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New Judgment Clarifies When Bankruptcy Debt May Be Declared Non-Releasablehttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=365New Judgment Clarifies When Bankruptcy Debt May Be Declared Non-Releasable365BLG Blog PostOuassim Tadlaouiotadlaoui@blg.com | Ouassim Tadlaoui | 693A30232E777C626C6763616E6164615C6F7461646C616F7569 i:0#.w|blgcanada\otadlaoui BLG represented the applicant, Adobe Systems Incorporated, in this filing. <p>BLG represented the applicant, Adobe Systems Incorporated, in this filing. </p> ​The Québec Superior Court recently rendered a judgment (Francis v. Adobe 2018 QCCS 2547) confirming that a bankrupt's debt may be declared non-releasable by a discharge order pursuant to section 178 of the Bankruptcy and Insolvency Act (the "Act"), even when said discharge order has not yet been rendered or when the bankrupt's discharge has been suspended or granted conditionally pursuant to section 173 of the Act. BLG represented the applicant, Adobe Sytems Incorporated, in this filing. Read More →<p>​The Québec Superior Court recently rendered a judgment (<a href="https://www.canlii.org/en/qc/qccs/doc/2018/2018qccs2547/2018qccs2547.html" target="_blank"><em>Francis v. Adobe 2018 QCCS 2547</em></a>) confirming that a bankrupt's debt may be declared non-releasable by a discharge order pursuant to section 178 of the <em>Bankruptcy and Insolvency Act</em> (the "Act"), even when said discharge order has not yet been rendered or when the bankrupt's discharge has been suspended or granted conditionally pursuant to section 173 of the Act. BLG represented the applicant, Adobe Sytems Incorporated, in this filing.</p><p><a href="http://blg.com/en/News-And-Publications/Publication_5355" target="_blank"><strong>Read More →</strong></a></p>8/10/2018 4:00:00 AM2018-08-10T04:00:00ZTrue1float;#8.00000000000000float;#2018.00000000000string;#Augustfloat;#201808.000000000GP0|#edf60560-262c-4dfe-978c-31916bb6d7f5;L0|#0edf60560-262c-4dfe-978c-31916bb6d7f5|Bankruptcy, Insolvency and Restructuring;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and ComplianceBankruptcy, Insolvency and Restructuring;Securities: Litigation Regulatory and Compliance
Court of Appeal adds another exception to when contractual interpretation is a matter of law http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=367Court of Appeal adds another exception to when contractual interpretation is a matter of law 367BLG Blog PostChristine Muircmuir@blg.com | Christine Muir | 693A30232E777C626C6763616E6164615C636D756972 i:0#.w|blgcanada\cmuir ​The Court of Appeal for Ontario holds that a contract incorporating statutory terms is a question of law <p>​The Court of Appeal for Ontario holds that a contract incorporating statutory terms is a question of law<br></p> In CNH Canada Ltd., v. Chesterman Farm Equipment Ltd., the Ontario Court of Appeal ruled on the interpretation of a standard form farm equipment dealership agreement. The agreement was interpreted at first instance by the Agriculture, Food and Rural Affairs Tribunal pursuant to the Farm Implements Act, a statute meant, in part, to remedy the contractual power imbalance between farm implement dealers and distributors. The appeal arose from a decision of the Divisional Court largely upholding the Tribunal's decision. The dispute related to the termination of the dealership agreement and the impact of the recently in force Dealership Agreements Regulation on that termination. The Tribunal held that the Regulation amended the agreement, and revised its renewal provision to incorporate the Regulation's mandatory terms respecting renewal, making the manner in which the agreement was terminated a breach of the contract. The Tribunal awarded damages to the dealer for the breach, and ordered a significant costs award against the distributor for its conduct in the termination of the dealership agreement, as well as during the proceedings. Appeals from decisions of the Tribunal are limited solely to questions of law, and the Court emphasized that questions of contractual interpretation usually involve questions of mixed fact and law. However, the Court noted that the interpretation of a contract like the dealership agreement, which incorporated statutory terms by operation of law, was of "precedential value" and transcended the factual circumstances of the parties such that the interpretive exercise before it was a question of law and properly before the Court. Applying a standard of review of reasonableness, the Court of Appeal ultimately upheld the decision of the Tribunal with respect to its interpretation of the renewal provisions of the agreement. The decision of the Court provides a clear circumstance in which the interpretation of a contract will be deemed a question of law, informing both the appropriate standard of review on appeal and whether, in circumstances in which a statute limits a right of appeal to questions of law alone, appellate review is available at all. <p>In <em><a href="http://canlii.ca/t/ht00w">CNH Canada Ltd., v. Chesterman Farm Equipment Ltd</a>.</em>, the Ontario Court of Appeal ruled on the interpretation of a standard form farm equipment dealership agreement. The agreement was interpreted at first instance by the Agriculture, Food and Rural Affairs Tribunal pursuant to the <em>Farm Implements Act</em>, a statute meant, in part, to remedy the contractual power imbalance between farm implement dealers and distributors.  The appeal arose from a decision of the Divisional Court largely upholding the Tribunal's decision.</p><p>The dispute related to the termination of the dealership agreement and the impact of the recently in force <em>Dealership Agreements Regulation</em> on that termination. The Tribunal held that the <em>Regulation</em> amended the agreement, and revised its renewal provision to incorporate the <em>Regulation</em>'s mandatory terms respecting renewal, making the manner in which the agreement was terminated a breach of the contract. The Tribunal awarded damages to the dealer for the breach, and ordered a significant costs award against the distributor for its conduct in the termination of the dealership agreement, as well as during the proceedings. </p><p>Appeals from decisions of the Tribunal are limited solely to questions of law, and the Court emphasized that questions of contractual interpretation usually involve questions of mixed fact and law.  