Susan Jennifer Kushneryk

The Ontario Securities Commission alleged that TeknoScan Systems Inc. and three of its officers and directors perpetrated a securities fraud and made misleading statements to investors regarding a share purchase transaction.

The Capital Markets Tribunal found that the respondents perpetrated a fraud on preferred shareholders who opted into the transaction by omitting fundamental and essential facts from a notice, rendering it objectively dishonest and misleading.

The Tribunal also found that TeknoScan made a materially misleading statement to shareholders, and that the individual respondents authorized, permitted, or acquiesced in this breach.

Allegations of making misleading statements to the Commission were dismissed.

This endorsement addresses the costs arising from a denied urgent Norwich motion brought by the plaintiffs.

The court found no urgency for the Norwich order and determined that the defendant was entitled to costs.

The defendant sought costs on a substantial indemnity basis, while the plaintiffs argued for partial indemnity and payment in the cause, with a reduction for the defendant's alleged delay in retaining counsel and a cross-motion.

The court rejected the plaintiffs' arguments, finding no reason to delay the costs award or discount the defendant's costs.

The court ordered the plaintiffs to pay the defendant $50,000 in all-inclusive costs forthwith on a substantial indemnity scale.

The plaintiff brought a motion for leave to appeal the order of RSJ Ricchetti dated January 17, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the defendant in the amount of $7,500.

The Plaintiff, Jennifer Black, brought a motion for an interlocutory injunction to compel the Defendants, Mandeville Private Client Inc. and Mandeville Holding Inc., to allow her to continue providing investment management services to the Majestic Access Funds and to prevent interference with her economic relationship with Majestic Asset Management LLC.

The Defendants brought a cross-motion for an injunction to prohibit Black from soliciting Mandeville clients, citing a non-solicitation agreement.

The court dismissed Black's motion, finding she had no contractual right to transfer the funds or become their sub-advisor, and that Majestic was not a party to the litigation.

The court granted Mandeville's cross-motion, determining that Black's communications with clients prior to her resignation constituted solicitation in breach of the enforceable non-solicitation agreement, which was part of a business sale.

The plaintiffs brought a motion for an interlocutory injunction to enforce non-competition and non-solicitation clauses against a former financial advisor who had sold his book of business to them seven years prior.

The court found the non-competition clause to be overbroad and unenforceable, but upheld the non-solicitation clause as reasonable and severable.

Finding a strong prima facie case of breach, irreparable harm, and a balance of convenience favouring the plaintiffs, the court granted a limited injunction prohibiting the defendant from soliciting his former clients and using the plaintiffs' business records.

Julian Robert Ricci applied to the Ontario Securities Commission for a hearing and review of an IIROC hearing panel decision that suspended him for 24 months, fined him $200,000, and ordered $15,000 in costs for making misrepresentations to his firm's compliance staff and falsely endorsing client signatures.

Ricci argued the panel overlooked material evidence of client support and his prior non-registered time, and that the suspension was overly harsh.

The Commission dismissed the application, finding the IIROC panel did not overlook material evidence, err in law, or impose an unfit suspension, noting the Commission's restrained approach to interfering with self-regulatory organization sanctions.

The Ontario Securities Commission appealed a decision dismissing its application to continue directions freezing two offshore funds under s. 126(5) of the Securities Act.

The Commission argued for a new 'contextual reasonableness' standard rather than the established three-part RBC test.

The Court of Appeal affirmed that the RBC test—requiring a strong prima facie case of a Securities Act breach, a close connection between the misconduct and the assets, and evidence of potential dissipation—remains the appropriate standard, though it should be applied flexibly.

The Court found no error in the application judge's conclusion that the Commission failed to establish a prima facie case of a breach of the Act linked to the frozen funds.

The appeal was dismissed.

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 moving parties brought a motion to revoke or vary a direction issued by the Ontario Securities Commission freezing the assets of the offshore funds.

The moving parties argued the direction contradicted a Superior Court decision refusing a Mareva injunction in a related civil proceeding.

The Commission dismissed the motion, finding that the regulatory proceeding is separate from the civil litigation and that the public interest favoured preserving the assets pending a Superior Court hearing to continue the direction.

TSX Inc. sought intervenor status in a hearing and review requested by the respondent regarding a decision of Market Regulation Services Inc. (RS).

The respondent had challenged the validity of the Universal Market Integrity Rules (UMIR) and the TSX's delegation of market regulation to RS.

The Commission granted TSX limited intervenor status, finding that the TSX had a direct interest in the proceeding because its market regulation and enforcement regime was being challenged, and that its participation would be useful without unfairly prejudicing the existing parties.

Following the dismissal of the appellant's appeal regarding the right of limited partners to vote on the election of a new general partner, the parties were unable to agree on costs.

The Court of Appeal fixed costs on a partial indemnity basis, awarding $17,000 to Chalmers, $8,000 to the liquidator, and $5,000 to the respondent, plus disbursements and GST, all payable by the appellant.

The appellant appealed an order allowing two limited partners to vote on the election of a new general partner for a limited partnership.

The appellant argued the limited partners were affiliated with and not dealing at arms length with the manager, and thus disqualified from voting under the partnership agreements.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that there was no direct or indirect control establishing affiliation, and that the parties were dealing at arms length.

Deloitte & Touche LLP appealed an order of the Ontario Securities Commission authorizing the disclosure of written answers provided by Deloitte during an investigation to the respondents in a related enforcement proceeding.

Deloitte argued the information was not relevant, that disclosure was not in the public interest, and that the information was privileged.

The Divisional Court dismissed the appeal, finding the Commission reasonably concluded the information was relevant to the respondents' ability to make full answer and defence, that the public interest favoured disclosure, and that the information was not privileged because it did not originate in confidence.