The Ontario Securities Commission and the “Active Market”

Peter Neufeld, B. Soc. Sc., J.D.Administrative Law, Appeals, Business Law, Business Litigation, Class Action Defence, Directors' and Officers' Liability, Finance Litigation, Investment | Financial Services, Professional Liability, Professional Services, Professions, Securities Litigation, Shareholder Disputes0 Comments

Determining what constitutes an “active market” for securities can have significant implications for Investment Dealers, Approved Persons, and other market participants facing civil lawsuits and regulatory scrutiny.  Such a determination provides ample assistance to investors seeking to quantify damages allegedly sustained through (1) misrepresentations in a company’s financial documents or (2) the negligence of their financial advisors. In Sutton (re), 2018 ONSEC 42, however, the failure to show an active market for securities proved devastating to the defence of a Chief Financial Officer (“CFO”) in charge of pricing those securities. Background  As CFO of First Leaside Securities Inc. (“FLSI”), Brian Sutton’s (“Mr. Sutton”) position required him to assess the price of certain unlisted securities (“Fund Units”) issued by three limited partnerships (“Funds”). In pursuit of meeting these obligations,  Mr. Sutton relied on the Fund Units’ allegedly active market to ascribe an appropriate price. The Industry Investment Regulatory Organization of Canada (“IIROC”) … Read More

Ontario Appellate Court Recognizes Adjusters’ Agency Immunity

R. Lee Akazaki, C.S., B.A. (Hons.), J.D.Agents and Brokers, Appeals, Appellate Advocacy, Insurance, Professional Indemnity, Professional Liability, Professions0 Comments

Independent insurance adjusters face unprecedented professional pressures and competing demands from stakeholders.  As the front-line representatives of insurance companies in the aftermath of an accident or loss, they deal directly with accident victims, property owners and insurance service providers.  Many unnecessary disputes erupt over misunderstandings about the adjuster’s role as an intermediary.  As I explained in a 2014 article in Claims Canada, “Addressing E&O Exposures: How adjusters can avoid the squeeze of professional liability claims,” there are useful litigation-prevention strategies for training adjusters to explain their role to stakeholders. Despite the practical and principled impediments to parties suing insurance adjusters, litigants and their lawyers in insurance cases often sue them, preferring to draw their weapons first and to ask the important questions later.  What insurance adjusters have lacked in cases where parties have sued them in breach of contract cases together with insurers is a specific legal precedent barring many such actions … Read More

Ontario Court Decides on Appropriate Use of Mini-Trial in Summary Judgment Motions

Nick P. Poon, B.Sc. (Hons.), B.A., J.D.Civil Litigation, Commercial, Contract Disputes, Misrepresentation, Negligence, Professional Liability, Real Estate Agent and Broker, Real Estate Litigation, Summary Judgment0 Comments

In Crisafi v. Urban Landmark Realty Inc., 2018 ONSC 191, the Ontario Superior Court of Justice addressed a summary judgment motion brought in a real estate litigation matter and provided guidance on when the Court will use its enhanced fact-finding powers set out in the 2010 amendments. Background This case involved a claim by a real estate agent against his former real estate brokerage for unpaid real estate commissions in the amount of $60,000.  The brokerage took the position that the agent breached his contractual, statutory and fiduciary duties to its clients and was negligent in handling four transactions which caused it to suffer damages. The brokerage argued that the agent failed to properly advise one of its clients while in a multiple representation situation including the anticipated sale price of the house and an estimate of whether the client could afford to purchase a subsequent property.  The house ended up sitting on the market even after several reductions in the listing price.  As is commonplace in the industry, this resulted in … Read More