However, the Court noted that the interpretation of a contract like the dealership agreement, which incorporated statutory terms by operation of law, was of "precedential value" and transcended the factual circumstances of the parties such that the interpretive exercise before it was a question of law and properly before the Court. </p><p>Applying a standard of review of reasonableness, the Court of Appeal ultimately upheld the decision of the Tribunal with respect to its interpretation of the renewal provisions of the agreement. The decision of the Court provides a clear circumstance in which the interpretation of a contract will be deemed a question of law, informing both the appropriate standard of review on appeal and whether, in circumstances in which a statute limits a right of appeal to questions of law alone, appellate review is available at all. <br></p><p><br></p>8/9/2018 4:00:00 AM2018-08-09T04:00:00ZTrue1float;#8.00000000000000float;#2018.00000000000string;#Augustfloat;#201808.000000000GP0|#73bd9e71-b257-4720-b5f3-2bd7b78a546e;L0|#073bd9e71-b257-4720-b5f3-2bd7b78a546e|Litigation Strategy;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebLitigation Strategy
Will the Coffey Class Action have a Ripple Effect?http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=364Will the Coffey Class Action have a Ripple Effect?364BLG Blog PostMelissa M. Smith;Carol E. Derk;Robert Dawkins;Sinem Ersoymesmith@blg.com | Melissa M. Smith | 693A30232E777C626C6763616E6164615C6D65736D697468 i:0#.w|blgcanada\mesmith;cderk@blg.com | Carol E. Derk | 693A30232E777C626C6763616E6164615C636465726B i:0#.w|blgcanada\cderk;rdawkins@blg.com | Robert Dawkins | 693A30232E777C626C6763616E6164615C726461776B696E73 i:0#.w|blgcanada\rdawkins;sersoy@blg.com | Sinem Ersoy | 693A30232E777C626C6763616E6164615C736572736F79 i:0#.w|blgcanada\sersoy ​The proceeding is filed as a class action on behalf of Ripple owners, believed to be in the thousands by the plaintiff, and could have potential implications for other crypto-asset issuers and owners.<p>​The proceeding is filed as a class action on behalf of Ripple owners, believed to be in the thousands by the plaintiff, and could have potential implications for other crypto-asset issuers and owners.</p> ​The question as to whether crypto-assets should be classified as securities has been widely discussed both in Canada and the United States, with the Canadian Securities Administrators ("CSA") recently publishing guidance on this point in CSA Staff Notice 46-308 – Securities Law Implications for Offerings and Tokens. Now, thanks to a class action lawsuit launched against Ripple Labs, the United States federal court also has a chance to weigh in on this issue. Coffey v Ripple Labs Inc., is a class action lawsuit filed by Ryan Coffey in May of this year in which it is alleged that Ripple Labs’ XRP tokens constitute securities and, as such, their unregistered sale violates state and federal securities laws. The proceeding is filed as a class action on behalf of Ripple owners, believed to be in the thousands by the plaintiff, and could have potential implications for other crypto-asset issuers and owners ... Read More →<p>​The question as to whether crypto-assets should be classified as securities has been widely discussed both in Canada and the United States, with the Canadian Securities Administrators ("CSA") recently publishing guidance on this point in <a href="http://www.osc.gov.on.ca/en/SecuritiesLaw_csa_20180611_46-308_securities-law-implications-for-offerings-of-tokens.htm" target="_blank">CSA Staff Notice 46-308 – Securities Law Implications for Offerings and Tokens</a>. Now, thanks to a class action lawsuit launched against Ripple Labs, the United States federal court also has a chance to weigh in on this issue. <em>Coffey v Ripple Labs Inc.</em>, is a class action lawsuit filed by Ryan Coffey in May of this year in which it is alleged that Ripple Labs’ XRP tokens constitute securities and, as such, their unregistered sale violates state and federal securities laws. The proceeding is filed as a class action on behalf of Ripple owners, believed to be in the thousands by the plaintiff, and could have potential implications for other crypto-asset issuers and owners ... </p><p> <a href="http://blg.com/en/News-And-Publications/Publication_5350" target="_blank"> <strong>Read More →</strong></a></p>7/25/2018 4:00:00 AM2018-07-25T04:00:00ZTrue1float;#7.00000000000000float;#2018.00000000000string;#Julyfloat;#201807.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class Actions;GP0|#2df25a26-3353-4357-8797-8d21a2ea3aee;L0|#02df25a26-3353-4357-8797-8d21a2ea3aee|Banking and Bills of ExchangeSecurities: Litigation Regulatory and Compliance;Class Actions;Banking and Bills of Exchange
In the Internet of Things, Opportunities Abound for Class Action Litigation http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=366In the Internet of Things, Opportunities Abound for Class Action Litigation 366BLG Blog PostGlenn Zakaib;Edona C. Vilagzakaib@blg.com | Glenn Zakaib | 693A30232E777C626C6763616E6164615C677A616B616962 i:0#.w|blgcanada\gzakaib;evila@blg.com | Edona C. Vila | 693A30232E777C626C6763616E6164615C6576696C61 i:0#.w|blgcanada\evila ​At an estimated 8.4 billion in number, connected devices now in use outnumber people on earth.1 It is estimated that the usage of these devices will continue to grow, reaching 20 billion devices over the next two years and 50 billion devices by 2050.2 The Internet of Things (IoT) describes the milieu of these connected devices, which are connected to each other and to the internet.<p>​At an estimated 8.4 billion in number, connected devices now in use outnumber people on earth.<sup>1</sup> It is estimated that the usage of these devices will continue to grow, reaching 20 billion devices over the next two years and 50 billion devices by 2050.<sup>2</sup> The Internet of Things (IoT) describes the milieu of these connected devices, which are connected to each other and to the internet.