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GET YOUR MONEY BACK! Misconduct and malpractice. Investment industry "best and worst practices". Information to improve public protection. Expert witness services for industry and investors. Forensic investment analysis. • View topic - Quebec leads the country on investor protection

Quebec leads the country on investor protection

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Re: Quebec leads the country on investor protection

Postby admin » Sun Feb 16, 2014 11:49 pm

Quebec is simply living in another world. A world where securities regulators actually try to protect the public interest, while in the rest of Canada, securities regulators are a wholly owned, fully paid "damage control" subsidiary of the investment industry......




http://www.jdsupra.com/post/fileServer. ... 7ec2fc.pdf

A ROADMAP FOR STRENGTHENING THE PROTECTION OF QUEBEC MUTUAL FUND INVESTORS
A SUBMISSION
TO THE
AUTORITÉ DES MARCHÉS FINANCIERS

February 20th, 2012


Again, BRAVO Quebec. Thank you.
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Re: Quebec leads the country on investor protection

Postby admin » Thu Dec 13, 2012 8:22 pm

Screen Shot 2012-12-13 at 8.17.35 PM.png
Petition to The Quebec National Assembly:

Modifications to the Financial Services Compensation Fund of l'Autorité des marchés financiers (AMF) (Quebec provincial securities commission)

Petition text

CONSIDERING THAT Canada ranked fourth in a 2009 Price Waterhouse global economic crime survey and that a large number of fraud cases, especially Ponzi schemes occurred in Quebec;

CONSIDERING the financial loss to victims, many of whom lost their entire life savings for retirement resulting in a decrease in buying power and reliance on the Old Age Security supplement;

CONSIDERING the emotional, psychological and physical impact on the victims and their families;

CONSIDERING the lack of resources, budget and expertise available to police to investigate financial fraud and prosecute the perpetrators;

CONSIDERING the inability of the AMF to protect investors by ensuring that a registered broker is licensed to sell a specific financial product;

CONSIDERING THAT the AMF, police and regulators do not share information in order to prevent, detect and prosecute white collar crimes;

CONSIDERING the limitations of the Financial Services Compensation Fund, which provides coverage only for mutual funds and insurance products;

We, the undersigned, request that the AMF make victim compensation a priority, and that the Financial Services Compensation Fund also cover losses arising from fraud or insolvency related to a financial product sold by a registered member of the AMF, regardless of the type of product.



https://www.assnat.qc.ca/en/exprimez-votre-opinion/petition/Petition-3455/index.html


quebec, petition, amf
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Re: Quebec leads the country on investor protection

Postby admin » Mon Nov 12, 2012 6:09 pm

1980_2009_08_035.JPG


Janet Watson 4:20pm Nov 12
I have just heard that our petition to have the AMF Compensation Fund expanded to include products other than mutual funds and insurance products has been accepted by the National Assembly. I will let everyone know how they can go about signing this petition once it's on line. Perhaps we might even get some media attention out of this. It will show that we may be victims but we are trying to make a difference for future victims! Thanks to those who have helped prepare and translate this project! The English version is as follows:

PETITION TO NATIONAL ASSEMBLY

REQUEST FOR MODIFICATIONS TO THE QUÉBEC'S FINANCIAL SERVICES COMPENSATION FUND OF L’AUTORITÉ DES MARCHÉS FINANCIERS

Presented by the victims of the Mount Real fraud who lost $130 million in 2005.

Considering that Canada ranked fourth in a 2009 Price Waterhouse global economic crime survey and

Considering the large number of fraud cases, especially Ponzi schemes occurring in Quebec and

Considering the financial loss to victims, many of whom lost their entire life savings for retirement resulting in a decrease in buying power and reliance on the Old Age Security supplement, and

Considering the emotional, psychological and physical impact on the victims and their families and

Considering the lack of resources, budget and expertise available to police and the AMF to investigate financial fraud and prosecute the perpetrators and

Considering the inability of the AMF to protect investors by ensuring that a registered broker is licensed to sell a specific financial product, and

Considering that the AMF, police and regulators in Quebec do not share information in order to prevent, detect and prosecute white collar crimes, and

