Civil or Criminal Actions against companies or regulators

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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Thu Mar 26, 2020 7:30 am ... ry-breach/?

Salesforce Sued For 401k Fiduciary Breach
The plan allegedly lost millions of dollars in offering investment options that had similar or identical characteristics to other lower-priced investment options

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by John Sullivan, Editor-In-Chief March 16, 2020 in 401k Fiduciary, Fiduciary Litigation, Your 401k News
401k, retirement, Salesforce, ERISA, fiduciary
Salesforce Tower in San Francisco.

Salesforce is the latest target of a class-action suit filed on behalf of plan participants alleging a fiduciary breach.

Echoing Tibble v. Edison International, which was argued before the Supreme Court by retirement plan litigator Jerome Schlichter, plaintiffs allege the San Francisco-based tech giant offered higher-priced mutual fund share classes in its investment menu when cheaper options were available due to the plan’s size and economies of scale.

The suit, filed by participants Tim Davis, Gregor Miguel and Amanda Bredlow, names, its board of directors, CEO Marc Benioff and the investment advisory committee, among others.

More expensive active funds
“The Plan has retained several actively-managed funds as Plan investment options despite the fact that these funds charged grossly excessive fees compared with comparable or superior alternatives, and despite ample evidence available to a reasonable fiduciary that these funds had become imprudent due to their high costs,” according to the filing.

Indeed, in 2018, “19 out of 25 core investments, or almost 80% (not including money markets and investments available through brokerage link), were actively managed,” it claims.

“During the Class Period, the Plan lost millions of dollars in offering investment options that had similar or identical characteristics to other lower-priced investment options. The funds in the plan allegedly stayed relatively unchanged from 2013 until 2019.”

Again, using 2018 as an example, plaintiffs claim almost half of the plan’s core investments (including all but one of the target date funds) were “much more expensive than comparable investments found in similarly-sized plans (plans having over a billion dollars in assets). The expense ratios for these funds were in some cases up to 135% (in the case of the Fidelity Contra Class K) above the median expense ratios in the same category.”

“There is no good-faith explanation for utilizing high-cost share classes when lower-cost share classes are available for the exact same investment,” the suit concludes. “The Plan did not receive any additional services or benefits based on its use of more expensive share classes; the only consequence was higher costs for Plan participants.”
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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Mon Mar 02, 2020 4:12 pm

Investors prevail in $100-million BMO class action[/url]

Court finds registered account investors were charged undisclosed currency fees for 10 years

By: James Langton March 2, 2020 11:53
A gavel rests on its sounding block with a several law books and a justice scale out of fucus in the background. A cool blue cast dominates the scene.
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An Ontario court has ruled that registered investors were charged more than $100 million in undisclosed currency conversion fees over 10 years by several Bank of Montreal subsidiaries.

In a class action suit against several BMO firms — BMO Nesbitt Burns, BMO InvestorLine, and BMO Trust — Justice Edward Belobaba of Ontario’s Superior Court of Justice found in favour of investors who converted foreign currencies in their RRSPs, TFSAs and RESPs.

The court found that the firms charged undisclosed markups on currency transactions in clients’ registered accounts between 2001 and 2011.
Investors were prohibited from holding foreign currencies in registered accounts until federal tax law changed in June 2001. But it was 2011 before the firms’ systems actually enabled investors to hold foreign currencies in their registered accounts.

So for 10 years, the firms charged markups on currency transactions that were not explicitly disclosed, the court found.

Belobaba wrote that while clients could have discovered these costs with some research, the actual markup (in either percentage terms or basis points) was not disclosed directly to clients. This prevented comparison shopping, the court noted.

“I note that the defendants had no difficulty providing written disclosure about the other fees that were being charged to the trust accounts — such as annual administration fees, trading commissions, and interest charges,” Belobaba wrote in the ruling. “It would have been dead simple to add information about the amounts of the markups on foreign currency conversions. But this was never done and, it appears, has still not been done.”

The court concluded that the firms breached their trust agreement with and their fiduciary duty to investors. It ruled that investors are entitled to the profits earned by the firms on the $102.9 million in undisclosed fees that were charged during the 10 years.

The final amount will be determined by a reference back to the court.

The court declined to impose punitive damages in the case, saying that there was “no evidence of any malicious, oppressive or high-handed conduct” by the firms.

“The decision underscores the importance of the BMO companies’ trust obligations, and shows the effectiveness of class actions in addressing such systematic breaches,”
said Odette Soriano, partner with Paliare Roland Rosenberg Rothstein LLP, in a statement. Soriano’s firm represented the plaintiff investors.

“As the judge made clear, financial institutions must take their trust and fiduciary obligations very seriously, particularly in the context of self-payment. They will be held to account if they don’t,”
she added.
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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Fri Feb 28, 2020 4:44 pm

Ontario court finds breach of trust by BMO Nesbitt Burns, BMO InvestorLine, and BMO Trust against their RRSP account holders and holders of similar registered accounts

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Paliare Roland Rosenberg Rothstein LLP
Feb 28, 2020, 17:11 ET
TORONTO, Feb. 28, 2020 /CNW/ - An Ontario judge found BMO Nesbitt Burns Inc., BMO InvestorLine Inc., and BMO Trust Company (collectively "the BMO companies") committed breach of trust and breach of fiduciary duty against a class of approximately 200,000 registered account holders by taking approximately $102.9 million in undisclosed fees. The Court has ordered the BMO companies to disgorge the profits generated on these fees.

Mr. Justice Edward P. Belobaba’s decision ... ry-28-2020

The case involves undisclosed fees charged to customers of the BMO companies on currency conversions in registered accounts, such as RRSPs, RESPs, and TFSAs, over a 10-year period.

After almost 14 years of litigation, in January 2020, the Superior Court of Justice heard a summary judgment motion. The Court released its decision today, finding in favour of the Class and ordering disgorgement of profits. The precise amount is to be determined on a reference.

The Class includes individuals resident in Canada who held registered accounts, such as RRSPs, RESPs, and TFSAs, administered by BMO Trust and had a currency conversion performed in their account between June 14, 2001 and September 6, 2011 at BMO InvestorLine, and between October 1, 2002 and September 6, 2011 at Nesbitt Burns.

The Court found that BMO Nesbitt Burns and BMO InvestorLine systematically imposed an undisclosed mark up on the exchange rate they charged on currency conversions in the registered accounts. The Court held that the failure to disclose the markup was a breach of the defendants' own trust agreements and a breach of fiduciary duty.

As the Court said: "It is fundamental to the viability of trust law in general, and banking and investment relationships in particular, that trust and fiduciary duties be taken seriously…"

James R. MacDonald, one of the representative plaintiffs in the case, said of the result: "I see this as a real victory for customers of these BMO companies. These customers include hard working Canadians who were just trying to save for a better life, for their retirement or for their children's education. They trusted these BMO companies with their hard-earned money. The decision is the result of over a decade of work to bring justice to the many people in the Class against these large financial institutions."

The Class is represented by Paliare Roland Rosenberg Rothstein LLP. Odette Soriano, one of the lawyers for the Class, said, "The decision underscores the importance of the BMO companies' trust obligations, and shows the effectiveness of class actions in addressing such systematic breaches. As the judge made clear, financial institutions must take their trust and fiduciary obligations very seriously, particularly in the context of self-payment. They will be held to account if they don't."

Further information about the claim, including a copy of the court's reasons for its decision is available at: ... treal-rrsp.

SOURCE Paliare Roland Rosenberg Rothstein LLP

For further information: Please contact Odette Soriano and Jeff Larry at Paliare Roland Rosenberg Rothstein LLP. Ms. Soriano may be reached at 416-646-4306 or Mr. Larry may be reached at 416-646-4330 or ... 08151.html
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Civil, Criminal or Private Prosecutions

Postby admin » Sun Jan 26, 2020 6:20 pm


Filing an Information before the courts as a private citizen
A rarely used but potentially effective citizen’s right to pursue justice, even if no police or crown will help. (or especially in areas where police and Crown Prosecutors are of little help)

Norm Traversy wants to prosecute Trudeau over SNC-Lavalin using rare legal procedure

Jan 26, 2020

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Retired firefighter Norm Traversy is attempting to file a private prosecution against Justin Trudeau over the SNC-Lavalin affair.

Filing a private prosecution is a rare procedure when someone other than a Crown prosecutor uses the Criminal Code to sue someone in court for a crime.

In this interview, Norm recalls Gary McHale's attempt to a similar prosecution against Trudeau.

Gary Michael video here:

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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Wed Nov 13, 2019 10:17 pm

Personal only? Corporate entities?

Fraud, section 380
The Criminal Code states that an individual commits fraud when he or she, by deceit, falsehood or other fraudulent means defrauds any individual or the public of any money, property, belonging, service and/or security. The accused must have intended to defraud the individual or public.

fraudulent misrepresentation, Fraud is not definitely defined in the Criminal Code. ... The actus reus for the offence is made out where: there was a prohibited act of deceit, a falsehood or some other fraudulent means; and. there was a deprivation caused by the prohibited act.

false pretense, False Pretences
361 (1) A false pretence is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it.

negligence, From Canada's Criminal Code, ¶219: "Every one is criminally negligent who in doing anything, or in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.”

Negligent misrepresentation in contract occurs when someone makes a false statement to get another person to agree to the terms of a contract. Additionally, the person who made the statement should have known, or had a duty to know, that it was false. There are three main types of misrepresentation, fraudulent, negligent, and innocent. Fraudulent misrepresentation 

Fraudulent misrepresentation is very serious. Fraudulent misrepresentation occurs when a party to a contract knowingly makes an untrue statement of fact which induces the other party to enter that contract. Fraudulent misrepresentation also occurs when the party either does not believe the truth of his or her statement of fact or is reckless as regards its truth. A claimant who has been the victim of alleged fraudulent misrepresentation can claim both rescission, which will set the contract aside, and damages.