</p> At an estimated 8.4 billion in number, connected devices now in use outnumber people on earth.1 It is estimated that the usage of these devices will continue to grow, reaching 20 billion devices over the next two years and 50 billion devices by 2050.2 The Internet of Things (IoT) describes the milieu of these connected devices, which are connected to each other and to the internet. IoT technologies are transforming not only industrial processes but the way people do business. Their effect is far reaching, cutting across all disciplines and industries. These connected devices range from wearables, children's smart toys and home appliances, to digital health devices and autonomous vehicles. In this new world of product development, IoT technologies are marked by shorter product and adoption cycles and have the capability to collect, store, and exchange highly specific data about their users. Product failures or vulnerabilities of IoT devices may not only lead to privacy breaches, but also to property damage, personal injury, and economic loss claims. Class actions may well become an effective litigation tool for advancing claims involving IoT technology failures. As recent IoT class action jurisprudence demonstrates, IoT product failures may be exposed by an ill-intentioned third party in the course of a cyber-attack or through benign schemes driven by research and journalistic initiatives.3 At times, the exposed vulnerability may necessitate a product recall.4 Read More →<p>At an estimated 8.4 billion in number, connected devices now in use outnumber people on earth.<sup>1</sup> It is estimated that the usage of these devices will continue to grow, reaching 20 billion devices over the next two years and 50 billion devices by 2050.<sup>2</sup> The Internet of Things (IoT) describes the milieu of these connected devices, which are connected to each other and to the internet. IoT technologies are transforming not only industrial processes but the way people do business. Their effect is far reaching, cutting across all disciplines and industries. These connected devices range from wearables, children's smart toys and home appliances, to digital health devices and autonomous vehicles.</p><p>In this new world of product development, IoT technologies are marked by shorter product and adoption cycles and have the capability to collect, store, and exchange highly specific data about their users. Product failures or vulnerabilities of IoT devices may not only lead to privacy breaches, but also to property damage, personal injury, and economic loss claims. Class actions may well become an effective litigation tool for advancing claims involving IoT technology failures. As recent IoT class action jurisprudence demonstrates, IoT product failures may be exposed by an ill-intentioned third party in the course of a cyber-attack or through benign schemes driven by research and journalistic initiatives.<sup>3</sup> At times, the exposed vulnerability may necessitate a product recall.<sup>4</sup></p><p><a href="http://blg.com/en/News-And-Publications/Publication_5354" target="_blank"><strong>Read More →</strong></a></p>7/20/2018 4:00:00 AM2018-07-20T04:00:00ZTrue1float;#7.00000000000000float;#2018.00000000000string;#Julyfloat;#201807.000000000GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class Actions;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#da989fe7-de9b-44ca-9a7c-ade6643bc163;L0|#0da989fe7-de9b-44ca-9a7c-ade6643bc163|Cybersecurity;GP0|#73bd9e71-b257-4720-b5f3-2bd7b78a546e;L0|#073bd9e71-b257-4720-b5f3-2bd7b78a546e|Litigation StrategyClass Actions;Cybersecurity;Litigation Strategy
If You Want to be Sure, You Should be Prepared to Pay for Ithttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=362If You Want to be Sure, You Should be Prepared to Pay for It362BLG Blog PostJake Zhongjzhong@blg.com | Jake Zhong | 693A30232E777C626C6763616E6164615C6A7A686F6E67 i:0#.w|blgcanada\jzhong ​A recent decision of the British Columbia Supreme Court highlights the potential risk of relying on freely available information coupled with a disclaimer that limits liability.<p>​A recent decision of the British Columbia Supreme Court highlights the potential risk of relying on freely available information coupled with a disclaimer that limits liability.</p> The recent decision of the British Columbia Court of Appeal in Kokanee Mortgage M.I.C. Ltd. v. Burrell1 confirms that the general principle in law remains that disclaimers extinguish liability. Only in very limited circumstances can a party reasonably rely on a piece of information coupled with a clear clause excluding liability. In this case, Kokanee Mortgage M.I.C. Ltd. ("Kokanee") is a mortgage company. It made a $700,000 loan to a borrower and took a second mortgage on a real property owned by the borrower as security. Before advancing the loan, one of the managing directors of Kokanee reviewed and relied on an appraisal report prepared by Robin Burrell of Coast Property Appraisals Ltd. ("Coast Property") for the borrower in relation to the real property. However, as it turned out, the appraised value certified by Coast Property in its report was off the mark by almost $1 million. The borrower subsequently defaulted on their obligations. Although Kokanee successfully foreclosed on the real property, it still suffered significant losses on this loan. Kokanee then sued Coast Property and its principals for negligent misrepresentation. Coast Property's primary defence is a disclaimer clause found in its report which states, among other things It is not reasonable for any other party to rely on this appraisal without first obtaining written authorization from the client, the author and any supervisory appraiser … Written consent from the author and supervisory appraiser, if applicable, must be obtained before any part of the appraisal report can be used for any purpose by anyone except the client and other intended users identified in the report … In his reasons, Harris J. distilled the issue in this case to the following question assuming Kokanee's reliance would have been reasonable in the absence of the disclaimer, was it reasonable for Kokanee to rely with knowledge of the disclaimer?2 In answering this question, Harris J. noted that, to treat Kokanee's reliance as reasonable in the circumstances of this case would be to permit Kokanee, through