital Markets Tribunal for authorization under s. 17 of the Securities Act to disclose information from a compelled examination in a U.S. court proceeding.

The respondent argued that the Ontario Superior Court of Justice, which had recognized a letter of request from the U.S. court, had exclusive jurisdiction over the matter.

The Tribunal determined as a preliminary issue that its statutory jurisdiction to grant a s. 17 order was not displaced by the Ontario Court's order, as the requested relief sought to remove a legal impediment under Ontario law rather than interfere with the court's order.

The plaintiff commenced an action regarding a stream of royalty payments from a mine in Guatemala.

The defendants brought motions to strike the claim.

In response, the plaintiff delivered an amended statement of claim.

The defendants moved to declare the amended claim a nullity, arguing it could not be amended without leave in the face of a motion to strike.

The plaintiff brought a cross-motion for leave to amend.

The court held that while leave is required to amend a claim in the face of a motion to strike, the motion for leave should be heard first.

The court granted the plaintiff leave to amend, finding that the proposed amendments were not time-barred, did not withdraw admissions, and were sufficiently particularized.

The moving defendants (the Vuletics) sought a stay of the action, alleging an abuse of process because the plaintiffs (the Carotis) failed to immediately disclose a settlement agreement reached with a co-defendant (Kegalj).

The court dismissed the motion, finding that the settlement agreement did not entirely change the adversarial landscape.

The settling co-defendant was already adverse in interest to the moving defendants prior to the settlement, and the agreement merely required him to act as a truthful witness, which did not fundamentally alter the litigation's adversarial orientation.

The appellants appealed an arbitrator's decision to quash summonses issued to non-party lawyers in a commercial arbitration regarding referral fees.

The arbitrator had quashed the summonses on the basis that the requested client names and accounting information were protected by solicitor-client privilege.

The Superior Court dismissed the appeal, finding that the non-party lawyers were not bound by the arbitration agreement's expanded appeal rights, and under the Arbitration Act, 1991, there is no right of appeal for questions of mixed fact and law.

The court further held that the standard of review was reasonableness and the arbitrator's decision to quash the summonses and award costs was reasonable.

Epix Resource Finance Corporation applied for an order under section 127 of the Securities Act against Aberdeen International Inc., alleging Aberdeen failed to comply with obligations applicable to non-redeemable investment funds.

The Commission considered whether Epix should be granted standing to proceed as a private party.

The Commission dismissed the application, finding that Epix failed to demonstrate it was in the public interest to bypass Commission Staff's usual gatekeeper processes and policy-based filtering.

The Canadian Civil Liberties Association (CCLA) challenged the constitutionality of Ontario's Federal Carbon Tax Transparency Act (FCTTA) and its accompanying regulation, O. Reg. 275/19, which mandated gasoline retailers to display a specific sticker on gas pumps.

The CCLA argued this requirement constituted compelled speech, violating freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms.

The court granted the CCLA public interest standing, finding that the legislation's true purpose was partisan advocacy rather than neutral information sharing.

Consequently, the court held that the FCTTA and O. Reg. 275/19 infringed section 2(b) of the Charter and could not be justified under section 1, declaring them to be of no force or effect.

Staff of the Ontario Securities Commission alleged that NextBlock Global Limited and its CEO, Alex Tapscott, made misleading statements in slide deck presentations used to solicit investments in a private placement.

The respondents admitted that the slide decks constituted offering memoranda and falsely represented that certain prominent individuals were advisors to NextBlock.

The Commission approved a settlement agreement wherein NextBlock agreed to pay a $700,000 administrative penalty and $100,000 in costs, and Tapscott agreed to pay a $300,000 administrative penalty, publish an open letter, and deliver ethics presentations to business students.

The Commission found the settlement to be in the public interest, noting mitigating factors including the return of investments with profit, cooperation with Staff, and Tapscott's lack of prior disciplinary record.

The Plaintiffs in a class action sought court approval for a settlement agreement, a distribution plan, an honorarium for representative plaintiffs, and Class Counsel's fees and disbursements.

The class action, initiated in 2012, involved common law misrepresentation and statutory claims under the Ontario Securities Act for secondary market misrepresentations against SNC-Lavalin Group Inc. and its officers/directors.

After extensive litigation, including interlocutory motions, discovery, and two mediations, a settlement of $110 million was reached.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, considering the complexities and risks of the litigation.

The distribution plan and honoraria for representative plaintiffs were also approved.

Class Counsel's fee request of $25.25 million (22.95% of the settlement) plus disbursements and taxes was approved, recognizing the significant risk undertaken and the results achieved.

This decision addresses eight motions in a billion-dollar secondary market securities class action.

The court granted motions by SNC-Lavalin and its Outside Directors to strike paragraphs from the Plaintiffs' Amended Reply and dismissed the Plaintiffs' motion to deliver a Fresh as Amended Reply, finding that the Plaintiffs were attempting to plead a new, uncapped liability claim without leave and reintroduce previously rejected allegations of bribery in Libya.

The court also granted motions by the Outside Directors and Michael Novak to strike paragraphs from Riadh Ben Aïssa's Statement of Defence, which similarly attempted to introduce allegations of bribery in Libya and knowledge against co-defendants beyond the scope of the granted leave.

Additionally, the court granted protective orders for the examinations for discovery of Messrs.