Negligent misrepresentation
A party that is trying to induce another party to a contract has a duty to ensure that reasonable care is taken as regards the accuracy of any representations of fact that may lead to the latter party to enter the contract. If such reasonable care to ensure the truth of a statement is not taken, then the wronged party may be the victim of negligent misrepresentation. Negligent misrepresentation can also occur in some cases when a party makes a careless statement of fact or does not have sufficient reason for believing in that statement’s truth. As with fraudulent misrepresentation, claimants can pursue both damages and a rescission of the contract. 

include practicing medicine without a license and theft by deception. Prosecutors use the latter charge when they believe a person took the property of another by lying or by trickery.

breach of trust Breach of trust in section 122 of the Criminal Code prohibits acts that seriously or markedly breach the standard of responsibility and conduct expected of someone in a position of public trust.

Mens rea is the intent a person has behind committing a crime. Typically, there has to be intent behind the crime, but this isn't required in every situation. ... Actus reus is the action the person takes to perform the criminal act. This is the physical action behind the crime.
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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Thu Oct 18, 2018 2:12 pm

Markarian v. CIBC World Markets Inc. “fraud" mentioned 226 times in this judgement against CIBC.
Markarian v. CIBC World Markets Inc.

1980_2009_08_035.jpg (25.13 KiB) Viewed 13000 times

CIBC WORLD MARKETS INC., Plaintiff in warranty
HARRY MIGIRDIC, Defendant in warranty

[2006] Q.J. No. 5467 Unofficial translation.

For official version: [2006] J.Q. no 5467 2006 QCCS 3314
No.: 500-05-069668-018
Quebec Superior Court
District of Montreal
The Honorable Jean-Pierre Senécal, J.S.C.

Heard: January 10 to May 27, 2005 (25 days). Judgment: June 14, 2006.
(724 paras.)

Commercial — Banking — Accounts — Withdrawals — Financial institutions — Banks — Liability to customers — Fault — Action by account holders Markarian, Markarian and 125134 Canada inc. against CIBC granted; action in warranty against Migirdic in reimbursement of amounts taken from their brokerage account granted — Migirdic asked Markarian to sign guarantees in favour of other clients unknown to Markarian without telling him that he was signing guarantees — After Migirdic confessed his fraud to CIBC, CIBC executed the guarantees without telling Markarian about Migirdic's confession — CIBC failed to effectively supervise the activities of Migirdic even after having discovered that he had acted improperly.
Contracts and obligations — Conditions of formation — Free and enlightened consent — Defect of consent — Error — Inexcusable error — Regarding essential element — Regarding nature of contract — Regarding object of prestation — Error induced by fraud — Silence or concealment — Undue
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influence and abuse of authority — Action by account holders Markarian, Markarian and 125134 Canada inc. against CIBC granted; action in warranty against Migirdic in reimbursement of amounts taken from their brokerage account granted — Migirdic asked Markarian to sign guarantees in favour of other clients unknown to Markarian without telling him that he was signing guarantees — After Migirdic confessed his fraud to CIBC, CIBC executed the guarantees without telling Markarian about Migirdic's confession — Markarian was not in error since he never knew that he was concluding the contract invoked.

Damages — Exemplary or punitive damages — Evidence — When available — Action by account holders Markarian, Markarian and 125134 Canada inc. against CIBC granted; action in warranty against Migirdic in reimbursement of amounts taken from their brokerage account granted — Migirdic asked Markarian to sign guarantees in favour of other clients unknown to Markarian without telling him that he was signing guarantees — After Migirdic confessed his fraud to CIBC, CIBC executed the guarantees without telling Markarian about Migirdic's confession — CIBC tried to benefit directly from Migirdic's fraud and Markarian, Markarian and 125 were entitled to punitive damages of $1,500,000.

Action by account holders Markarian, Markarian and 125134 Canada inc. (125) against CIBC World Markets inc. (CIBC) and action in warranty against Migirdic in reimbursement of amounts taken from their brokerage account — Markarian, Markarian and 125 opened non-speculative accounts with CIBC for which Migirdic was responsible — Migirdic asked Markarian to sign guarantees in favour of other clients unknown to Markarian without telling him that he was signing guarantees — CIBC inquired in response to the incongruities of Migirdic's records but did not delve further into Migirdic's false answers — After Migirdic confessed his fraud to CIBC, CIBC executed the guarantees without telling Markarian about Migirdic's confession — HELD: Action granted and action in warranty granted — Markarian was not in error since he never knew that he was concluding the contract invoked — CIBC gave misleading titles for Migirdic that were misrepresentation to Markarian — CIBC failed to effectively supervise the activities of Migirdic even after having discovered that he made improper actions — Markarian could not have ratified the contracts since he did not know of any cause of nullity — Markarian was justified in assuming that Migirdic and CIBC would act honestly toward him — CIBC tried to benefit directly from Migirdic's fraud and to conceal evidentiary elements — Markarian, Markarian and 125 were entitled to punitive damages of $1,500,000 and to 75 per cent of their extrajudicial costs.