Considering the limitations of the Québec's Financial Services Compensation Fund which provides coverage only for mutual funds and insurance products

We request that the AMF make victim compensation a priority, and that the Québec's Financial Services Compensation Fund also cover losses arising from fraud or insolvency related to a financial product sold by a registered member of the AMF, regardless of the type of product.
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Re: Quebec leads the country on investor protection

Postby admin » Fri May 13, 2011 2:08 pm

Quebec to pay $1.6 million in compensation to Morinville investors
Quebec's securities regulator, the Autorité des marchés financiers ,conducted its assessment of the 42 claims received between August 2010 and January 2011. The evidence showed overwhelmingly that Carole Morinville used an investment scam and her relationship of trust with 28 investors to elicit funds. The evidence also showed that Morinville cashed the amounts entrusted to her by these 28 claimants and seemingly never invested any of the funds. As a result of this assessment, the 28 investors will receive compensation for their investment loss from the Fonds d'indemnisation des services financiers, the province’s compensation fund. Under fund rules, the maximum amount of compensation payable is $200,000 per claim.The AMF says it will take the necessary steps to recover from Morinville the amounts reimbursed to the victims. Source: http://www.investmentexecutive.com/clie ... ilNews.asp? Id=58018&cat=8&IdSection=8&PageMem=&nbNews=&IdPub Ontario does not have such a investor compensation fund.
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Re: Quebec leads the country on investor protection

Postby admin » Tue Mar 15, 2011 9:11 pm

God Damn! Those Quebec folks are at least 30 years ahead of the rest of the country.

What gives?

see story:

** Media News ** Quebec police arrest suspected mastermind in alleged Cinar fraud: John Xanthoudakis

by: Rheal Seguin, The Globe & Mail, Tuesday, March 15, 2011

Quebec police have arrested the fourth suspect in a multimillion-dollar scandal that brought down Cinar, a once-successful Montreal-based animator.

John Xanthoudakis was arrested Tuesday morning at Montreal’s Pierre-Elliott-Trudeau airport, where he arrived on a flight from Bermuda. Mr. Xanthoudakis was handcuffed and taken into custody, police said.

Mr. Xanthoudakis is the suspected mastermind behind the alleged fraud involving the animation company, which has been at the centre of a 10-year police investigation.

Last week, police arrested Cinar president Ronald Weinberg, who has been charged along with Mr. Xanthoudakis and two other suspects with 36 fraud- and forgery-related charges dating back to 2000 – when $120-million went missing from the company and was allegedly funnelled into offshore bank accounts in the Bahamas.

Mr. Xanthoudakis is the former president of Norshield Financial Group, which went bankrupt in 2005. Cinar shareholders sued Norshield in an attempt to recoup the money, but Mr. Xanthoudakis denied any wrongdoing. Police suspect that Mr. Xanthoudakis helped Mr. Weinberg set up a fraudulent scheme that eventually brought down one of the jewels of the entertainment world.

None of the allegations against Mr. Xanthoudakis have been tested in court. He is scheduled to appear before a justice on Tuesday afternoon.

Last week, Mr. Weinberg was released on bail and ordered to appear in court on May 4. Court appearances have also been set for the two other men accused in the alleged scam. Cinar’s former chief financial officer, Hasanaim Panju, is accused of helping to redirect company funds to offshore accounts.

The former president of investment firm Mount Real, Lino Pasquale Matteo, is accused of using his company to cover-up the scam. Mr. Panju and Mr. Matteo were arrested two weeks ago.

Along with Mr. Weinberg, once a major figure in the entertainment business, the three associates used “deceit, falsehood and other fraudulent means” to drain company funds, according to police warrants.

.........please read the article online at - http://www.theglobeandmail.com/news/nat ... le1942492/


Other Related Media News

Police arrest fourth suspect in Cinar fraud case - CBC News - http://www.cbc.ca/news/canada/montreal/ ... fraud.html

Fourth man arrested in alleged $120M Cinar fraud - CTV National News - http://www.ctv.ca/CTVNews/Canada/201103 ... ud-110315/

------------------------------------

It is heart warming to see that the police here in Quebec eventually gets their man, with the arrest today of John Xanthoudakis, once the mighty President of the now defunct Norshield Financial Group.