its otherwise reasonable reliance, to unilaterally impose a practically non-disclaimable duty on Coast Property.3 In the end, Harris J. found that it was reasonable for Coast Property to include the disclaimer in its report to control its risk of liability and the borrower to use the appraisal to interest a prospective lender, but it was not reasonable for Kokanee to rely on the appraisal while having full knowledge of the disclaimer. The crucial consideration here is the fact that there are alternative sources of information available should Kokanee needs to be certain about the fair market value of the real property but instead it decided to rely on Coast Property's appraisal for reasons of business efficacy.4 The Court then went on to dismiss Kokanee's action in its entirety. It should be noted, however, this case does not suggest that once a party inserts a disclaimer in the information it gives to another party, it is then fully protected from potential liability. There are circumstances that warrant a finding that even with full knowledge of the disclaimer, it is still reasonable for the other party to rely on such information.5 Rather, the key takeaway of this decision should be that if more reliable information is needed, the inquirer should be prepared to pay for it.6 1 Kokanee Mortgage M.I.C. Ltd. v. Burrell, 2018 BCCA 151 2 supra, at paras. 24-25 3 supra, at para. 38 4 Kokanee Mortgage M.I.C. Ltd. v. Burrell, 2018 BCCA 151, at paras. 38-40 5 See Micron Construction Ltd. v. Hong Kong Bank of Canada, 2000 BCCA 141 6 Kokanee Mortgage M.I.C. Ltd. v. Burrell, 2018 BCCA 151, at para. 35<p>The recent decision of the British Columbia Court of Appeal in <strong> <em>Kokanee Mortgage M.I.C. Ltd. v. Burrell</em></strong><sup>1</sup> confirms that the general principle in law remains that disclaimers extinguish liability. Only in very limited circumstances can a party reasonably rely on a piece of information coupled with a clear clause excluding liability.</p><p>In this case, Kokanee Mortgage M.I.C. Ltd. ("<strong>Kokanee</strong>") is a mortgage company. It made a $700,000 loan to a borrower and took a second mortgage on a real property owned by the borrower as security. Before advancing the loan, one of the managing directors of Kokanee reviewed and relied on an appraisal report prepared by Robin Burrell of Coast Property Appraisals Ltd. ("<strong>Coast Property</strong>") for the borrower in relation to the real property. However, as it turned out, the appraised value certified by Coast Property in its report was off the mark by almost $1 million. The borrower subsequently defaulted on their obligations. Although Kokanee successfully foreclosed on the real property, it still suffered significant losses on this loan. Kokanee then sued Coast Property and its principals for negligent misrepresentation.</p><p>Coast Property's primary defence is a disclaimer clause found in its report which states, among other things:</p><p style="margin-left:20px;"> <em>It is not reasonable for any other party to rely on this appraisal without first obtaining written authorization from the client, the author and any supervisory appraiser …</em></p><p style="margin-left:20px;"> <em>Written consent from the author and supervisory appraiser, if applicable, must be obtained before any part of the appraisal report can be used for any purpose by anyone except the client and other intended users identified in the report …</em></p><p>In his reasons, Harris J. distilled the issue in this case to the following question: assuming Kokanee's reliance would have been reasonable in the absence of the disclaimer, was it reasonable for Kokanee to rely with knowledge of the disclaimer?<sup>2</sup> In answering this question, Harris J. noted that, to treat Kokanee's reliance as reasonable in the circumstances of this case would be to permit Kokanee, through its otherwise reasonable reliance, to unilaterally impose a practically non-disclaimable duty on Coast Property.<sup>3</sup></p><p>In the end, Harris J. found that it was reasonable for Coast Property to include the disclaimer in its report to control its risk of liability and the borrower to use the appraisal to interest a prospective lender, but it was not reasonable for Kokanee to rely on the appraisal while having full knowledge of the disclaimer. The crucial consideration here is the fact that there are alternative sources of information available should Kokanee needs to be certain about the fair market value of the real property but instead it decided to rely on Coast Property's appraisal for reasons of business efficacy.<sup>4</sup> The Court then went on to dismiss Kokanee's action in its entirety.</p><p>It should be noted, however, this case does not suggest that once a party inserts a disclaimer in the information it gives to another party, it is then fully protected from potential liability. There are circumstances that warrant a finding that even with full knowledge of the disclaimer, it is still reasonable for the other party to rely on such information.<sup>5</sup> Rather, the key takeaway of this decision should be that if more reliable information is needed, the inquirer should be prepared to pay for it.<sup>6<br></sup></p><hr /><p> </p><p> <sup>1</sup> <em>Kokanee Mortgage M.I.C. Ltd. v. Burrell</em>, 2018 BCCA 151</p><p> <sup>2</sup> <em>supra</em>, at paras. 24-25</p><p> <sup>3</sup> <em>supra</em>, at para. 38</p><p> <sup>4</sup> <em>Kokanee Mortgage M.I.C. Ltd. v. Burrell</em>, 2018 BCCA 151, at paras. 38-40</p><p> <sup>5</sup> See <em>Micron Construction Ltd. v. Hong Kong Bank of Canada</em>, 2000 BCCA 141</p><p> <sup>6</sup> Kokanee Mortgage M.I.C. Ltd. v. Burrell, 2018 BCCA 151, at para. 35</p>7/19/2018 4:00:00 AM2018-07-19T04:00:00ZTrue1float;#7.00000000000000float;#2018.00000000000string;#Julyfloat;#201807.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebSecurities: Litigation Regulatory and Compliance