Statutes, Regulations and Rules Cited:
Charter of Human Rights and Freedoms, s. 1, s. 4, s. 6
Civil Code of Québec, art. 6, art. 179, art. 1385, art. 1399, art. 1400, art. 1401, art. 1407, art. 1420, art. 1478, art. 1479, art. 1619, art. 1621, art. 2132, art. 2138, art. 2345, art. 2346, art. 2353, art. 2365
Code of Civil Procedure, art. 497, art. 547
Mtre. Serge Létourneau and Mtre. Suzanne Gagné (Létourneau & Gagné), counsels for the plaintiffs. Mtre. Bernard Amyot and Mtre. Sébastien Caron (Heenan Blaikie), counsel for the defendant.
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1. THE FACTS (a) Parties
(b) Opening of the accounts and signing of the guarantees
(c) Audit and confirmation letters
(d) Nature of the investments that were to be made and were made (e) Client profiles
(f) Intervention by the Compliance Department over the years
(g) Migirdic's confession and execution of the guarantees
(a) Liability for its employee
(b) Defendant's faults
(c) Misleading titles
(d) Lack of protection for clients and absence of
adequate supervision and control
(1) Applicable regulations
(2) Migirdic's numerous faults over the years
(3) An inadequate system of control
(4) Intergold and AMCC shares
(5) Failures of the Compliance Department
(6) Failures of the branch manager
(7) Duty to provide greater supervise a "delinquent" employee
(e) Defendant's liability for its own faults
5. ABSENCE OF RATIFICATION (a) Audit letters
(b) Confirmation letter (c) Monthly statements (d) Applicable legal rules
(a) Applicable law
(b) Justification for punitive damages (c) Determination of the quantum
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¶ 1 The plaintiffs are claiming from CIBC WORLD MARKETS (hereinafter "CIBC", "CIBC Wood Gundy" or the "Bank") $1,451,327.39 as reimbursement of the amounts taken from their brokerage accounts by CIBC in execution of "guarantees" they allegedly granted in favour of the accounts of RitoLuthi and Sebuh Gazarosyan, who were perfect strangers. The claim is $353,026.12 for the plaintiffs HAROUTIOUN and ALICE MARKARIAN personally and $1,098,301.27 for their company (and that of their children), 125134 CANADA INC.
¶ 2 The plaintiffs contended that they never agreed to provide such guarantees, that they were defrauded by Harry Migirdic, their investment advisor at CIBC, and that CIBC was fully aware of the situation and stripped them of their assets.
¶ 3 The Bank did not deny the fraud or the fact that Migirdic was its employee. It argued that the plaintiffs were ultimately the architects of their own misfortune, they failed to fulfil their obligation to verify their statements of account, they ratified Migirdic's fraud and they failed to fulfil their duties toward the Bank.
¶ 4 Having long fought the idea that it could be liable for anything in regard to the plaintiffs, the Bank, at the start of the trial, argued before the Court that liability could possibly be shared, but it refused to indicate in what proportion and to make any remittal without a comprehensive settlement of the matter. It then indicated to the Court that it in fact remained fundamentally opposed to any sharing of liability because of [TRANSLATION] "the interruption by the plaintiffs of the causal link" between what its employee did and the situation in which the plaintiffs found themselves. However, during the trial, CIBC offered to reimburse the plaintiffs in full, without any admission of liability, provided explicitly that they renounced any other claim against it, particularly for punitive damages. The plaintiffs refused the offer.
¶ 5 They did so because they are also claiming from CIBC $200,000 in moral damages and for impairment of their fundamental rights, and $10,000,000 in punitive damages. The Bank indicated that it would never agree to pay a cent in that regard, if only as a matter of principle.
¶ 6 Originally the plaintiffs claimed an additional sum of $226,935.80 for losses sustained further to inappropriate and unauthorized transactions involving highly speculative securities, but the Bank has since reimbursed them, with interest. In addition, another sum of $11,008.86, taken from the Markarians' joint account under the guarantee related to Sebuh Gazarosyan, is no longer in dispute, as it was reimbursed in full, with interest, during the hearing.
¶ 7 The defendant, CIBC WORLD MARKETS INC./MARCHÉS MONDIAUX CIBC is a security brokerage firm in full operation. It is a wholly owned subsidiary of CIBC, one of Canada's six largest banks. Among other business, it operates, for individuals, under the name CIBC WOOD GUNDY, the securities brokerage firm acquired by the Bank in 1988. However, that is simply a division and an integral part of the defendant. Furthermore, the Bank acquired the Merrill Lynch brokerage firm in January 1990 and incorporated it into Wood Gundy. Harry Migirdic, who worked for Merrill Lynch, then became the Bank's employee. That was the way the plaintiffs, who had their accounts with Merrill
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Lynch and whose financial advisor was Harry Migirdic, became the defendant's clients.
¶ 8 The plaintiff HAROUTIOUN MARKARIAN has been retired since 1993 and is now 72 years old. The plaintiff ALICE MARKARIAN is his spouse and she is 68 years old.
¶ 9 Mrs. Markarian knows nothing about business. Her spouse has always administered all the family's assets and has always handled "finances" alone. As she said and as everyone acknowledged, she signed the documents he asked her to sign and she did not ask any questions. She has always had complete trust in Mr. Markarian.
¶ 10 The company 125134 CANADA INC., which is also a plaintiff, is the personal company of Mr. and Mrs. Markarian and their children. It is a family holding company constituted by Mr. Markarian to, among other things, hold and build on part of the proceeds of the sale of his business, ensure his retirement and that of his spouse, and allow the transfer of the assets to the children after the death of Mr. and Mrs. Markarian, while limiting the tax impact. In actuality, Mr. Markarian is the only director of the company and he makes all the decisions alone. The company 125134 acts only through him and he is its alter ego.
¶ 11 That means the plaintiffs in this case consist essentially of Mr. Markarian.
¶ 12 He is Armenian in origin. He was born in Egypt and lived there until he was 28 years old. After seven or eight years of elementary school and five years of trade school, he became a toolmaker and machinist, and worked for his uncle in a plant where nails were made and machines were repaired. He married in Egypt and his first two children were born there.
¶ 13 Mr. and Mrs. Markarian decided to immigrate to Canada in 1962, considering the political and economic situation in Egypt at the time. Because of the Egyptian laws in force, they had to leave everything they owned there when they left, and they arrived in Canada with their two children and $300 in their pocket.
¶ 14 Like many immigrants, Mr. Markarian worked very hard to start all over again, establish himself and prosper. He first worked for five years as an employee for various firms as a toolmaker and machinist. Then in 1967, with two partners, he founded his own business, Les Industries Acadiennes, a mechanical shop. He subsequently purchased the share of one of his partners and remained the other's partner without interruption until his retirement. The small business was very successful and he made his fortune. As he said: [TRANSLATION] "we took everything that came along, everything the others did not want". The hours were long and often extended late into the night. Mr. Markarian said he succeeded by listening to his customers, doing [TRANSLATION] "good work", treating his employees well [TRANSLATION] "in order to keep them" and [TRANSLATION] "acting honestly". That is easy to believe. Having started with nothing, he had accumulated assets worth $4.5 million by his retirement in January 1993.
¶ 15 The fraud to which he fell victim at CIBC stripped him of a third of all he possessed.
¶ 16 Mr. Markarian is a simple man, sincere and wholly of good faith. To say he is very credible is
to put it mildly. He is a gentleman and an honest man. His wife is of the same quality.
¶ 17 Mr. Markarian was doing business with Merrill Lynch for his RRSP and that of his spouse
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[See Note 1 below] when Harry Migirdic was introduced to him around 1986 as a new representative of the brokerage firm. The person with whom he had dealt until then told him Migirdic was an honest man and "knowledgeable". Migirdic, also of Armenian origin, had been working since 1980 as a securities representative. A relationship of trust was gradually established between Migirdic and Mr. Markarian. Little by little Migirdic became the main investment adviser of the plaintiffs. Investments made elsewhere were even transferred to Merrill Lynch.
Note 1: These accounts are not involved in the proceedings now that the claims concerning the AMCC and Intergold shares have been settled.
¶ 18 An initial new account was opened on October 7, 1986; it was a joint account in Mr. and Mrs. Markarian's names.
¶ 19 Migirdic was appointed "Vice-President" of Merrill Lynch for the first time on October 21, 1986. The title greatly impressed the Markarians, who were certain they were doing business with someone "important" and "reputable". It bolstered their trust in Migirdic.
¶ 20 At first, the Markarians increased their investments with Merrill Lynch by small amounts, and the bulk of their investments remained with the Royal Bank, principally in the form of term deposits and government bonds. Then Migirdic convinced them to transfer most of their financial assets to Merrill, where they could have [TRANSLATION] "a little higher percentage".
¶ 21 In January 1990, Merrill Lynch was absorbed by CIBC Wood Gundy.
¶ 22 The Les Immeubles Almark account was opened in February 1991. Two thirds of the account was the property of Mr. Markarian and the remainder, of his partner in Les Industries Acadiennes. That account is not involved in the present proceedings.
¶ 23 Mr. Markarian sold his share of his company in December 1992 and retired. That gave him more money to invest in securities.
¶ 24 It was beginning in 1993 that things began to go sour for the Markarians, without their realizing it.
¶ 25 Over the years, Migirdic had made disastrous investments for some of his clients. A number of the investments were highly speculative, which the clients were not aware of, or did not realize. The losses were substantial. Some clients were informed of them while others were not. Some of the former ones had been promised by Migirdic that he would "pay" them. With the others, Migirdic tried to maintain the illusion that everything was going well. That was the case with Rita Luthi, the owner (with her husband) of an outfitter operation in Abitibi, who had entrusted Migirdic with $150,000. For all practical purposes, Migirdic's investments for her were discretionary (without the account authorizing them). They proved disastrous. In February 1993, there was only $18,000 remaining in the account. Mrs. Luthi was completely unaware of that; she was still under the impression that the value of her initial investment had not changed.
¶ 26 Mrs. Luthi had agreed with Migirdic that she would be able to make withdrawals from her account from time to time to cover her needs. Convinced that her money was still there and accessible, she wanted to withdraw $60,000 from her account in February 1993. Even if the entire portfolio were
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liquidated, the withdrawal would have been impossible since the shares in the account were by then worth only 30% of that amount. Migirdic had the idea of obtaining a guarantee from a very solvent third party in favour of Mrs. Luthi's account, so that he could "go in the red" without the Bank's intervening, given the guarantee; that would leave him time to "make up his losses" so that withdrawals could continue, regardless of the status of the account. To their great misfortune, Migirdic thought of the Markarians, who were not suspicious people.
¶ 27 So, on February 16, 1993, he obtained Mr. Markarian's signature on a document entitled "Guarantee Agreement" (P-6). The document indicated that a guarantee was given in favour of the account of Rita Luthi from the Markarians' joint account, their only account available, since the law prohibited RRSP accounts from being used as collateral. The guarantee remained in effect until it was exercised by the Bank, in 2001.
¶ 28 We will return subsequently to the circumstances underwhich the guarantee was signed. Note, however, at this point that the guarantee of February 16, 1993 was signed in favour of a person whom the Markarians did not know, whom they had never heard of and whose very existence they were completely unaware of. Furthermore, the Markarians had no reason to provide such a guarantee and derived no benefit from it. That is also true for their family and acquaintances.
¶ 29 The client profile of the Markarians was not updated to reflect the existence of the guarantee, as the regulations required (the profile is called the "Know Your Client Form" or the "KYC Form"). Migirdic was later sanctioned for that violation of the rules.
¶ 30 In addition, although the guarantee was signed on February 16, 1993, it was only on the monthly statement of account for July 1994, i.e. 17 months later, that a short, vague indication of the guarantee appeared for the first time in a document given to Mr. Markarian. It said the following: "Items for Your Attention - Your Account Guarantees Account 500-01193". Mrs. Luthi's account was then $14,360 in deficit. The same reminder next appeared of the top of each monthly statement sent for the joint account until February 1999. It was then replaced by the following: "Messages - Reminders - Your Account Guarantees Account 500-01193", this time at the very end of the statement, from March 1999 to March 2001.
