Stableview: unitholders, a bar date and what 'motion' meant

When Grant Thornton Limited was appointed receiver of Stableview Asset Management Inc. and its three funds on June 9, 2020, on the Ontario Securities Commission's application under s. 129 of the Securities Act, the holding that would come to matter most was a block of shares in iLookabout Corp., later renamed Voxtur Analytics Corp. Stableview had taken an approximately 19.5 per cent stake out of the 2019 receivership sale of Clarocity Corporation, a company in which an OSC compliance review found the funds had become significantly over-concentrated, and as a condition of that stake it signed a standstill agreement restricting how many shares it could sell, per the Sixth Report, Apr. 9, 2026, paras. 10–12.

In the receiver's account, the standstill's restrictions made those shares challenging to monetize. The funds held more than 10 per cent of Voxtur, which kept the receiver registered as an insider until August 4, 2023, and a sale on the standstill's terms would have taken approximately 21 years at average trading volumes. The other large position, in AcuityAds Holding Inc., was sold between December 21, 2020 and January 6, 2021 for $16,693,763. An amendment of August 21, 2024 let investors sell up to 25 per cent of their shares at any time; two large investors then negotiated the standstill's termination directly with Voxtur, and after a release of February 13, 2025 the shares went to investors in kind. Voxtur filed under the CCAA on November 10, 2025. Progressive Fund investors, about 70 per cent of the money in the funds, have recovered approximately 90 per cent of their capital, and Insight Fund investors nothing, per the Sixth Report, Apr. 9, 2026, paras. 17–23.

The unitholders who now want to sue allege, in their notice of motion, that the appointment order let the receiver liquidate exchange-traded securities "within 60 days of the Receiver's appointment, or within such longer period of time as the Receiver deems advisable," yet it treated itself as bound by the standstill, spent $4,024,752.80 of fund cash exercising warrants in 2021 and 2022, and held the shares as they rose to $1.73, a value to unitholders of "almost $100 million," and fell to a few cents, "without selling even one share." The attached draft notice of action claims $100 million, per the Notice of Motion (Leave), Jan. 5, 2026, relief para. i; paras. 8, 22, 36; Sched. "A", para. 1(a). The receiver disputes the allegations "in their entirety," per the Sixth Report, Apr. 9, 2026, para. 44.

Whether that claim is ever heard turns first on five words in a consent endorsement Justice Steele released on November 6, 2025, "serve and file their motion," and on two motions, returnable September 2, that ask what those words required, per the Endorsement of Steele J., Nov. 4, 2025.

Sixty days and two drafts

The receiver moved on October 8, 2025 for approval of final distributions and its discharge. Unitholders had the motion put over to November 4, and on October 31 the receiver's counsel received the first email raising a "potential claim on behalf of the unit holders, now shareholders, against the Receiver with respect to the manner in which it dealt with the Voxtur Shares," per the Sixth Report, Apr. 9, 2026, paras. 25–27. On November 4 Justice Steele adjourned the discharge on agreed terms: the shareholders "have until January 5, 2026 to serve and file their motion for an order for leave to commence the Claim against the Receiver," failing which "any Claim by the Shareholders against the Receiver shall be forever extinguished and barred." A 30-minute case conference on January 8 would either timetable the leave motion or schedule the discharge, per the Endorsement of Steele J., Nov. 4, 2025.

The unitholder who negotiated those terms appeared for himself; he is a litigator called to the Ontario bar in 1980 and a former member of the Commercial List Users Committee, per the Transcript Brief, Aug. 14, 2026, Tab 1, QQ. 17–20. He deposes that he and Harvey Chaiton of Chaitons LLP, the receiver's counsel, agreed the unitholders "would serve a Notice of Motion prior to the return date" to signal that they would seek leave, and that he told Justice Steele so, per the Responding Motion Record (Love), June 25, 2026, Tab 1, paras. 15, 20. His own draft endorsement, emailed to a fellow unitholder at 4:31 p.m. that day, said the unitholders "will deliver a notice of motion to lift the stay." At 5:18 p.m., before he had sent it, Maya Poliak of Chaitons sent him the receiver's draft using "serve and file their motion," and his revisions the next morning kept that phrase, which he says he read as meaning the notice of motion, per the Responding Motion Record (Love), June 25, 2026, Tab 1, paras. 22–24, Exs. "G", "H".

The receiver's Sixth Report says it and its counsel understood and negotiated the word to mean a complete motion record, with evidence, so that the January 8 conference could set a timetable, per the Sixth Report, Apr. 9, 2026, para. 31. Jonathan Krieger, attending for the receiver, recorded the judge in his notes as saying "Surface evidence by day 60 and seek date to lift stay," per the Supplement to Sixth Report, July 10, 2026, para. 5, App. "B". The unitholders reply that no one from Chaitons has sworn to the negotiation and that the receiver did not cross-examine on it, per the Love Responding Factum, Aug. 26, 2026, paras. 12, 57.

Fifteen pages on January 5

What arrived on January 5, 2026 was a 15-page notice of motion, captioned for Christy Love et al., with 46 paragraphs of grounds, a draft notice of action naming 31 plaintiffs, requests for tolling back to June 9, 2020 and for representative counsel, and, under documentary evidence, "Such affidavits and other materials as may be relied upon at the motion," per the Notice of Motion (Leave), Jan. 5, 2026, relief paras. iii, viii; p. 14. Three volumes of record followed on January 20 and an expert report on the duties of court officers on April 2, corrected on April 6, per the Receiver's Factum, Aug. 14, 2026, paras. 20–21. At the January 8 conference, Justice Kimmel recorded that some named plaintiffs "are judges of the Ontario Superior Court of Justice, sitting in the Toronto and Central West Regions," and Regional Senior Justice MacLeod of the East Region was designated to hear the leave motion, per the Endorsement of Kimmel J., Jan. 8, 2026, para. 4.

The Sixth Report also said, from a court-record printout, that the notice was not filed until January 20, per the Sixth Report, Apr. 9, 2026, para. 35. A Rochon Genova law clerk answered that she filed it electronically on January 5 and that a registrar found the entry had been "security tagged" out of public view, a tag removed on June 19, per the Responding Motion Record (Love), June 25, 2026, Tab 2, paras. 5–9. The receiver's August 14 factum argues from what was served on January 5, per the Receiver's Factum, Aug. 14, 2026, paras. 4–5.

Its argument is that "motion" and "notice of motion" "are not synonymous." Rule 39.01(2) requires the affidavits founding a motion to be served with the notice; an order is read for its objective meaning, not a party's later understanding; and the notice failed Rule 37.06 in any event, listing no evidence and citing no rule, per the Receiver's Factum, Aug. 14, 2026, paras. 5, 26, 30, 34. It also points to the calendar: "If all the Unitholders had to file by January 5th was a 'notice of motion', it is hard to understand how the motion could have been scheduled on January 8th." On relief from the order, it puts the onus on the unitholders, notes that the negotiating unitholder held a legal memorandum on the issues dated December 27, 2024 while counsel was retained only in December 2025, and calls their reading "a forced and unnatural interpretation," per the Receiver's Factum, Aug. 14, 2026, paras. 29(b), 38, 41. On cross-examination, that unitholder agreed that on receiving the memorandum he had formed the view the receiver could sell the Voxtur shares notwithstanding the standstill, per the Transcript Brief, Aug. 14, 2026, Tab 1, QQ. 153–155.