Next step will be the criminal trial of this notorious gang of "alleged" fraudsters.

If Bill C-59 passes in time, then these fellows, once properly convicted, will no longer be eligible to receive early accelerated parole at the 1/6th mark in their prison term.

Finally, we are starting to see the tide change in Canada against financial fraudsters.


Yours on the committee,

Jerry, Kevin, Danielle, Cherie, Ginny, Peter, Brook, and Joey

(advocate comments.......in my home town, I am not even permitted (twice requested in writing, twice ignored) to speak about white collar crime to my own city of Lethbridge police commission. The Chairman of the commission is an Investors Group salesman, and the Mayor is the man I feel most responsible for hiding $30 million in foolish investments made (with taxpayer money) in sub prime mortgage investments. (I guess white collar crime is a topic somewhat "sensitive" for these guys) This is a good example of why I use the word "systemic" to describe how widespread the fear, and the resulting coverup of some abuses in our society.
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Re: Quebec leads the country on investor protection

Postby admin » Fri Mar 11, 2011 1:46 pm

only in Quebec:

do people (financial people) get arrested

only in Quebec: do lawsuits go in favor of investors over corrupt corps of security commissions

only in Quebec: do laws exist to prevent frivolous lawsuits (see slapp suit)

only in Quebec: do consumer protection laws apply to financial products

Why is quebec so much more advanced than the rest of us? Lets talk corruption, seriously.

** Media News ** Cinar founder Weinberg charged with fraud, released on bail

by: Sue Montgomery, The Gazette, Friday, March 11, 2011

The founder and former president of defunct Montreal-based animation studio Cinar has been charged with fraud.

Ronald Weinberg, 49, appeared in Quebec court Friday and was released on $140,000 bail. He is to be back in court May 4.

Weinberg, along with the company's former chief financial officer, is alleged to have published a prospectus, dated March 3, 1999, that they knew to be false with intent to induce people to become shareholders in Cinar Corp.

Weinberg is one of four men to face a combined 36 charges in connection with the fraud scandal that dates back to 1998.

Millions of dollars were allegedly diverted from the former animation company to Bahamian investment companies with links to Montreal's Norshield Financial Group.

Weinberg was arrested at Trudeau Airport Thursday night when he returned from the Dominican Republic. Already arraigned are Richmond Hill, Ont., resident Hasanain Panju, 44, Cinar’s former chief financial officer, and Lino Matteo, 48, former president of Mount Real. Police are searching for Norshield president John Xanthoudakis, 52.

.......please read the article online at - http://www.montrealgazette.com/Weinberg ... story.html


Other Related Media News

Former Cinar president surrenders to police over fraud charges - Globe & Mail - http://www.theglobeandmail.com/report-o ... le1937960/
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Re: Quebec leads the country on investor protection

Postby admin » Wed Mar 02, 2011 3:03 pm

BREAKING NEWS ALERT...............(QUEBEC also leads the country on police protection on large scale financial fraud)

Sûreté du Québec raids Cinar offices - Four people faces 36 charges of fraud

by: Jason Magder & Paul Cherry, The Gazette, Wednesday, March 2, 2011

A long-awaited arrest was made today in the Cinar/Norshield fraud scandal, Sûreté du Québec police said Wednesday afternoon.

Four (4) people are facing 36 charges of fraud totalling about $120 million.

In a statement, the SQ said it arrested Hasanain Panju, 58, former chief financial officer of Cinar.

The SQ also issued warrants for the arrest of Ronald A. Weinberg, 59, former president of Cinar, John Xanthoudakis, 52, president of Norshield Financial Group, and Lino Pasquale Matteo, 44, president of Mount Real.

Included among the charges are allegations of fraud, forgery and making or circulating a false prospectus.

For example, one charge alleges Panju and Weinberg used fraudulent means to defraud Cinar Corp. through investments made with Pro-Genesis between July 1998 and November 1999.