Ben Aïssa, Duhaime, and Roy, who faced criminal charges, to protect their Charter rights and the integrity of criminal proceedings, but denied requests to stay or postpone discoveries.

The plaintiffs brought a proposed securities class action for secondary market misrepresentation under Part XXIII.1 of the Securities Act, obtained leave under s. 138.1, and had the action certified.

They later moved for leave to amend their statement of claim to add new allegations of misrepresentation.

The defendants consented to amendments that merely expanded already-pleaded allegations but opposed the balance as fresh misrepresentation claims requiring a separate, and now time-barred, leave application.

The court held that leave under s. 138.8 is assessed against each discrete allegation of misrepresentation, so that the impugned amendments — alleging new bribery and code-of-ethics violations in multiple jurisdictions — were not mere elaborations but discrete claims requiring a fresh leave application.

The motion was granted in part: the consented amendments were allowed and the impugned amendments were refused.

The plaintiffs in a certified class proceeding alleging secondary market misrepresentation brought a motion for the production of documents from the defendant SNC, including a Negotiated Resolution Agreement between SNC and the World Bank regarding bribery allegations.

The court dismissed the motion, finding that the documents were protected by settlement privilege.

The court held that the World Bank's sanctions procedures constituted 'litigation' for the purposes of the privilege, that the communications were intended to be confidential, and that their purpose was to effect a settlement.

The court declined to create a public policy exception to the privilege and found no waiver of the privilege by SNC.

The plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of a proposed class proceeding alleging secondary market misrepresentation by a public issuer and its directors and officers in continuous disclosure documents.

They also requested approval to discontinue common law negligent misrepresentation and oppression remedy claims in favour of the statutory cause of action.

The court held that the plaintiffs met the statutory leave test by demonstrating good faith and a reasonable possibility of success at trial.

It further concluded that discontinuance of the common law and oppression claims would not prejudice class members because the statutory claim avoided reliance issues and certification difficulties.

The action was certified as a class proceeding, with identifiable class members, common issues, and a preferable procedure established.

The respondent breached a 2004 cease trade order by trading securities listed on U.S. exchanges through brokerage accounts located in Toronto.

The respondent believed in good faith, based on legal advice, that trading on U.S. exchanges was permitted regardless of the account location.

The Commission found the breach was inadvertent but emphasized that respondents are responsible for ensuring compliance with Commission orders.

The Commission imposed an administrative penalty of $25,000, ordered disgorgement of any profits from the divestiture of the securities, permanently prohibited trading with a limited RRSP carve-out, and ordered $15,000 in costs.

Staff of the Ontario Securities Commission brought a motion to adjourn the respondents' Constitutional Motions until the hearing on the merits.

The respondents' motions challenged the constitutionality of section 11 of the Securities Act and the use of compelled evidence, seeking a stay of proceedings.

The Commission granted Staff's motion, holding that Charter challenges and requests for a stay of proceedings should generally not be decided in a factual vacuum.

The Commission found that a complete factual record, which could only be developed at the hearing on the merits, was necessary to properly assess whether the respondents' Charter rights were violated and what remedies might be appropriate.

Staff of the Ontario Securities Commission brought a motion to defer the hearing of Constitutional Motions brought by the respondents until the hearing on the merits.

The respondents sought to challenge the constitutionality of the investigation provisions of the Securities Act and the manner in which Staff obtained and used an investigation order.

The Commission granted Staff's motion, finding that Charter challenges should generally be decided on a complete factual record rather than in a factual vacuum.

The Commission concluded that the constitutional issues could not be fairly or completely resolved without regard to the contested facts and anticipated evidence that would be presented at the hearing on the merits.

The respondents requested that the Commission's Confidential Reasons and Decision dated May 18, 2007 be redacted to remove their names and identifying information prior to public release, relying on the confidentiality provisions in section 16 of the Securities Act.

Staff argued that subsection 17(6) permitted disclosure in connection with a proceeding and opposed a broad sealing order, but did not object to anonymizing the parties.

The Commission held that while it had the authority to release the reasons unredacted, it would exercise its discretion to release a redacted version until the commencement of the hearing on the merits.

The Attorney General of Canada appealed a decision striking down portions of the Tobacco Act and the Tobacco Products Information Regulations.

The respondent tobacco manufacturers cross-appealed the provisions upheld by the lower court.

The Supreme Court of Canada held that while the restrictions on tobacco advertising, sponsorship, and the requirement for 50% health warning labels infringed the manufacturers' freedom of expression under s. 2(b) of the Charter, these limits were demonstrably justified under s. 1.

The Court found that Parliament's objectives of protecting public health and preventing youth smoking were pressing and substantial, and the measures chosen were proportional and minimally impairing.

Staff of the Ontario Securities Commission brought a motion to adjourn the respondents' Constitutional Motions until the hearing on the merits.

The respondents had filed motions challenging the constitutionality of section 11 of the Securities Act and the manner in which an investigation order was obtained and used, alleging violations of their Charter rights.

The Commission held that the Constitutional Motions should be dealt with in the course of the hearing on the merits because a determination in advance would deprive the Commission of the complete factual basis necessary for a proper consideration of the alleged Charter violations.

Staff's motion was granted and the Constitutional Motions were deferred to the hearing panel.