¶ 31 On September 8, 1993, Mr. Markarian opened the account of the company 125134 Canada Inc., with a sizable portion of the proceeds of the sale of his share of Les industries Acadiennes. Signed the same day was a guarantee in favour of the company account by means of the Markarians' joint account (P-12A). Certain documents mentioned November 15, 1993 as the date the account was opened (for example, P-30 at 2) and the decision of the Investment Dealers Association of Canada (the IDA), which sanctioned Migirdic further to his fraud, indicated that date. But that was an error, since the first deposit in the account took place on September 16, and the guarantee was signed on the 8th. That error illustrates the lack of control and thoroughness in Migirdic's documents.
¶ 32 No message ever appeared on the monthly statements of account sent to Mr. and Mrs. Markarian for their joint account concerning the guarantee given by Mr. Markarian in favour of the company account.
¶ 33 In addition to playing the stock market for his clients, Migirdic did so for himself. In November 1983, he had opened an account at Merrill Lynch in the name of his uncle, Sebuh Gazarosyan, who was living and still lives in Turkey. Migirdic acknowledged that the account was, in fact, his personal account, which he used to buy, sell and speculate abundantly. But no one knew that the account did not
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really belong to Sebuh Gazarosyan. Unfortunately, Migirdic engaged in disastrous transactions and the account was deep in the red in 1994. That was not allowed by the brokerage firm. An account in deficit could not continue to be active if it was not guaranteed by a third party or by assets. Migirdic did what had to be done to "find" various guarantors for his account; they varied over time. By March 1994, he had no more of them.
¶ 34 It was in these circumstances that, on March 28, 1994, he had Mr. Markarian sign a new document entitled "Guarantee Agreement" (P-7). It said a guarantee was given in favour of the account of Sebuh Gazarosyan out of the account of the company 125134. The account of Sebuh Gazarosyan was by then over $250,000 in deficit. Unfortunately for them, the Markarians were the last ones to guarantee it. The guarantee remained in effect until it was exercised by the Bank, in 2001.
¶ 35 We will return subsequently to the circumstances under which the guarantee was signed. However, note at this point, that the guarantee of March 28, 1994 was also signed in favour of a person whom the Markarians did not know, whom they had never heard of and whose very existence they were completely unaware of. Furthermore, the Markarians had no reason to provide such a guarantee and derived no benefit from it. (On the contrary, they were suddenly $250,000 in debt for a stranger.) That was also true for their family and acquaintances. In addition, like everyone, the Markarians were unaware that Sebuh Gazarosyan's account was in fact the account of Migirdic.
¶ 36 No message ever appeared on the monthly statements of account sent to Mr. Markarian for his company concerning the guarantee given by it in favour of Sebuh Gazarosyan's account.
¶ 37 The client profile of the company was also not updated to reflect the existence of the guarantee, as the regulations required. Migirdic was later sanctioned for that violation of the rules.
¶ 38 Let me add that the Markarians were not the only clients that Migirdic used to provide guarantees for other clients and his own account over the years. In fact, the Court was informed that other proceedings are pending in that regard.
¶ 39 The evidence is clear that the guarantees employed by Migirdic in regard to the accounts of Rita Luthi and Sebuh Gazarosyan were used to provide him with [TRANSLATION] "credit in order to reimburse the losses of some of his clients because of his bad transactions" and to [TRANSLATION] "have all the latitude he needed to make a multitude of transactions" in order to "cover his losses" and change them into surpluses. Migirdic's intention was not, in principle, to "steal" from the Markarians or grab their assets, but to give himself the resources to "play" the stock market in the hope that he could cover his losses and those of his clients. But it is indeed theft that the Markarians sustained, since Migirdic's manoeuvres obviously never enabled him to "cover his losses" as he hoped and therefore "release" the Markarians from their obligations. On the contrary, his manoeuvres merely made the losses worse and stripped his unfortunate victims of their assets.
¶ 40 Moreover, we cannot lose sight of the fact that the new transactions that the "guarantees" obtained from the Markarians permitted Migirdic to make (and there were an enormous number of them) also had another very great merit: they generated huge commissions for him (and equally for the Bank). From 1991 to 2000, Migirdic billed over $11,000,000 in commissions, i.e. an average of $1,132,500 a year (the amount was as much as $1,625,603 in 1997). Part of the commissions were from the very great number of transactions in his own account (in the name of Sebuh Gazarosyan) and in the account of Rita Luthi, as well as in the accounts of other clients he defrauded. The commissions paid for those transactions have never been recovered, either from Migirdic or the Bank.
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¶ 41 Between 1995 and 2000, six letters auditing the guarantee given in regard to the Gazarosyan account were sent by the Bank to Mr. Markarian for his company, at the rate of one a year, every October, at the request of the Bank's external auditors. The purpose of the letters was to enable the external auditors to ensure that the guarantee in favour of the Gazarosyan account existed. At the same time, they were to remind the guarantor of the existence of the guarantee. But that was not the effect they actually had.
¶ 42 The letters were exactly the same from one year to the next. They read as follows: CIBC WOOD GUNDY INC. [in 1995, "CIBC" did not appear]
125134 Canada Inc. 12345 Toupin Blvd. Montreal, Quebec H4K 2H6
Dear Sir/Madam:
Re: Mr. Sebuh Gazarosyan - Account # 310-06094
In connection with their audit of the accounts of CIBC Wood Gundy Inc., it is necessary to verify your guarantee of all present and future debts or liabilities as at October 31, 199[5] transacted under the above-numbered account(s) to our auditors: Arthur Andersen & Co., Chartered Accountants
Toronto Dominion Centre
1900 - 79 Wellington Street West
P.O. Box 29
Toronto, Ontario
M5K 169
Attention: [Name]
If you do guarantee payment, please sign in the space provided below. If you do not guarantee payment, please indicate at the bottom of this letter or on the reverse, the manner in which you act for these accounts.
In either case, would you please return this letter directly to our auditors, Arthur Andersen & Co., in the enclosed envelope at your earliest convenience.
Yours truly,
R.A. Bishop
Credit and Client Services
We guarantee payment against delivery and/or delivery against payment on the above numbered account(s) at October 31, 1995. [In bold in the text.]
__________ __________ (Date) (Signature)
¶ 43
contacted Migirdic to inform him of receipt of a letter bearing both the name of his company and the
Upon receipt of the first of these letters, dated October 2, 1995, Mr. Markarian quickly
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name of Sebuh Gazarosyan, and to ask him what it meant. Migirdic's response was as follows: [TRANSLATION] "Don't worry; there is no doubt a mistake; I'll stop by this evening". When he went to the Markarians' house that very evening, Migirdic looked at the letter and said the following to Mr. Markarian, according to the latter:
It's a mistake. It was done in Toronto. You know how young people are today. They make mistakes. You are on the same street, boulevard Toupin, as Gazarosyan. Sign there and I'll do what is necessary for it to be
The address of Mr. Markarian and his company was 12 345, boulevard Toupin, in Montréal.
That of Sebuh Gazarosyan (actually that of his brother in Montréal) was 12 250, boulevard Toupin. Migirdic told Mr. Markarian that and Mr. Markarian had no trouble believing the explanation.
¶ 45
Migirdic confirmed that he said the following:
A. I told him it's a mistake, it's going to be fixed.
A. I told him it's a mistake, it's going to be fixed. Because I was hoping that the account that was guaranteed was going to be not needing the guarantee and that was going to be lifted, going to cancel this.
Q. Did you say that to Mr Markarian, or you think...
A. No, I thought. I only told him it's going to be fixed. I didn't give any details of
what is involved. ...
Q. Did you ask Mr. Markarian to sign that letter?
A. Yes.
Q. What reason did you give him to obtain his signature?
A. The fact that it was going to be fixed and I needed him to sign, there was going
to be fixed.
Q. So you told him he needed to sign in order to permit you to fix the error? A. To clear it, that's right. To clear it.
¶ 46
Mr. Markarian heard no more about it that year. Migirdic mailed the document to the external auditors. He was satisfied that the existence of the guarantee would be confirmed in their eyes for at least another year since, by signing, Mr. Markarian requested no correction regarding the guarantee, contrary to what Migirdic told him, but instead confirmed its existence. The signature in fact appeared under the words: "We guarantee payment against delivery and/or delivery against payment on the above numbered account(s) at October 31, 1995". Gazarosyan's account was then $465,000 in the red.
¶ 47 Mr. Markarian testified that he never read the audit letters he received from one year to the next, but merely glanced at the letterhead, particularly the name of his company and that of Sebuh
Mr. Markarian signed where Migirdic asked him to sign and Migirdic left with the document.
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Gazarosyan (at least until the present proceedings were instituted). It was Migirdic who explained to him the meaning of the letter, without reading the full text to him. It was also Migirdic who told him that the letter was an error and that he had to sign it at the bottom for the error to be corrected.
¶ 48 The second audit letter was dated October 17, 1996. When he received it, Mr. Markarian again contacted Migirdic, who was [TRANSLATION] "angry", in Mr. Markarian's own words, which Migirdic confirmed. Mr. Markarian told Migirdic that he did not understand how the error of the previous year had not yet been corrected. He was angry because he thought Migirdic had been negligent in resolving the problem. Mr. Markarian said he thought that, by speaking loudly to him, Migirdic would make more of an effort to resolve the problem.
¶ 49 Migirdic stopped by the house. He explained the following to Mr. Markarian, according to Migirdic's testimony:
Nothing different. I had nothing else to say. I'm not going to make up new things, that's what it is. It's a big company, it's taking too long, it's bureaucracy, it's paper work. It takes a long time to get things fixed.
¶50 Migirdic added: "We didn't go too much into detail... No specifics, no details".
¶51 Migirdic again asked Mr. Markarian to sign the letter. He said he told him it was a condition for
obtaining "the release [of] the guarantee". For his part, Mr. Markarian testified:
I signed because Harry told me: "Sign it here; I'm going to do what's necessary to make sure it's corrected", and he left with the letter.
¶52 Migirdic testified out of court that he and Mr. Markarian read the letter together [See Note 2 below]. Mr. Markarian completely denied that. He said he just looked at the letterhead again and, as for the rest, it was Migirdic who explained the meaning.
Note 2: Examination P-106C of July 18, 2002, question 67.
¶ 53 The Court is of the opinion that the plaintiff's version must be accepted. On the one hand, Mr. Markarian is much more credible than Migirdic. On the other, he clearly recalled the audit letters because they were always dealt with one by one and he was the one who received them and called Migirdic to talk about them (Migirdic did not, on his own initiative, quickly stop by with the documents to be signed). Furthermore, Migirdic did not always recall details. His testimony thus sometimes varied. That was the case, for example, of the reasons given the Markarians for signing the guarantee in favour of Rita Luthi, Migirdic first said that he did not remember, but in the end he said: "I'm thinking now" (see para. 198 below). The same is true of the question as to whether he brought the Markarians the confirmation letter of April 25, 2000 concerning the Luthi guarantee (see para. 80 below). Migirdic's testimony that he read the second audit letter with Mr. Markarian before Mr. Markarian signed it is not reconcilable with his statement that "we didn't go too much into detail; ... no specifics, no details", mentioned earlier. It is also incompatible with the out-of-court testimony of Migirdic the day before explaining the general context in which the documents were always signed: "any form that he needed to be signed, he didn't read the fine print, he didn't analyze it; what I told him,
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he took it for granted that that's what had to be done" [See Note 3 below]. Lastly, it is incompatible with the way Migirdic generally went to the Markarians' house to have things signed (see para. 195 below). Mr. Markarian's version is therefore more in keeping with the way that Migirdic generally had the Markarians sign a document, according to Migirdic himself.
Note 3: Examination P-106-B of July 17 2002 at 75, question 359.
¶ 54 For all these reasons, the Court has no hesitation in believing the testimony of Mr. Markarian and it accepts that Mr. Markarian and Migirdic did not read the audit letter of October 17, 1996 together before it was signed.
¶ 55 What did Migirdic tell Mr. Markarian about the meaning of the letter and its implications?
¶ 56 CIBC contended that Migirdic informed Mr. Markarian that the "error" was that he was guaranteeing the debts of Gazarosyan, whereas that should not have been so. Hence, Mr. Markarian was then allegedly aware of the existence of the guarantee, even if it was "erroneous". CIBC bases this on what Migirdic said in his out-of-court examination:
Q. I'm showing you the letter dated October nineteen ninety-six (1996), which is part of D-1. I will ask you to read it. Do you remember that letter?
