Executive Summary: Key Legal and Evidentiary Issues

• Appeal challenged the trial judge’s alleged bias and failure to consider evidence.

• No trial transcript was submitted to substantiate claims of judicial bias or discrimination.

• Trial judge found no contractual or tortious liability against the respondent.

• Section 5 of the Electronic Brokerage Services Client Agreement excluded liability for information errors on the platform.

• Evidence showed the appellant had access to the shares once the order was filled and delayed contacting the respondent.

• No palpable or overriding error was found in the trial judge’s findings; appeal was dismissed.

Facts of the case

Hao Yu, the appellant, was a customer of TD Direct Investing, the respondent. On May 23, 2019, Yu placed an order to purchase 3,400 shares of Ideaya Biosciences Inc. at a price of $15.11 USD per share through her U.S. Registered Savings Plan. The order was placed via TD’s WebBroker Online Trade & Investing Platform (“WebBroker”). The order was filled at $14 USD per share at 10:42 AM that same day.

Yu later claimed that she had not “acquired” the shares until the time when her account was debited. By that time, the value of the stock had decreased. She sought damages in the amount of $12,882.53, alleging that she suffered a loss due to the timing of when the shares became accessible to her.

Trial decision and legal findings

The Small Claims Court dismissed Yu’s claim against both defendants. The trial judge found no cause of action or basis for liability against Bharat Masrani and determined that no contractual or tortious liability had been established against TD Direct Investing.

Key findings of the trial judge included:

• Once the order was filled, the shares became the appellant’s property and were available for trading.

• Section 5 of the Electronic Brokerage Services Client Agreement expressly stated that the respondent had no liability for the accuracy, completeness, timeliness, or sequencing of information on the platform. It further stated that the respondent was not responsible for any loss or damage resulting from user operation of an access device.

• The appellant’s inability to access the shares was due to her unfamiliarity with the WebBroker interface, and it was her responsibility to learn how to use the platform.

• She waited approximately two hours after the trade to contact TD brokerage services, which the court characterized as an exceptionally long time.

• The respondent had no duty to advise the appellant or to conduct the trade on her behalf, and she had assumed the risks associated with using the platform.

Appeal and outcome

Yu appealed on two main grounds:

a. The trial judge displayed bias and discriminated against her as a self-represented litigant with English as her second language.
b. The trial judge ignored her oral and documentary evidence and made errors of law and mixed law and fact.

The Ontario Superior Court of Justice dismissed the appeal. Justice McCarthy found that:

• No transcript of the trial was filed, and there was no cogent, substantial, or realistic evidence of bias or discrimination. General allegations about the judge’s demeanor and conduct—including claims that he was not friendly and took “nano naps”—did not meet the legal threshold for a reasonable apprehension of bias.

• There was no basis to interfere with the trial judge’s factual findings. The evidence supported the conclusion that Yu had access to the shares upon the order being filled and that the respondent bore no liability under the agreement. The judge made no palpable or overriding error in evaluating the evidence.

Conclusion

The appeal was dismissed. Justice McCarthy found that the trial judge properly applied the evidence and the law, and there was no basis for reversal. Directions were provided for brief written submissions if the parties could not agree on the issue of costs of the appeal.