Plaintiffs Permitted to Add Defendants to Foreign Exchange Class Action Based on Information Obtained from Settling Defendantshttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=360Plaintiffs Permitted to Add Defendants to Foreign Exchange Class Action Based on Information Obtained from Settling Defendants360BLG Blog PostNaveen Hassannhassan@blg.com | Naveen Hassan | 693A30232E777C626C6763616E6164615C6E68617373616E i:0#.w|blgcanada\nhassan ​Late last month, the Court of Appeal of Ontario released its decision in Mancinelli v Royal Bank of Canada.1<p>​Late last month, the Court of Appeal of Ontario released its decision in <a href="http://canlii.ca/t/hshp0"><em>Mancinelli v Royal Bank of Canada</em></a>.<a href="http://canlii.ca/t/hshp0" target="_blank"><sup>1</sup></a></p><a href="http://canlii.ca/t/hshp0" target="_blank"></a> Late last month, the Court of Appeal of Ontario released its decision in Mancinelli v Royal Bank of Canada.1 In it, the Court dealt with a situation that is becoming increasingly common in class actions the plaintiffs in a class action alleging a conspiracy settle with one or more defendants and, as part of the settlement, obtain the cooperation of the settling defendant(s) who provide them with documents (and sometimes testimony) relating to the claim. In Mancinelli, the Court had to decide whether the plaintiffs could add additional defendants to their claim, based upon information contained in the "evidentiary proffer" received from the settling defendants. The proposed new defendants argued that the plaintiffs' proposed claims against them were statute-barred under the Limitations Act, 2002 and the Competition Act. On September 11, 2015, the appellants commenced a class action against sixteen groups of financial institutions alleging a price-fixing conspiracy in the foreign exchange or foreign currency market between January 1, 2003 and December 31, 2013 ... Read More →<p>Late last month, the Court of Appeal of Ontario released its decision in <a href="http://canlii.ca/t/hshp0" target="_blank"> <em>Mancinelli v Royal Bank of Canada</em></a>.<sup>1</sup> In it, the Court dealt with a situation that is becoming increasingly common in class actions: the plaintiffs in a class action alleging a conspiracy settle with one or more defendants and, as part of the settlement, obtain the cooperation of the settling defendant(s) who provide them with documents (and sometimes testimony) relating to the claim.  In <em>Mancinelli</em>, the Court had to decide whether the plaintiffs could add additional defendants to their claim, based upon information contained in the "evidentiary proffer" received from the settling defendants.  The proposed new defendants argued that the plaintiffs' proposed claims against them were statute-barred under the <a href="https://www.ontario.ca/laws/statute/02l24" target="_blank"><em>Limitations Act, 2002</em></a> and the <a href="http://laws.justice.gc.ca/eng/acts/C-34/index.html" target="_blank"><em>Competition Act</em></a>.</p><p>On September 11, 2015, the appellants commenced a class action against sixteen groups of financial institutions alleging a price-fixing conspiracy in the foreign exchange or foreign currency market between January 1, 2003 and December 31, 2013 ... </p><p><a href="http://blg.com/en/News-And-Publications/Publication_5346" target="_blank"><strong>Read More →</strong></a></p>7/10/2018 4:00:00 AM2018-07-10T04:00:00ZTrue1float;#7.00000000000000float;#2018.00000000000string;#Julyfloat;#201807.000000000GP0|#d531403d-b705-440c-8be2-98e2a4c77989;L0|#0d531403d-b705-440c-8be2-98e2a4c77989|Class Actions;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#2df25a26-3353-4357-8797-8d21a2ea3aee;L0|#02df25a26-3353-4357-8797-8d21a2ea3aee|Banking and Bills of ExchangeClass Actions;Banking and Bills of Exchange
CSA Releases its review of the MFDAhttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=359CSA Releases its review of the MFDA359BLG Blog PostKatie Archibaldkarchibald@blg.com | Katie Archibald | 693A30232E777C626C6763616E6164615C6B617263686962616C64 i:0#.w|blgcanada\karchibald ​The Mutual Fund Dealers Association of Canada passed the Canadian Securities' Administrators' annual review.<p>​The Mutual Fund Dealers Association of Canada passed the Canadian Securities' Administrators' annual review.</p> On July 4, 2018, the Canadian Securities Administrators ("CSA") released its Oversight Review Report of the Mutual Fund Dealers Association of Canada ("MFDA"), covering the period from February 1, 2017 to January 31, 2018. CSA staff reviewed the MFDA's regulatory processes related to sales compliance, membership services, financial operations, and corporate governance. The report concludes that no findings were identified during the oversight review and that the MFDA is meeting the relevant terms and conditions of the recognition orders cited in previous oversight reports. CSA staff acknowledged that the MFDA made sufficient progress in resolving the findings which were cited in previous oversight reports and which were followed up on by the CSA prior to the oversight review. The review was jointly conducted by the Alberta Securities Commission, the British Columbia Securities Commission, the Financial and Consumer Affairs Authority of Saskatchewan, the Financial and Consumer Services Commission of New Brunswick, the Manitoba Securities Commission, the Nova Scotia Securities Commission, and the Ontario Securities Commission.<p>On July 4, 2018, the Canadian Securities Administrators ("CSA") released its <a href="http://www.osc.gov.on.ca/documents/en/Marketplaces/sor-mfda_20180704_oversight-review-rpt.pdf" target="_blank">Oversight Review Report of the Mutual Fund Dealers Association of Canada</a> ("MFDA"), covering the period from February 1, 2017 to January 31, 2018. </p><p>CSA staff reviewed the MFDA's regulatory processes related to sales compliance, membership services, financial operations, and corporate governance. The report concludes that no findings were identified during the oversight review and that the MFDA is meeting the relevant terms and conditions of the recognition orders cited in previous oversight reports. CSA staff acknowledged that the MFDA made sufficient progress in resolving the findings which were cited in previous oversight reports and which were followed up on by the CSA prior to the oversight review.</p><p>The review was jointly conducted by the Alberta Securities Commission, the British Columbia Securities Commission, the Financial and Consumer Affairs Authority of Saskatchewan, the Financial and Consumer Services Commission of New Brunswick, the Manitoba Securities Commission, the Nova Scotia Securities Commission, and the Ontario Securities Commission.</p>7/9/2018 4:00:00 AM2018-07-09T04:00:00ZTrue1float;#7.00000000000000float;#2018.00000000000string;#Julyfloat;#201807.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebSecurities: Litigation Regulatory and Compliance