A. Yes.
Q. Could you explain when you saw that letter for the first time?
A. When he received it and he called me. It's the same as the first letter. The
same... ...
Q. He trusted you. So you asked him, I suppose, to sign the letter in order to
have the guarantee released? A. Yes.
Q. That was a condition to obtain the release? Did you tell him that?
A. Yes. Listen, you confirm your guarantee and I'll make sure it goes away.
[Examination of Harry Migirdic on July 18, 2002, questions 43, 44, 56 and 57] [Emphasis added.] [sic]
¶ 57
him was in effect but that he would have it eliminated.
CIBC thus, concluded that Migirdic clearly indicated to Mr. Markarian that a guarantee binding ¶ 58 In fact, that is not what the evidence shows.
¶ 59 First, Mr. Markarian denied he was ever told he was guaranteeing any third party whatsoever, even erroneously, and that such a guarantee had to be "revoked". He testified convincingly that Migirdic always told him that the letter was sent because of an error in the address and the name, caused by the fact that he lived on the same street as Sebuh Gazarosyan. Migirdic did not deny that was what he actually did tell Mr. Markarian after receipt of the first audit letter of October 1995. In fact, how could Mr. Markarian have known Gazarosyan's address if Migirdic did not tell him? Migirdic acknowledged that, further to receipt of the second letter the following year, he told Mr. Markarian the same thing he had told him the previous year (see para. 49 above). He acknowledged that he said the error of the previous year had not been corrected. But the error was in the address and name. Mr.
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Markarian was angry because Migirdic had not done what was required to correct "the error of the previous year". All that has nothing to do with a guarantee that should have been revoked. In fact, that reason was allegedly completely new, compared with what Migirdic had said the previous year. How could he have explained the different version to Mr. Markarian? What is more, Migirdic testified that he did not give any details. It is noteworthy that the "new" version was in fact made up of the words that the Markarians' attorney put in Migirdic's mouth. The words did not originate with Migirdic, who merely repeated what he heard.
¶ 60 But there is more. The words he repeated were incomprehensible and made no sense. How could Migirdic have said in the same sentence: "You confirm your guarantee" and "I'll make sure it goes away"? CIBC's attorney himself had to acknowledge that that made no sense. Such an affirmation and the reasoning underlying it are incomprehensible. It would mean that Migirdic asked Mr. Markarian to sign so as to indicate that he wanted the guarantee revoked. But it made no sense to ask him to sign to confirm the guarantee so that it could be revoked.
¶ 61
A little further on in the examination is the following:
Q. Did Mr. Markarian give you any reason to show that he was completely understanding the meaning and the consequences of such guarantee?
A. What the guarantee or what the letter said? He understood what the letter said, but the implications and the consequences, he doesn't know...
[Examination of Harry Migirdic on July 18, 2002 at 16, question 67] [Emphasis added.]
¶ 62
text but does not grasp the consequences and implications. It is the same as saying a person "understands" but "does not understand". That is all the more contradictory here in that, according to the evidence, Mr. Markarian knew exactly what a guarantee was. He had granted a number of them in his life, either in favour of his business or his children, and he understood perfectly the risks and consequences of a guarantee. In fact, he testified that he did. In the circumstances, he could not both understand that he was guaranteeing Gazarosyan and not understand the implications and consequences of the guarantee.
¶ 63 That passage is nonetheless interesting in that it makes it possible to return to what is essential here. Migirdic was very clear that Mr. Markarian never realized the implications or consequences of the October 1996 audit letter. In fact, he repeated that before the Court. That is in keeping with what Migirdic always affirmed, both in Court and to CIBC and the IDA investigators, namely, that Mr. Markarian never realized that he had signed a guarantee in favour of Gazarosyan. All that is irreconcilable with the fact that Mr. Markarian is said to have understood the meaning of the 1996 audit letter and that Migirdic allegedly told him he had signed a guarantee in favour of Sebuh Gazarosyan, even erroneously.
¶ 64 The Court believes Mr. Markarian. In fact, the evidence shows that Migirdic never told him that the "error" was that he was guaranteeing the debts of Sebuh Gazarosyan. He was unaware of the existence of a guarantee granted at his expense and did not realize that he was guaranteeing anything at all. He did not realize "the implications and the consequences" of the October 1996 audit letter and Migirdic in no way told him its meaning and consequences. In that regard, there is no difference between what Migirdic and Mr. Markarian said.
This other passage is also ambiguous. One cannot say in the same breath that one understands a
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¶ 65 Once the "explanations" were given by Migirdic, Mr. Markarian signed the document as requested by him. Migirdic himself once again sent the letter to the external auditors, without doing anything to keep the promises made to Mr. Markarian. At the time, the Gazarosyan account was $350,000 in the red (an improvement over the previous year).
¶ 66 The third audit letter was dated October 3, 1997. Upon receiving it, Mr. Markarian was even more angry and he contacted Migirdic. He said the discussion was [TRANSLATION] "animated". Migirdic came to his house again and told him the same thing as in the previous years. Migirdic confirmed that.
¶ 67 Migirdic once again had Mr. Markarian sign "in order to get, again, released", he said. He noted that Mr. Markarian "was skeptical, but he still trusted me and he gave me the letter, he signed the letter", Migirdic added that, after the third (or perhaps the fourth) letter, he felt Mr. Markarian's skepticism because, when he went to see him from time to time, Mr. Markarian asked him such questions as "What's going on?" regarding "the error", "Who is this person Sebuh Gazarosyan?", and so on.
¶ 68 Migirdic again sent the letter to the auditors, without doing anything to "correct" the record. The status of the Gazarosyan account had seriously deteriorated by then; it was $831,000 in deficit, more than double the previous year.
¶ 69 The fourth audit letter was dated October 19, 1998. Upon receiving it, Mr. Markarian said he was [TRANSLATION] "enraged", not because he believed it was serious for him that the situation was continuing (he was unaware of that), but because the "error" had still not been corrected.
¶ 70 We know what happened next. Migirdic went to Mr. Markarian's house for his signature, and told Mr. Markarian that he would have the error corrected and his signature was required for that purpose. Then he sent the signed letter to the external auditors without doing anything else. The Gazarosyan account was $780,000 in the red at that point.
¶ 71 The same game was played after the fifth audit letter was sent, on October 20, 1999. The Gazarosyan account was then $770,000 in the red.
¶ 72 The sixth letter was sent on October 4, 2000. That time, Mr. Markarian raised his voice even more. He shouted during the discussion with Migirdic that he was tired of the situation. He added that he did not want any problems. He was also a little discouraged by the whole matter.
¶ 73 Migirdic again asked him to sign and promised it would be the last time. That was true, not because the situation was corrected but because the fraud came to light in early 2001 and no other audit letter was sent. In October 2000, the Gazarosyan account was $968,000 in the red.
¶ 74 As for the guarantee linked to Rita Luthi's account, there were never any audit letters. The Bank's external auditors never contacted the Markarians and never sent them any document.
¶ 75 Rather, it was Tom Noonan, Migirdic's immediate superior and the branch manager, who wrote to the Markarians on April 25, 2000 and sent them a request for confirmation of their guarantee in order to "ensure" that they were aware they were guaranteeing Rita Luthi's account. No other letter was sent from 1993 until the fraud became apparent.
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¶ 76 Noonan was pressured to act by CIBC's Compliance Department, which was concerned by the incongruous nature of the guarantee given in favour of the Luthi account and the fact that nothing established that the Markarians were indeed aware of the guarantee. The Compliance Department therefore wrote to Noonan to ask him to "communicate" with the Markarians to ensure that they understood the extent of the guarantee and that that information was duly reflected in the records. That intervention came in the wake of a whole series of unsuccessful requests by the Compliance Department that the monthly statements for Rita Luthi's account be sent to the Markarians and a whole series of questions about the guarantee and the relationship between Mrs. Luthi and the Markarians.
¶ 77 Noonan thus wrote a letter on April 25, 2000 to Mr. and Mrs. Markarian indicating that CIBC wanted to be certain that they realized that significant assets belonging to them were being used to cover Luthi's liabilities. The letter was worded as follows:
April 25, 2000
Haroutioun Markarian or
Alice Markarian
12345 Toupin
Montreal H4K 2H6
Dear Mr. & Mrs. Markarian:
In our ongoing monitoring of service quality, we conduct regular reviews of client accounts. In your case, we note that your account guarantees that of Mrs. Rita Luthi. We wish to assure ourselves that you are aware that your significant assets are being used to cover the liability of the account that you guarantee.
In this regard, we would appreciate it if you could sign the enclosed letter of acknowledgement to this effect, and return it for our files.
Please call me or your Financial consultant, Harry Migirdic, if you have any questions in this regard.
Thomas J. Noonan
Branch Manager and Director
This sentence followed, and below it the Markarians were asked to sign:
I acknowledge that I am fully aware that my account 500-01327 guarantees the liability in the account of Rita Luthi 500-01193.
Haroutioun Markarian Alice Markarian __________ __________
The letter was given to... Migirdic, who brought it himself to the Markarians for their signature!
based its contention on the fact that Mr. Markarian had no recollection of it and on Migirdic's out-of-court testimony in which he stated, in his examination of July 17 and July 18, 2002, that he did not recall the manner in which the confirmation letter was completed or whether he was present [See Note 4 below]. But Migirdic acknowledged in the same examination that Noonan indeed asked him to obtain the Markarians' signature on the letter [See Note 5 below]. Hence, he was the one responsible for obtaining the signatures. It is difficult to believe that he would have done it by mail rather than going to
That fact was contested by the defendant, but there is no doubt about it whatsoever. The Bank
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the Markarians' home, as he had always done each time he had something they had to sign. Mr. Markarian had no recollection of the confirmation letter, but he recalled the audit letters he received by mail. Moreover, everyone confirmed that Mr. Markarian did not contact Migirdic after receipt of the letter, to find out what it meant. If the letter had arrived by mail, that is what he would have done, as he did for the audit letters. Migirdic also testified concerning the reasons he probably gave the Markarians for obtaining their signatures. How could he have given them reasons if he was not present when the confirmation letter Was signed? It should be added that, before the Court, Migirdic clearly acknowledged that he himself brought Noonan's confirmation letter to the Markarians and he was present when they signed it. He acknowledged that his statements on the subject during the out-of-court examination were not accurate and that he now remembered very clearly the way things occurred.
Note 4: Examination P-106B of July 17, 2002, question 471, and examination P-106C of July 18, 2002, questions 2 and 3.
Note 5: Ibid., question 470.
¶ 81 For all these reasons, the Court finds that evidence was clearly adduced that it was indeed Migirdic himself who brought the Markarians the letter from Noonan, who "explained" it to them and who had them sign it. He was also the one who brought it back to Noonan.
¶ 82 The Markarians had no recollection of having signed that letter, although they acknowledged that their signatures do indeed appear on it. They have no recollection of having ever seen it.
¶ 83 Migirdic is also not certain about the way the letter was signed. Furthermore, there are certain differences in that regard between what he said before the Court at the hearing, what he said in his out-of-court examination and what he told IDA investigator Rondeau, according to what was reported in the IDA's decision.
¶ 84 Migirdic testified before the court that, to obtain the Markarians' signature on the letter prepared by Noonan, he probably told them that a guarantee had been provided in error and that the misunderstanding would soon be corrected (perhaps the reason for the confusion over the explanations given about the audit letters). That is consistent with what he told IDA investigator Rondeau, according to the IDA's decision [See Note 6 below]. So he told the Markarians that he needed their signatures in order to correct the error. Migirdic testified that, although he provided certain explanations, they were actually [TRANSLATION] "not really needed since they trusted [him]". He added that, in fact, they believed what he said. At most, Mr. Markarian asked him: [TRANSLATION] "When will all this be over?".
Note 6: P-96 at 17, para 54.

