An update on significant commercial litigation decisions released recently in Ontario.

Christian Farahat, Jennifer Dyck, Kenneth A. Dekker, W. Michael G. Osborne and Sonny Ingram
Affleck Greene McMurtry LLP January 11th, 2010

Contributers: Kenneth Dekker, Jennifer Dyck, Christian Farahat, Sonny Ingram, and Michael Osborne. An update on significant commercial litigation decisions released recently in Ontario. [more]

Attacks on Reputation

Statements to Securities Commission are protected by absolute privilege

Kenneth A. Dekker
Affleck Greene McMurtry LLP December 2nd, 2009

In his decision this Fall in Fraleigh v. RBC Dominion Securities, Ontario Superior Court Justice Newbould summarily dismissed an action brought by John Fraleigh against RBC Dominion Securities and one of its employees. The action was brought for allegedly false statements and testimony given before the Ontario Securities Commission claiming unusual trading activity in his RBC trading accounts – information that was later published in media reports. In dismissing Fraleigh’s action, Justice Newbould found that the claim arose entirely from testimony and other related communications to the OSC; communications that are protected by absolute privilege. [more]

Disputes within Companies and Partnerships

Oppression does not guarantee relief

Sonny Ingram
Affleck Greene McMurtry LLP November 5th, 2009

In Hu v. Sung, Superior Court Justice David Brown confronted the question of what to do when a shareholder in a private corporation has wrongfully excluded another from the affairs of the company, but by the time of trial the company has ceased operations, has not turned a profit and there is no evidence the offending shareholder personally benefited from the oppression. [more]

Securities Litigation

Investment industry practice can be considered in determining whether contract is formed, Court of Appeal rules

Christian Farahat, Articling Student
Affleck Greene McMurtry LLP October 8th, 2009

In its decision earlier this year in UBS Securities Canada, Inc. v. Sands Brothers Canada, Ltd., the Ontario Court of Appeal examined the extent to which industry custom and common practice may be utilized in determining whether a contract has been formed between two parties. In particular, the investment industry practice of conducting multi-million dollar deals over the telephone was cited by the Court in finding that a binding agreement for the purchase and sale of shares had been concluded between the parties to this litigation and in ordering specific performance of that agreement. [more]

Securities Litigation

Court of Appeal re-establishes IDA’s right to discipline former members

David N. Vaillancourt
Affleck Greene McMurtry LLP September 16th, 2009

The Ontario Court of Appeal has restored an earlier Ontario Securities Commission ruling, which held that the Investment Dealers Association of Canada (now known as the Investment Industry Regulatory Organization of Canada, or IIROC) retains the authority to discipline a former member for up to five years after that member has left the organization. The ruling also opens the door to IIROC and other SROs levying court-enforceable fines against former members. [more]

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Michael Binetti

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Superior Court refuses leave to securities class action based on the difference between “Material Facts” and “Material Changes”

Adam Casey

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Kenneth A. Dekker

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Kenneth Dekker, a partner of the firm, is a successful trial and appellate lawyer who is valued by his clients as a resourceful and practical litigation counsel. Over more than two decades, Ken has litigated noteworthy cases in a range of fields that include class action defence, securities and broker-dealer litigation and regulatory defence, corporate and shareholder disputes (including oppression and winding up cases), defamation, civil fraud litigation, disputes over contracts, injunctions, professional liability litigation, employment litigation and cross-border litigation issues. Ken has appeared before all levels of courts in Ontario, including the Ontario Court of Justice, the Superior Court of Justice, the Divisional Court and the Court of Appeal for Ontario, as well as before the Supreme Court of Canada. Ken also represents and advises clients in regulatory matters before the Investment Industry Organization of Canada (IIROC), the Mutual Fund Dealers Association of Canada (MFDA) and the Ontario Securities Commission (OSC). Ken has been ranked as Repeatedly Recommended for Securities Litigation by Lexpert, for Corporate and Commercial Litigation by Best Lawyers of Canada, and he has been given the highest available rating of AV, or pre-eminent, by his peers on Martindale-Hubbell.

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Fiduciary Duty for advisors not created by “Best Interest” standard alone

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