Canadian Securities Regulators Publish Revamped "Client Focused" Registrant Reform Proposals and Signal Policy Direction on Mutual Fund Embedded Compensationhttp://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=358Canadian Securities Regulators Publish Revamped "Client Focused" Registrant Reform Proposals and Signal Policy Direction on Mutual Fund Embedded Compensation358BLG Blog PostJason J. Brooks;Rebecca A. Cowdery;David Di Paolo;Sarah Gardiner;Laura Paglia;Prema K. Thielejbrooks@blg.com | Jason J. Brooks | 693A30232E777C626C6763616E6164615C6A6A62 i:0#.w|blgcanada\jjb;rcowdery@blg.com | Rebecca A. Cowdery | 693A30232E777C626C6763616E6164615C72636F7764657279 i:0#.w|blgcanada\rcowdery;ddipaolo@blg.com | David Di Paolo | 693A30232E777C626C6763616E6164615C64646970616F6C6F i:0#.w|blgcanada\ddipaolo;sgardiner@blg.com | Sarah Gardiner | 693A30232E777C626C6763616E6164615C7367617264696E65 i:0#.w|blgcanada\sgardine;lpaglia@blg.com | Laura Paglia | 693A30232E777C626C6763616E6164615C6C7061676C6961 i:0#.w|blgcanada\lpaglia;pthiele@blg.com | Prema K. Thiele | 693A30232E777C626C6763616E6164615C70746869656C65 i:0#.w|blgcanada\pthiele The Canadian Securities Administrators' ("CSA") long-standing initiatives to deal with the investor protection issues they consider associated with today's retail client-registrant relationships and current methods of mutual fund compensation finally coalesced with the June 21 release of two significant publications ... <p>The Canadian Securities Administrators' ("CSA") long-standing initiatives to deal with the investor protection issues they consider associated with today's retail client-registrant relationships and current methods of mutual fund compensation finally coalesced with the June 21 release of two significant publications ... </p> The Canadian Securities Administrators' ("CSA") long-standing initiatives to deal with the investor protection issues they consider associated with today's retail client-registrant relationships and current methods of mutual fund compensation finally coalesced with the June 21 release of two significant publications CSA Notice and Request for Comment Reforms to Enhance the Client-Registrant Relationship (Client Focused Reforms) Proposed Amendments to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations and Companion Policy 31-103 CP (NI 31-103 Reforms) and CSA Staff Notice 81-330 Status Report on Consultation on Embedded Commissions and Next Steps (the Mutual Fund Fee Reforms). Both of these projects are entering their sixth year of intensive regulatory analysis and review. Both arise out of principled concerns expressed by the CSA that the status quo is not serving retail investors appropriately, which requires changes to be made. Although this is the first publication of actual draft amendments to NI 31-103 and the Companion Policy, the NI 31-103 Reforms are the third version of the CSA's proposals. It is clear that the CSA have considered the many thoughtful comments which were provided on the previous proposals and have made fairly significant — and, in our view, some positive — changes. Some of the earlier proposals from the April 2016 publication, including the most controversial, have been shelved for further consideration and review, either concurrently while moving forward with the NI 31-103 Reforms or at an indefinite future date. These include A "regulatory" best interest standard for all registrants will no longer be pursued and will not be considered further, at least as long as the CSA see that the NI 31-103 Reforms "achieve the outcomes they are seeking for investors". However, the CSA use the term "best interests of the client" liberally throughout the NI 31-103 reforms. Proficiency requirements for registrants and their representatives will be developed in a separate track. Titles and designations, including the use of the word "advisor", will also be considered in a separate track, although we note that the NI 31-103 Reforms touch on titles and designations. Imposing a "statutory" fiduciary duty for discretionary asset/portfolio managers will be developed in those provinces where one does not already exist. Clarifying the role of Ultimate Designated Persons and Chief Compliance Officers will be considered in a separate track. Comments are due on the NI 31-103 Reforms by October 19, 2018. Read More ↠<p>The Canadian Securities Administrators' ("CSA") long-standing initiatives to deal with the investor protection issues they consider associated with today's retail client-registrant relationships and current methods of mutual fund compensation finally coalesced with the June 21 release of two significant publications:</p><ul><li> <a href="http://www.osc.gov.on.ca/documents/en/Securities-Category3/rule_20180621_31-103_client-focused-reforms.pdf">CSA Notice and Request for Comment <em>Reforms to Enhance the Client-Registrant Relationship (Client Focused Reforms)</em> Proposed Amendments to National Instrument 31-103 <em>Registration Requirements, Exemptions and Ongoing Registrant Obligations</em> and Companion Policy 31-103 CP</a> (NI 31-103 Reforms) and</li><li> <a href="http://www.osc.gov.on.ca/documents/en/Securities-Category8/csa_20180621_81-330-status-report.pdf">CSA Staff Notice 81-330 <em>Status Report on Consultation on Embedded Commissions and Next Steps</em></a> (the Mutual Fund Fee Reforms).</li></ul><p>Both of these projects are entering their sixth year of intensive regulatory analysis and review. Both arise out of principled concerns expressed by the CSA that the status quo is not serving retail investors appropriately, which requires changes to be made.