Investigative Journalist Bruce Livesey’s account of this at

Partners #McMillan #LLP
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Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Wed Oct 14, 2015 5:24 am

I just love how easy (and criminally free) investment self-regulators can get away with the financial rape of investors, BY faked financial professionals…….see below quote from IIROC, investment industry "self" regulators in Canada:

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"*Use of the word Advisor – what this means:In this investor brochure, we have used the general term “advisor” to refer to a number of official regulatory approval categories such as Registered Representative and Investment Representative. Please note that “advisor” is not an official IIROC approval category for individuals working at IIROC-regulated firms. ”Advisor” is also not being used in this brochure to represent an official registration category."

(This comment is found on page one of this brochure from IIROC….I expect it to be deleted from use as soon as this information is noticed…..oops!) (fake "advisors" cost you double and cut your retirement in half…..but "they are richer than you think"…:)

The document that this quote comes from is found online here at IIROC

and when it is removed shortly (too candid, too revealing……too honest:) by IIROC it can also be found at the link below ... sp=sharing

Take information such as this to any reputable classaction law firm if you wish to begin the process of getting your money back from professional fraud.

Screen Shot 2015-10-14 at 6.17.24 AM.png

click to enlarge this window
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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Thu Aug 06, 2015 12:24 pm

For a glimpse at a courageous, self-represented litigant, suing TD for fraud of misrepresentation, and deception by those who promise "advisory" services to the public whilst hiding the exact license and duty of care from their clients, see this link:

Alexander Clark v TD

You are being sued for Fraud. You are the defendants.

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For a look at how CIBC cheated and took away an elderly man's investment accounts, resulting in a court judgement where the judge uses the word "fraud" 155 times, please see the case found here:

Markarian v. CIBC World Markets Inc.
[2006] J.Q. no 5467

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And for the Class Action arguments which I believe apply to millions of North American (Canadian and USA) investors, see this list of seven things cleverly hidden and concealed from most retail investment clients, which I also believe to be actionable:

Advisor Disguise/Deception
The most important class action potential on the horizon today.
Deception and intentional misdirection leads to financial abuse BY so-called financial "advisors" and their sponsoring dealers
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Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Tue May 12, 2015 10:11 am

From: larry elford []
Sent: May-08-15 5:56 PM
To: inquiries
Subject: Re: inquiry for registration/legal

Thank you very much for your prompt reply.

I wonder if you might help me one step further in my understanding of the Alberta Securities Act:

I was referred recently to Section 100 of the Alberta Securities Act, which appears to state:

Representation or holding out of registration

100(1) A person or company shall not represent that the person or company is registered under this Act unless

1. (a) the representation is true, and

2. (b) in making the representation, the person or company specifies the person or company’s category of registration under this Act and the regulations.

(2) A person or company shall not make a statement about something that a reasonable investor would consider important in deciding whether to enter into or maintain a trading or advising relationship with the person or company if the statement is untrue or omits information necessary to prevent the statement from being false or misleading in the circumstances in which it is made.

RSA 2000 cS-4 s100;2006 c30 s16

Reading the Alberta Act, it would appear that for a person to hold themselves out to be an "advisor", which has "no specific meaning in Alberta securities law", and is a generic term…….

For a person to do this would be to knowingly violate the letter or the spirit of the Act. Further that to do so, if they were actually registered as a "dealing representative", (which is the category which was called "salesperson" prior to 2009) would also be a violation of the letter or the spirit of the Act.

Finally, it would appear to be a marketing attempt to portray oneself as having the professional license qualifications of an "adviser" (otherwise known under the Act as "advising representative), whilst having no such license nor registration, nor qualifications.

It strikes me that it may just be violating either the letter, or the spirit of ALL THREE provisions of section 100 of this Act.

Would you agree with any of this in general terms?

Thank you again for your reply.

Larry Elford

inquiries <>
To: larry elford <>
RE: inquiry for registration/legal

May 12, 2015 10:16 AM

Thank you for contacting the Alberta Securities Commission (ASC)..

Any person who acts as an adviser and is not registered as an adviser under the Securities Act (Alberta) has violated Alberta securities laws (see. section 75 of the Securities Act (Alberta)). The word "adviser" is a defined term in the Securities Act (Alberta) meaning "a person or company engaging or holding itself out as engaging in the business of advising in securities or derivatives."

Regardless of what title a person attaches to himself or herself, we strongly encourage all investors to check if the person or firm from whom they are obtaining investment advice is registered with a securities regulator, a simple step which can be completed via the following website: ... px?id=1128.


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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Fri May 08, 2015 2:18 pm

Here then, for the record (along with CSA lead counsel Chris Besko's confirmation of this elsewhere on this site) is how investment customers are deceived in Canada (and the USA with similar tricks) by changing the spelling of a professional license BY ONE LETTER, to skirt the legal duties implied and promised from the law………


From: larry elford []
Sent: May-08-15 5:03 AM
To: inquiries
Cc: larry elford
Subject: inquiry for registration/legal

May 8, 2015

To: Alberta Securities Commission
Suite 600, 250–5 Street SW
Calgary Alberta T2P 0R4

(403) 297-6454
Toll Free:
(403) 297-6156
Web site:

Re: Registration inquiry

I write to seek clarification on a question of “spelling style” or legality, whichever may apply, to the use of the words “advisor” and “adviser” by persons under the jurisdiction of the ASC.

Both these words are found commonly in use as a business title, or an implied license and registration category by persons registered under the Alberta Securities Act.

My questions are these:

Am I to understand, as some have suggested, that “advisor” is a “non-regulated title”, as it is not found in the statutes of the Alberta Securities Act?

Or is it merely a spelling variation of the word which is found in the act, namely “adviser”?

It is ultimately confusing for consumers, and may make quite a difference based on the actual registration held by the person using the word or title, and also to the legal duty of care either implied or required, depending upon which meaning or spelling is used.

Can I ask a member of your legal department at the ASC to provide clarity on these 2 questions?

Thank you in advance for any help or clarification that you may be able to provide.

Best Regards,

Larry Elford

Alberta Securities Commission Reply

inquiries <>
To: larry elford <>
RE: inquiry for registration/legal

Thank you for contacting the Alberta Securities Commission (ASC).

I can tell you that “adviser” is a defined term in the Alberta Securities Act (ASA) meaning “a person or company engaging or holding itself out as engaging in the business of advising in securities or exchange contracts.” Pursuant to section 7.2 (1) of NI-103, there are two categories of registration for a firm that is required to be registered as an adviser: (1) portfolio manager; (2) restricted portfolio manager.

