The Litigator
Commentary on Law Affecting Business
The Litigator
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Catch and Exclude: The Ontario Court of Appeal reaffirms the Canadian approach to defining a “Security”

Jacob Millar

In late 2018, I wrote a summary of the Ontario Superior Court’s decision in OSC v Tiffin, 2018 ONSC 5419. In that case, a 6 month custodial sentence was imposed on a trader for trading in promissory notes despite being under a trading ban. Justice Charney ruled on whether to import the “family resemblance” test from US case law to determine whether a promissory notes amounted to a securities. Under that test, courts would use a contextual approach to determine if something constitutes a security. Ultimately the “family resemblance” test was not adopted into Canadian law. Instead, courts should rely ... [more] Full article

Securities regulators provide guidance to investors and market participants during COVID-19 pandemic

After an initial sharp downturn in the Spring of 2020, it would appear that the capital markets are the least of most people’s worries during the COVID-19 pandemic. But we ... [more] Full article

Has the OSC’s “special treatment” by appeal courts come to an end?

Appeals are usually an uphill battle for the party that loses at trial, but for more than two decades the hill has been even steeper for losing parties before the ... [more] Full article

Controversy as IIROC proposes merger with MFDA

In a publication released this month titled Improving Self-Regulation for Canadians, the Investment Industry Regulatory Organization of Canada (“IIROC”) has, among other things, proposed a merger of itself with another ... [more] Full article


Securities Regulatory Contributors

Kenneth A. Dekker

Kenneth A. Dekker

Affleck Greene McMurtry LLP

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 recognized for Corporate and Commercial Litigation by Best Lawyers of Canada and has been given the highest available rating of AV, or pre-eminent, by his peers on Martindale-Hubbell.

Contributor's Profile

Jacob Millar

Jacob Millar

Affleck Greene McMurtry LLP

Jacob Millar is a versatile lawyer who as a law student and articling student has gained experience in civil and criminal litigation and administrative matters in Ontario, Nova Scotia and the U.K. As an associate with the firm, Jacob represents and advises clients in all manner of commercial disputes and competition law matters.

Contributor's Profile