</p><p>Although this is the first publication of actual draft amendments to NI 31-103 and the Companion Policy, the NI 31-103 Reforms are the third version of the CSA's proposals. It is clear that the CSA have considered the many thoughtful comments which were provided on the previous proposals and have made fairly significant — and, in our view, some positive — changes. Some of the earlier proposals from the April 2016 publication, including the most controversial, have been shelved for further consideration and review, either concurrently while moving forward with the NI 31-103 Reforms or at an indefinite future date. These include: </p><ul><li>A "regulatory" best interest standard for all registrants will no longer be pursued and will not be considered further, at least as long as the CSA see that the NI 31-103 Reforms "achieve the outcomes they are seeking for investors". However, the CSA use the term "best interests of the client" liberally throughout the NI 31-103 reforms.</li><li>Proficiency requirements for registrants and their representatives will be developed in a separate track. </li><li>Titles and designations, including the use of the word "advisor", will also be considered in a separate track, although we note that the NI 31-103 Reforms touch on titles and designations.</li><li>Imposing a "statutory" fiduciary duty for discretionary asset/portfolio managers will be developed in those provinces where one does not already exist.</li><li>Clarifying the role of Ultimate Designated Persons and Chief Compliance Officers will be considered in a separate track.</li></ul><p>Comments are due on the NI 31-103 Reforms by <strong>October 19, 2018</strong>.</p><p><a href="http://blg.com/en/News-And-Publications/Publication_5337" target="_blank"><strong>Read More ↠</strong></a></p>6/29/2018 4:00:00 AM2018-06-29T04:00:00ZTrue1float;#6.00000000000000float;#2018.00000000000string;#Junefloat;#201806.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebSecurities: Litigation Regulatory and Compliance
Reminder: litigants should withdraw unfounded allegations of fraud – and do it early – or risk cost consequences http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=357Reminder: litigants should withdraw unfounded allegations of fraud – and do it early – or risk cost consequences 357BLG Blog PostShelby Lieschsliesch@blg.com | Shelby Liesch | 693A30232E777C626C6763616E6164615C736C6965736368 i:0#.w|blgcanada\sliesch BC Supreme Court cautions litigants advancing unfounded allegations of fraud to abandon these claims well in advance of trial or risk adverse cost consequences, particularly where those allegations could mire a party's professional reputation. <p>BC Supreme Court cautions litigants advancing unfounded allegations of fraud to abandon these claims well in advance of trial or risk adverse cost consequences, particularly where those allegations could mire a party's professional reputation.  </p> ​The recent decision of 0932053 B.C. Ltd. v. TBM Holdco Ltd., ("TBM Holdco") serves as a caution to litigants advancing unfounded allegations of fraud to abandon these claims well in advance of trial or risk adverse cost consequences, particularly where those allegations could mire a party's professional reputation. In TBM Holdco, the British Columbia Supreme Court awarded special costs to a third party to the proceeding, Mr. Timothy Urquhart, who was the former President and Chief Executive Officer of the defendant TBM Holdco Ltd. The defendants had maintained allegations of fraudulent misrepresentation against Mr. Urquhart up until the day before trial, when they were withdrawn. Despite abandoning this claim prior to trial, Burnyeat J. concluded that the allegations had cast a "serious pall" over Mr. Urquhart's professional reputation since the date of the commencement of the action, such that the defendants' conduct was reprehensible and deserving of rebuke. The allegations were "there for all to see" for 14 months, which put Mr. Urquhart's professional reputation in a small and highly competitive business community at risk. The court also found it troubling that, despite the seriousness of the allegations, the defendants had little to no evidence of any fraudulent conduct committed by Mr. Urquhart prior to launching the claim, and had failed to take even basic steps to investigate. Although it was open to the court to make a partial award for special costs, Burnyeat J. awarded special costs throughout the proceeding, including the costs incurred at trial. This should serve as a caution to litigants to refrain from advancing frivolous or unfounded claims of fraud or deceit – or abandon them well in advance of trial - especially where a party's professional reputation is at stake. <p>​The recent decision of <em><a href="http://canlii.ca/t/hsjt9" target="_blank">0932053 B.C. Ltd. v. TBM Holdco Ltd</a>.,</em> ("<em>TBM Holdco") </em>serves as a caution to litigants advancing unfounded allegations of fraud to abandon these claims well in advance of trial or risk adverse cost consequences, particularly where those allegations could mire a party's professional reputation.  </p><p>In <em>TBM Holdco, </em>the British Columbia Supreme Court awarded special costs to a third party to the proceeding, Mr. Timothy  Urquhart, who was the former President and Chief Executive Officer of the defendant TBM Holdco Ltd. The defendants had maintained allegations of fraudulent misrepresentation against Mr. Urquhart up until the day before trial, when they were withdrawn. </p><p>Despite abandoning this claim prior to trial, Burnyeat J. concluded that the allegations had cast a "serious pall" over Mr. Urquhart's professional reputation since the date of the commencement of the action, such that the defendants' conduct was reprehensible and deserving of rebuke. The allegations were "there for all to see" for 14 months, which put Mr. Urquhart's professional reputation in a small and highly competitive business community at risk.</p><p>The court also found it troubling that, despite the seriousness of the allegations, the defendants had little to no evidence of any fraudulent conduct committed by Mr. Urquhart prior to launching the claim, and had failed to take even basic steps to investigate.</p><p>Although it was open to the court to make a partial award for special costs, Burnyeat J. awarded special costs throughout the proceeding, including the costs incurred at trial. This should serve as a caution to litigants to refrain from advancing frivolous or unfounded claims of fraud or deceit – or abandon them well in advance of trial - especially where a party's professional reputation is at stake. </p>6/28/2018 4:00:00 AM2018-06-28T04:00:00ZTrue1float;#6.00000000000000float;#2018.00000000000string;#Junefloat;#201806.000000000GP0|#11984f46-19e7-4b16-acce-db2c31f12bae;L0|#011984f46-19e7-4b16-acce-db2c31f12bae|Fraud and White Collar Crime;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0eb;GP0|#73bd9e71-b257-4720-b5f3-2bd7b78a546e;L0|#073bd9e71-b257-4720-b5f3-2bd7b78a546e|Litigation StrategyFraud and White Collar Crime;Litigation Strategy