The statement said that police have evidence that Weinberg and Panju invested funds without the authorization of Cinar. It also said Xanthoudakis allowed them to invest in the Bahamas, while Pasquale helped hide the traces of the investment.

SQ Sgt. Martine Isabelle said the investigation dates back to 2003.

...........please read the article online at - http://www.montrealgazette.com/S%C3%BBr ... .htmlOther

Other Media News
GlobalTV - http://www.globalmontreal.com/arrests+m ... story.html
Canoe.ca - http://money.canoe.ca/money/business/ca ... 61910.html

For the latest news reports on this story, check out Google news alerts on the internet:

http://news.google.ca/news/more?hl=en&b ... CCsQqgIwAA



(once again, I ask. What is it about Quebec police, Quebec prosecutors, and Quebec Securities regulation that puts them ahead of the other provinces in professionalism?)
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Re: Quebec leads the country on investor protection

Postby admin » Tue Dec 08, 2009 11:17 pm

Bravo again to Quebec. How do I join your province?

Once again Quebec shows an ability to place the public interest and best practices ahead of selfish financial lobby efforts and the interests of greed.

What in the hell makes Quebec so far forward in social justice thinking?

Give that province a medal.

Larry Elford

Quebec to form squad to fight financial exploitation of seniors

The Montreal Gazette, December 8, 2009

The Quebec government rolled out a plan to fight the financial exploitation of seniors on Tuesday, saying far too many seniors are losing their savings to fraudsters like Vincent Lacroix and Earl Jones.

A four-page pamphlet advising seniors on how to avoid being a fraud victim will be published in several newspapers across Quebec on Saturday including The Gazette. About 50,000 copies of the pamphlet will be distributed to seniors’ organizations.
“Seniors groups have been asking the government for help,” Marguerite Blais, the Quebec minister responsible for seniors, said Tuesday at a press conference in Montreal.

Quebec Justice Minister Kathleen Weil said the Quebec Human Rights Commission will put together a squad of six (6) investigators who will look into allegations of financial exploitation. The squad will be up and running in April.

In the past eight months, the commission has received 50 requests to intervene in cases of alleged financial exploitation of seniors.

“As soon as someone calls with doubts about someone or suspicious behaviour, the squad will intervene and do an inquiry,” Weil said. “If it looks criminal, they will advise the police.”

..............article online at http://www.montrealgazette.com/Quebec+f ... story.html
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Re: Quebec leads the country on investor protection

Postby admin » Thu Jul 30, 2009 11:59 pm

found in the Globe and Mail, for Wednesday, July 29, 2009

An advertisement for support staff at the Quebec Securities Commission, the AUTORITE DES MARCHES FINANCIERS.

It was headed by the following:

"IF THERE'S A REGULATION, IT NEEDS TO BE FOLLOWED.
SOUND SENSIBLE?
THEN YOU MIGHT BE THE ONE WE ARE LOOKING FOR"

I applaud this securities regulator for setting the pace, for some of the "best practices" in the country. I find them so far ahead of the others that those poor commissions in other parts do not even know they are in the game. I wish them the best and I hope that we learn from them and get the protection of our economic lifeblood out of the hands of commissions governed by the "three C's". Corruption, cronyism, and connections.

Thanks again Quebec for not following your peers, but instead leading by good example.
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Re: Quebec leads the country on investor protection

Postby admin » Tue Jan 27, 2009 11:30 am

I was interested to receive an article in my e-mail this morning about the Expert Panel Report. I visited the Globe website and attempted to submit a comment only to discover that comments were closed. However, they had received one comment which seemed to be on the mark.

Was the reason for only one comment that no one is interested? Or do people realize that these comments do not produce results? Or were comments closed down prematurely?

In any case I wrote a letter to the editor. A copy of the article, the one comment and my letter is appended.

We have often stated we need a national regulator based upon the Quebec model which combines the regulators of the four pillars of finance under one authority.

In dealing with the investment industry it is difficult to use the right words. A national securities regulator is not the answer. When is a financial product not a security? Maybe industry terminology is a "System Wide Regulator"? Or would "Quebec model national regulator" cover it?