Individuals who conduct registerable activities for a firm registered as a “portfolio manager” or “restricted portfolio manager” must be registered as an “advising representative” or an “associate advising representative” pursuant to section 2.1(1) of NI 31-103.

An “advisor” is a generic term with no specific meaning in Alberta securities law.

As always we encourage the public to check with the CSA to determine the registration status of their adviser.

Kind regards


OSC Reply Wilson <>
To: larry elford <>
Re: File #20140324-16957 - adviser

Dear Mr. Elford:

Thank you for your inquiry to the Ontario Securities Commission (OSC) concerning the use of the term "advisor" or "adviser".

I believe you asked this question in March 2014. I have reproduced below my response to your correspondence last year, and would add that, since the first website link given in the response is no longer available, you may wish instead to review the information on the OSC's "check registration" page at this link: . Please also note that OSC staff may not provide legal advice or interpret the law on your behalf.

"Thank you for your inquiry to the Ontario Securities Commission (OSC) concerning checking registration for your adviser.

When you refer to "check your adviser" day on March 19, 2014, I believe you are referring to "Check Registration Day". Here is the link to information about this day on the OSC's website: .

"Adviser" is a legal term under securities law that describes a company or individual who is registered to give advice about securities. "Advisor" is not a legal term under securities law.

Investors often refer to the person or firm who provides an investing service to them as their "adviser" or "broker", and this is a common term used in a generic, not legal way. Business titles, designations for courses completed, and professional memberships may be informative, but the important facts for any investor are to know what the person's registration is, what products they are permitted to trade or advise about, and the services they are allowed to provide. It is important to check with the relevant provincial securities regulator to ensure that the individual and company you are dealing with is registered to trade or advise in securities, if that is part of what they are doing.

This link: on the Canadian Securities Administrator's (CSA) website provides information about checking registration. You may also find this link to Understanding Registration useful, as it describes the different categories of registration and what they mean: https://www.securities-administrators.c ... ion_EN.pdf .

Since securities law is regulated provincially, if you have specific questions about a company or individual through which you are considering investing, you may wish to check with the securities regulator in your jurisdiction for more information."


Nicole Plotkin
Senior Inquiries Officer
Ontario Securities Commission


reply from BCSC

May 11, 2015, 11:03 AM

Isaac Filate <>
To: larry elford <>
RE: seeking interpretation from BCSC

Hi Larry,

Under the BC Securities Act, if a person is engaging in, or is holding themselves out as engaging in, the business of advising another person with respect to the purchase or sale of securities then that person must be appropriately registered or exempt from registration. This is the case regardless of how that person spells ‘adviser/advisor’ in their title. For more detail, please see section 34 of the BC Securities Act (“Persons who must be registered”), the definition of “adviser” at subsection 1(1) of the Act, as well as section 1.3 of Companion Policy 31-103CP ( ... y_5__2015/).

Best Regards,

Isaac Z. Filaté
Senior Legal Counsel, Legal Services
Capital Markets Regulation Division
British Columbia Securities Commission
1200 - 701 West Georgia Street
Vancouver, BC V7Y 1L2

Tel: 604-899-6573
Find us on: Twitter | Facebook | YouTube

Please consider the environment before printing this email
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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Fri May 01, 2015 1:42 pm






When this non-regulated title (advisor) is thrown about by financial professionals, with the strong implication that there is a professional license and duty of care behind the term, and also combined with the common industry-ruse of changing the spelling of the professional "adviser" license by ONE VOWEL (to "advisor) in order to feel justified in skirting the provisions of the laws they strongly imply to follow.

An interesting short read of snippets from a case where the victims stand up to this deception and demand to get their money back. I have seen a few such cases in the past year or two, and I have not yet seen one fail when they apply some of the principles found herein.

I enclose this selection of quotes from a statement of claim filed recently, as partial substitute until I get the actual filed and court stamped case in my hands. It is or paramount importance to all North Americans, as I do not know of more than a few people (I have been in and around the industry for decades) for whom this same statement of claim (of industry deception) would not apply. The deceptions, illusions, misrepresentations are not something that the major newspapers of my country can even risk talking about… would be so "un-Canadian" to speak ill of our most trusted financial institutions. It might also threaten tens or hundreds of millions of advertising dollars, and we cannot have that….

This is one client (I know of others) who has lost everything at the hands of the professionals who deceive to derive triple profits. The others I am aware of have already gotten their money back in quiet (gagged) settlements with the bank or financial services institution involved. You will never read of those in any newspaper. Thus, I feel that the selections found herein are quite rare reading, and I hope they will cause Canadians as well as my American friends and neighbours to take positive steps to make themselves aware of "professional abuse BY financial professionals". You are already a victim.

Enclosed some snippets of civil claims either won, filed or contemplated, against banks and investment dealers who use word-magic, illusion and deception to dupe the public, and then take advantage of what the public does not know about the relationship.

Here are some quotes found as filed in Calgary Court of Queen Bench as of today: (actual PDF file to follow (with names) when obtained)

You are being sued for Fraud. You are the defendants.

It was expressed and implied in three (3) NAME REMOVED identified documents that the Plaintiff met with NAME REMOVED Inc. who signed himself off as a “financial advisor”.

It was later revealed the Plaintiff had met with NAME REMOVED who concealed from the Plaintiff that he was registered in the capacity of “Sales Person” of mutual funds with NAME REMOVED INC and not in the category he claimed to represent. Documentary evidence shows that NAME REMOVED represented himself on a NAME REMOVED Internal Transfer Form confirmed and sworn by him in discoveries and at trial as a “Financial Adviser”.

In the result of NAME REMOVED falsified representations and qualifications…..

Clearly these fraudulent misrepresentations were the root cause of NAME REMOVED negligence, and were the causation that induced the Plaintiff’s decisions

The Defendants named in this action were the registrants and responsible for registering NAME REMOVED in the (footnote 2) Canadian Securities Administrators, National Registration. In the result, the defendant’s knew or ought to have known that NAME REMOVED representations of his employment were substantially wrong but took no steps to inform the Plaintiff or the Court and hid this important fact in a fraudulent way.

Factual evidence came to light in mid-2013 that advised the Plaintiff by way of the Canadian Securities Administers, National Registration body that NAME REMOVED committed a “CIVIL FRAUD” by misrepresenting himself to the Plaintiff and the Court while under oath;

That NAME REMOVED was never duly registered in the legal capacity of a “financial adviser” for NAME REMOVED or NAME REMOVED in accordance with the Canadian Securities Administrators, National Registration body and that NAME REMOVED never ever was an employee of NAME REMOVED or NAME REMOVED

That instead, he was registered as being employed by the separate corporate entity of NAME REMOVED INC. Recorded in the Alberta Securities Commission (ASC) as a company registered as a mutual fund dealer only, during the relevant period of DATE REMOVED. In which the mutual fund license code # REMOVEDwas allocated to NAME REMOVED and admitted to be true by him.

And, that NAME REMOVED was never a registered “Financial Adviser” at any time, but was registered at the Canadian Securities Administrators, (CSA), the National Registration body, as a “Sales Person” from 2003 until 2005 with NAME REMOVED INC. (Footnote 3)Mutual Fund Sales Representative are only licensed to advise on and sell mutual fund investment products.

It is an established fact in Supreme Court of Canada binding case law [Parna v. G. & S. Properties Ltd., [1971] SCR 306, 1970 CanLII 25 (SCC) p.316] that; “Fraud is a false representation of fact, made with a knowledge of its falsehood, or recklessly, without belief in its truth, with the intention that it should be acted upon by the complaining party, and actually inducing him to act upon it”.

The Plaintiff was induced to act upon it and placed complete trust and reliance on the promised and implied service of a NAME REMOVED of a “Financial Adviser” in the opening of a NAME REMOVED. And, at NO TIME was it ever disclosed to the Plaintiff that the agent he dealt with NAME REMOVED was registered as a “Sales Person” of mutual funds only and as a consequence, did not have the necessary skills.

To repeat, NAME REMOVED was NOT a duly registered “financial advisor” for NAME REMOVED or NAME REMOVED as represented and sworn by him. Instead was duly employed with the “separate corporate entity” of NAME REMOVED INC. Specifically registered as a seller of mutual funds only and is a member of the Mutual Fund Dealers Association of Canada [MFDA].

This fraudulent misrepresentation was the original, root cause to the losses & damages and a fact of evidence that only the Defendant could know was hidden from the Plaintiff. The Plaintiff was advised by way of the NAME REMOVED Registered Plans Internal Transfer Form that he was dealing with a NAME REMOVED “Financial Adviser”, trusting that NAME REMOVED had the required expertise to what he claimed.

As a result, the acts of misrepresentations, the falsification of NAME REMOVED status of employment as to which NAME REMOVED corporate entity was his registered employer. Was the cause and effect to the wrongful “governance” of the Plaintiff’s Alberta legislated Locked in Retirement Account (LIRA), thereby incurring irreparable damages to the Plaintiff’s retirement plans?

All subsequent harmful consequences to befall the financial affairs and undue stress of the plaintiff were thus, the result of the plaintiff following the implied professional advice of an employee who at no time carried the proper registration or professional skills purported and claimed in writing by the defendants.

Effectively the plaintiff relied on those fraudulent misrepresentations and all actions of dishonesty and bad faith. The original fraudulent misrepresentations exponentially corrupted, disrupted and dislodged all actions and wrongful advice that followed.

Due to NAME REMOVED not having the expected and represented expertise of a NAME REMOVED Financial Adviser and his personal incompetence….