Can you settle a securities enforcement proceeding in Alberta without admitting misconduct? http://blog.blg.com/theexchange/Lists/Blog Posts/DispForm.aspx?ID=356Can you settle a securities enforcement proceeding in Alberta without admitting misconduct? 356BLG Blog PostAndrew Pozzobonapozzobon@blg.com | Andrew Pozzobon | 693A30232E777C626C6763616E6164615C61706F7A7A6F626F6E i:0#.w|blgcanada\apozzobon The Alberta Securities Commission revised the Credit for Exemplary Cooperation in Enforcement Matters Policy (Policy 15-601) to allow respondents to enter into no-contest settlement agreements in certain circumstances without requiring an admission of misconduct. <p>The Alberta Securities Commission revised the <a href="http://www.albertasecurities.com/Regulatory%20Instruments/5402136-v1-ASC_Notice_re_ASC_Policy_15-601_updates.pdf" target="_blank">Credit for Exemplary Cooperation in Enforcement Matters Policy (Policy 15-601)</a> to allow respondents to enter into no-contest settlement agreements in certain circumstances without requiring an admission of misconduct. <br></p> The Alberta Securities Commission ("ASC") announced that it had revised the Credit for Exemplary Cooperation in Enforcement Matters Policy (Policy 15-601) to allow respondents to enter into no-contest settlement agreements in certain and limited circumstances. A no-contest settlement agreement permits the settlement of enforcement proceedings without requiring an admission by the respondent of misconduct. Until the introduction of no-contest settlement agreements, the ASC required an admission of guilt or culpability in order to settle an enforcement proceeding. The ASC announced that no-contest settlement agreements may be considered when respondents have self-reported, have fully cooperated with the ASC and have taken financial responsibility for their actions. The ASC stated that a "no-contest settlement agreement will not be considered if the ASC has reason to believe that a respondent has engaged in abusive or fraudulent misconduct, or if it is in the public interest to proceed with a quasicriminal or criminal investigation" and "it will always be in the sole discretion of the ASC whether a no-contest settlement agreement will be available in the circumstances". The introduction of no-contest settlement agreements brings Alberta in line with other jurisdictions, including the Ontario Securities Commission, had previously adopted no-contest settlements, and the U.S. Securities and Exchange Commission ("SEC"), which used no-contest settlement agreements to garner an impressive enforcement record. The ASC released a notice (found here), in which the ASC stated in that the inclusion no-contest settlement agreements is part of an effort to expand the ASC enforcement toolbox. However, there has been some criticism of no-contest settlement agreements as they allow respondents to avoid the consequences that would follow an admission of guilt, such as civil proceedings by investors. It will be interesting to see in what circumstances the ASC allows no-contest settlement agreements. <p>The Alberta Securities Commission ("ASC") announced that it had revised the <a href="http://www.albertasecurities.com/Regulatory%20Instruments/5402136-v1-ASC_Notice_re_ASC_Policy_15-601_updates.pdf" target="_blank">Credit for Exemplary Cooperation in Enforcement Matters Policy (Policy 15-601)</a> to allow respondents to enter into no-contest settlement agreements in certain and limited circumstances. </p><p>A no-contest settlement agreement permits the settlement of enforcement proceedings without requiring an admission by the respondent of misconduct. Until the introduction of no-contest settlement agreements, the ASC required an admission of guilt or culpability in order to settle an enforcement proceeding. </p><p>The ASC announced that no-contest settlement agreements may be considered when respondents have self-reported, have fully cooperated with the ASC and have taken financial responsibility for their actions. The ASC stated that a "no-contest settlement agreement will not be considered if the ASC has reason to believe that a respondent has engaged in abusive or fraudulent misconduct, or if it is in the public interest to proceed with a quasicriminal or criminal investigation" and "it will always be in the sole discretion of the ASC whether a no-contest settlement agreement will be available in the circumstances".</p><p>The introduction of no-contest settlement agreements brings Alberta in line with other jurisdictions, including the Ontario Securities Commission, had previously adopted no-contest settlements, and the U.S. Securities and Exchange Commission ("SEC"), which used no-contest settlement agreements to garner an impressive enforcement record. </p><p>The ASC released a notice (found <a href="http://www.albertasecurities.com/Regulatory%20Instruments/No%20Contest%20Settlement%20backgrounder%20final.pdf" target="_blank">here</a>), in which the ASC stated in that the inclusion no-contest settlement agreements is part of an effort to expand the ASC enforcement toolbox.  However, there has been some criticism of no-contest settlement agreements as they allow respondents to avoid the consequences that would follow an admission of guilt, such as civil proceedings by investors. It will be interesting to see in what circumstances the ASC allows no-contest settlement agreements.   <br></p><p><br></p>6/22/2018 4:00:00 AM2018-06-22T04:00:00ZTrue1float;#6.00000000000000float;#2018.00000000000string;#Junefloat;#201806.000000000GP0|#75eda1bb-5890-4b6b-aad7-b703245ec2e8;L0|#075eda1bb-5890-4b6b-aad7-b703245ec2e8|Securities: Litigation Regulatory and Compliance;GTSet|#efd3ce69-ee46-4bca-b6af-3daf96f6b0ebSecurities: Litigation Regulatory and Compliance