The reason SIPA asks for a national Investor Protection Authority with a sole mandate for investor protection is to change the focus. Keeping in mind that the New York Attorney General made waves by pursuing the industry with his Bureau for Investment Protection rather than depending upon the regulators.

Having separate regulators for banks, insurance companies, mutual fund companies, fund dealers, securities dealers, etc. coupled with diverse federal and provincial jurisdictions has led to the confused approach to investment regulation in Canada today. But regulation without enforcement and protection mean little to consumer/investors

In Quebec there is one regulator. The Authority combines all the previous regulators It also provides investor protection ... and restitution. Why can't all Canadians benefit from a similar regulator?

Investors with a complaint have one source. It does not matter what they were sold or who sold it to them. Quebecers know where to go. Not only do they know where to go but the Authority will decide if they have been wronged. Not only that but they will get their money back. There is no need to run the gauntlet of trying to get restitution from the industry or its agencies, nor to erode your resources by taking civil action.

There are tons of people out there who know what is going down. These tend to be those who have been clipped by industry. Many have been gagged.

Regards,

Stan Buell, President
Small Investor Protection Association
P.O.Box 325, Markham, ON, L3P 3J8
website: www.sipa.ca
e-mail: stanbuell@rogers.com
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Postby admin » Thu Jan 31, 2008 1:09 am

Quebec courts send one of the figures behind Norbourg funds to jail for 12 years.

At the same time, David Wilson, chair of the OSC tells the media that Canadians do not want to see jail terms for white collar criminals.

Is it Quebec who is out of step? Or is David Wilson still trying to walk on both sides of the street, having come from decades at a bank owned brokerage firm.

Thank you once again to Quebec for setting an example for us to try and follow. When we get rid of some of the old boys club who are clogging the arteries of Canadian finance, we will try and catch up to you.
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Postby admin » Fri Jan 18, 2008 9:49 pm

quebec is also the only province I am aware of that provides legislated protection against workplace abuse, bullying, harassment of any kind

way to go once again Quebec. What are you putting in the water out there to make your citizens better cared for in these areas than any other province in the country?

see the Jan 18, 2008 posting in the forum topic WHISTLEBLOWERS for an idea of why this kind of workplace legislation is necessary.
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Postby admin » Fri Jan 18, 2008 9:46 pm

Enclosed for your information is the 15jan08 decision of the Quebec Superior Court:

Gilles Dussault v. Levesque Beaubien Geoffrion Inc. and Financiere Banque Nationale Inc.
No. 500-05-032455-972
January 15, 2008


Quebec Superior Court Decision dated 15jan08: Gilles Dussault v. Levesque Beaubien Geoffrion Inc. and Financiere Banque Nationale Inc. (No. 500-05-032455-972)



C- Conclusions

172 FOR THESE REASONS, THE COURT:

173 ORDERS the Defendant in Continuance of Suit to pay to the Plaintiff the amount of $382,785.19, with interest and indemnity from the date of service in accordance with Art. 1619, C.C.Q.;

174 ORDERS the Defendant in Continuance of Suit to pay to the Plaintiff the expenses of the Plaintiff’s expert fixed in the amount of $31,135.81;

175 WITH COSTS to the Plaintiff.


Other Paragraphs of Interest:

18 Unlike her father, Ms. France Roy was new to the stock brokerage business. She started in 1992 with the Firm after successfully completing the requisite courses. She was at that time 33 years of age and had previously been in marketing in the ski equipment business.

66 Secondly, Dr. Dussault needed to be advised clearly and needed to understand clearly that – unless he fixed a price at the outset (known as a “stop loss”) at which he mandated the Firm to undertake the repurchase – his potential exposure was great if the Bonds’ market price went up instead of down.[1] ([1] See Laflamme v. Prudential-Bache Commodities Canada Ltd., [2000] 1 S.C.R. 638 at para. 28 and 34.)

74 The Court accepts the evidence of Expert Jean-Claude Dorval that the level of sophistication required to understand the 8-23 Transaction was far in excess of Dr. Dussault’s investment knowledge because of the sophistication required to understand the market factors.

82 Quebec jurisprudence makes it clear that investment counsellors have an ongoing obligation not only to advise but to dissuade a client from an unsuitable transaction.[2] Dr. Dussault should have been dissuaded. ([1] Markarian v. Marchés mondiaux CIBC inc., 2006 QCCS 3314 (S.C.) at para. 342.)

88 Under the present heading, the Court will determine whether the Firm bears any legal liability for the actions or omissions of other of its employees, essentially management and its Compliance Department, for the fact that the loss claimed by Dr. Dussault did not occur overnight but was a long, gradual accumulation over this period.

90 Based on this evidence and the expert opinion of Mr. Jean-Claude Dorval, the Court concludes that while the recommendation of the Roys was the "sine qua non", absent which there would have been no transaction, the fact remains that failure to take appropriate actions at other relevant times within the two year five month period produced greater losses than otherwise and were the fault of the Firm.

91 Mr. Guy Roby was in charge of the Firm’s Compliance Department. Mr. Roby did not testify at trial but his Examination on Discovery was filed in its entirety by Dr. Dussault.[3]

109 After the Compliance Department raised the concerns in relation to the 8-23 Transaction, the Firm should have resolved the concerns immediately to protect the interests of their client, Dr. Dussault.

119 The interests of Dr. Dussault and the continuing losses he was suffering should have been a preoccupation for the Firm. Instead, the Firm showed a singular interest in its own bottom line.[4]

128 Dr. Dussault was like a man alone in a rowboat in a storm in the mid-Atlantic. The Firm had always been his guiding light in the past and now that the waves were towering over him, the beacon was gone. The Court is at a loss to understand why the Firm did not put Dr. Dussault’s interests first.

131 In conclusion, these other employees of the Firm had ample opportunity to stop, if not avoid, all the damages which the original breach by the Roys had caused. Not only did management and compliance not come to the assistance of Dr. Dussault, they did not come to the assistance early on of their own employees, Mr. Roy and Ms. France Roy who each made $2,500 from the 8-23 Transaction while the Firm made $5,000 in commissions.

133 For evidential purposes and to avoid misinterpretation, this should have been done in writing. Put simply, the Firm did not seek to protect Dr. Dussault's interests where the risk being run was all his. A clear unequivocal recommendation as to when he should close his position was required. The Firm is not held to a standard of the perfect recommendation through hindsight. This was not an obligation of result but one of means. Its recommendation need only be reasonable but it must be given and given clearly.

138 To ratify the 8-23 Transaction, the Firm would need to show that Dr. Dussault had been fully informed of the risk but was also fully informed and able to make his own intelligent decision as to the time to close his position and that he understood this advice.[5]
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Postby admin » Wed Dec 19, 2007 5:22 pm

Quebec is also one of the few provinces that has workplace protection laws against bullying, harassement and psychological abuse of employees.

This kind of thinking helps to protect whistleblowers who speak out on matters not in the public interest. With laws like this protecting honest people, bad corporations or agencies are less likely to get away with abusing truth tellers.

Bad guys lose when honesty and transparency are allowed into the system. Way to go Quebec.

Now can anyone tell me why Quebec leads the rest of the country in such public protective matters? Does it have anything to say about Ottawa? About our federal government being "captured" or dominated by industry interests, special interests?

This Albertan is proud of what Quebec is doing. They are leading the country at setting the bar higher and moving towards "best practices", while the rest of the provinces seem content to stay with "best personal compensation".
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Postby admin » Wed Dec 19, 2007 5:13 pm

Seller beware in Quebec law
Liability Ruling

Julius Melnitzer, Financial Post
Published: Wednesday, December 19, 2007

JOHN MAHONEY, CANWEST NEWS FILESOlivier Kott.
Most of the time, a deal is a deal -- especially when a sophisticated buyer and seller are involved. Except, it seems, when the product liability provisions of Quebec's Civil Code govern the contract.

That's what springs from the Supreme Court of Canada's decision in ABB Inc. v. Domtar Inc., which significantly limits the extent to which manufacturers and sellers can reduce their liability under Quebec law for latent defects in their product.

The dynamics of negotiating commercial contracts when Quebec law is in play are now bound to change.

"Manufacturers and other professional sellers will have to be more open about their products, and purchasers will have to be clearer about their needs and specifications," says Olivier Kott, of the Ogilvy Renault LLP team in Montreal that represented Domtar.

ABB also means that limitation of liability clauses in non-consumer contracts governed by Quebec's Civil Code are less likely to stand up than those governed by the laws of the common-law provinces. In situations where a non-Quebec entity is involved, parties interested in apportioning risk may wish to select the laws of another jurisdiction to govern their contract.

"The risk is that Quebec law could be marginalized in an economy that relies increasingly on cross-border transactions," says Eric Mongeau of Stikeman Elliott LLP, who represented ABB, Alstom and Chubb Insurance.

However that may be, the stakes have gone up when negotiating choice of law clauses.

"What's essential is that parties are aware of the differences that clearly exist between the civil and the common law so that they can act accordingly," Mr. Kott says.

In the ABB case, the high court upheld a $13.5-million award to Domtar for losses suffered as a result of a defective superboiler manufactured by Combustion Engineering, which later became ABB. This despite the fact that CE, then Canada's largest superboiler manufacturer, had been careful to negotiate a clause that limited its liability for defects when it sold the boiler to Domtar in 1984.

"ABB establishes a very heavy burden on a seller who wishes to escape liability for a latent defect by relying on an exclusion clause even when a sophisticated purchaser is involved," Mr. Kott says.

Domtar had put the boiler into service in 1988. Eighteen months later, tests by Domtar revealed hundred of leaks and cracks in the boiler's tubes. When negotiations over a permanent solution broke down, Domtar bought a new boiler from another source and sued CE.

CE relied on the limitation of liability in the contract of sale. However, Domtar invoked Quebec's Civil Code, which prevents sellers from relying on such limitations when they know about the impugned defects or are presumed to know about it.

As the Supreme Court saw, CE was a "professional seller" and therefore subject to the presumption that it knew about the defect. The fact that Domtar was hardly an unsophisticated buyer -- indeed, it had retained an expert to assist with the purchase--did not displace the presumption.

"The court rejected the argument that Domtar was obligated to enquire about the characteristics of the product and was bound by the limitation if it had not done so," Mr. Kott says.

Because neither Domtar nor its expert knew of the causes for the excessive cracking, the burden was on CE to show it did not know about the defect and its lack of knowledge was justified.

"In other words, a seller who relies on a limitation of liability must show that it could not have discovered the defect even if it had taken every precaution that the buyer would be entitled to expect a reasonable seller to take in the same circumstances," says Martin Sheehan of Fasken Martineau Dumoulin LLP.

The court recognized that it was setting the bar very high for contracts governed by Quebec law.

"Several authors have observed that it is very difficult for a manufacturer to rebut this presumption by showing the court that it was impossible to know about the defect," the court stated. "Indeed, it has been pointed out that there are no known cases in which a manufacturer has in fact succeeded in rebutting the presumption."

The court did, however, identify two situations where it would be possible for manufacturers to rebut the presumption. The first involved proving that the buyer, a third person or a force majeure caused the defect. The second allowed the seller to invoke development risk.

"Development risk means that the seller can avoid liability if it would have been impossible to detect the defect given the state of scientific and technical knowledge when it put the goods on the market," Mr. Sheehan says.

But the court ruled CE had not met the standard and it was therefore responsible for all of Domtar's direct losses.

(Advocate comments........with strength like these laws, perhaps financial service firms would not be quite as quick to sell knowingly tainted investments (bad income trusts, ABCP, FMF, Portus, Eatons-like products) to a vulnerable and trusting public. Many people are now just starting to figure out that the financial services industry is "above the law" by virtue of no access to public protection at the securities commission, and delegation to "self" regulatory agencies of all customer complaints. Similar to sending upset Iraqi people to an agency like "Blackwater" to make a complaint about human rights abuse.)
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