A standard of care was owed to the Plaintiff in proper representations to the opening and administration of his …...

But for the Plaintiff not knowing and could not know that he was dealing with a mutual fund Sales Person and not a NAME REMOVED “financial adviser” who proved to be incompetent….

It is a fact that the Plaintiff was a victim of the Defendants acts of; non-compliance to the Canadian Securities Administrators Registration, Alberta Securities Commission [ASC], Alberta Pension legislation, Pension Benefit Standards Act [PBSA], IIROC (formerly IDA) Self-Regulatory Organization Rules, Income Tax Act and TD Code of Conduct and Ethics. All of which proved the defendants unprincipled indifference for legislation, financial industry SRO rules and guidelines.

But for the Defendants named in this action breaking the law by their false representation that the Plaintiff was dealing with a properly qualified NAME REMOVED Adviser, the Plaintiff would not have entrusted his life savings held in his account to them. Nor would he have moved forward with NAME REMOVED advised retirement plans and all other decisions that caused him irreversible losses and damages that severely changed his position and ruined 10 years of the Plaintiff’s life.

The Plaintiff states that the acts of fraudulent misrepresentations were contrary to the (footnote 5) Defendant’s own published ethical standards!

Further that it was contrary to the CRIMINAL CODE of CANADA, R.S.C., 1985; c. C-4 Sections;
21 (1), a), b) c), PARTIES TO OFFENCES,
361 (1), (2), (3) FALSE PRETENCES,
380 (1) (a) (b) (c 1) (d) (e) (f), FRAUD,
465 (1) (c) CONSPIRACY.
All essential elements of a crime!

Footnote #3 3 Mutual Fund Sales Representative - Canadian Securities Institute;

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Investment Advisor Bait and Switch, GET YOUR MONEY BACK! Video related to the concepts behind this case.
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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Mon Jan 12, 2015 3:57 pm

Here I repost a case by TD against someone using the arguments of fraudulent misrepresentation:

Here is something interesting...Toronto-Dominion Bank v Christine Cushing 2007 BC Supreme Court

Toronto- Dominion won this case based on "fraudulent misrepresentation"

Here was the case law that cinched the decision in TD's favour: Are you ready for this?

(2) The Representation Must be by Words or Otherwise
[45] A representation can be implied from acts or conduct. In Mewett & Manning
at 852, reference is made to R. v. Barnard (1837), 7 C. & P. 784. In that case the
accused entered into a university shop wearing a student’s academic gown and
obtained goods. The court found that the accused had made a false representation
that he was a student by wearing a student’s gown despite not being a student.

More to come on the topic of fraudulent misrepresentation as it pertains to banks...
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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Sat Dec 27, 2014 10:04 am

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Laying criminal charges a.k.a. private prosecutions
Anyone can go to a courthouse and ask a Justice of the Peace (JP) to lay criminal charges – this is also known as commencing a 'public prosecution'. Section 504 of the Criminal Code of Canada states that "Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice".

This means that you can allege that a named person ("the accused") has committed an indictable offence within the territorial jurisdiction of the court and the JP is required to receive the information and then refer it to a court hearing where a judge or another JP will then decide whether to issue a summons to the accused.

This process is not an easy one. You need to have detailed information about the alleged offence and be able to convince the court that you will be able to produce evidence (including the names of witnesses) if the prosecution goes ahead. You will also likely be asked to prove that you have already asked the police to investigate the incident and what the results of that investigation were. Most importantly, even if the prosecution does go forward, the Crown Attorney/prosecutor can 'intervene' in the case and either take it on or withdraw the charges.

More information:

1. ... cution.asp

Generally, allegations of criminal activity are reported to the police. After the police investigate, they may lay criminal charges. However, anyone who has reasonable grounds to believe that a person has committed an offence may lay an information in writing and under oath before a Justice of the Peace.
When the information is presented to the court by a private citizen, it is then referred to either a provincial court judge or a designated justice of the peace, who holds a special hearing. The purpose of the hearing is to determine whether a summons or warrant should be issued to compel the person to attend court and answer to the charge.
This hearing, held under s. 507.1 of the Criminal Code, takes place in private, without notice to the accused person. At the hearing, the judge or justice of the peace must hear and consider all of the allegations and available evidence.
The Crown must also receive a copy of the information, get notice of the hearing, and have an opportunity to attend. The Crown may attend at the hearing without being deemed to intervene in the proceedings.
If the judge or justice of the peace decides not to issue a summons or a warrant, then the information is deemed never to have been laid.
If the judge or justice of the peace issues a summons, the person will be served with a copy of the summons, which notifies them of the charge and compels them to attend court. If the judge or justice of the peace issues a warrant, the person will be arrested and brought before a justice.
To avoid any abuse of the private prosecution process, the Criminal Code and the Crown Attorneys Act authorize Crown Counsel to supervise privately laid charges to ensure that such prosecutions are in the best interest of the administration of justice. If a summons or warrant is issued and the case involves an indictable offence, the Crown is required to take over the prosecution. So, a private citizen's right to swear an information is always subject to the Crown's right to intervene and take over the prosecution.
If the Crown intervenes, the Crown will review the matter, as it does in every other criminal case, to determine whether there is a reasonable prospect of conviction and whether a prosecution is in the public interest. If so, the Crown will proceed with the prosecution. If not, the Crown is duty-bound to withdraw the charge.

2. Ontario’s highest court recently discussed the correct procedure for private prosecutions in a case brought by anti-Native Rights ‘activist’ Gary McHale. The decision made it clear that although Crown prosecutors have the right to participate in the court hearing about whether a summons should be issued, the Crown cannot prevent from the hearing from taking place. See: ... ca361.html

3. Detailed info on private prosecutions is available from the Toronto activist group Advocacy for Respect for Cyclists (ARC): ... eProsecu...
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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Fri Nov 21, 2014 1:53 pm

TD does not come out looking good when this elderly investment victim files court application alleging fraudulent misrepresentation. The posing of persons licensed as "salesperson", posing these persons to vulnerable investors as Financial "advisor" or "adviser" is not exactly keeping with the "fair, honest and good faith" requirements of the industry.

Strongly worded claim is well worth reading, starting on page two for details. See GET YOUR MONEY BACK video related to fraud and misrepresentation by industry participants, for one view of how customers are starting to learn and understand how they have been consciously deceived by financial giants:

PDF file of court application linked here: [url] https://doc-0g-54-apps-viewer.googleuse ... p1hscdq5ae

Screen Shot 2014-11-21 at 2.05.07 PM.png
from page two of court filed document
Click to enlarge image, click twice to zoom in

PDF file of court application linked here:
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Re: Civil or Criminal Actions against companies or regulator

Postby admin » Fri Nov 14, 2014 9:21 am ... contracts/
The Supreme Court of Canada just made honesty in contracts a law

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Honesty isn’t just the best policy — it’s the law, the Supreme Court of Canada has ruled.

In a case released Thursday called Bhasin v. Hrynew, the court said Canadian contract law comes with a duty of good faith that requires parties to perform their contractual obligations honestly.

“Finding that there is a duty to perform contracts honestly will make the law more certain, more just and more in tune with reasonable commercial expectations,” wrote Mr. Justice Thomas Cromwell wrote in the unanimous seven-judge decision.

Commercial lawyers have been following the case closely. Some specific areas of law, such as employment and insurance, come with implied terms of good faith. The question was whether the court might apply the doctrine of good faith to all deals made in Canada.

“I think this is the most important contract case in 20 years,” said Neil Finkelstein of McCarthy Tétrault LLP, counsel for Harish Bhasin, the plaintiff who won the case. “We’re going to find another series of jurisprudence arising out of this case over time about how far this duty of good faith and duty of honesty goes.”

Justice Cromwell acknowledged that the common law has long resisted acknowledging a general duty of good faith in contracting outside those specific areas. The piecemeal approach of Canadian common law is out of step with the civil law in Quebec and in most U.S. jurisdictions, he wrote.

“In my view, it is time to take two incremental steps in order to make the common law less unsettled and piecemeal, more coherent and more just. The first step is to acknowledge that good faith contractual performance is a general organizing principle of the common law of contract which underpins and informs the various rules in which the common law, in various situations and types of relationships, recognizes obligations of good faith contractual performance. The second is to recognize, as a further manifestation of this organizing principle of good faith, that there is a common law duty which applies to all contracts to act honestly in the performance of contractual obligations.”
Mr. Bhasin, the plaintiff, had a business that sold RESPs. He struck a deal to sell his customers RESP products provided by the defendant. The contract automatically renewed every three years. Either party had a non-renewal right on six months’ notice. The written agreement did not require the company to provide a reason for ending the deal.

Mr. Bhasin argued that the contract was terminated in bad faith. He won a judgment in an Alberta trial court, but that decision was overturned by the Alberta Court of Appeal. The provincial appellate court found that the trial court had erred by implying a term of good faith in a deal that contained a clear, unambiguous termination clause.

The Alberta appellate ruling was appealed to the Supreme Court of Canada, which heard the case last February.

Justice Cromwell said the respondent RESP company, which was formerly known as Canadian American Financial Corp. (Canada) Ltd., misled Mr. Bhasin about the circumstances involving the termination of the agreement in May 2001. The judge awarded him damages of $87,000 plus interest.

Eli Lederman of Lenczner Slaght Royce Smith Griffin LLP, counsel for the defendants, said the case fills a gap in Canadian law by creating a general organized principle that parties are to act honestly in the performance of all contractual obligations. Yet that does raise questions, he said.

“What does it mean if you have a generalized duty to act honestly in your contractual obligations? When you exercise a contractual right not to renew an agreement, does that you mean you have to explain your reason for doing so?”

Counsel for Mr. Bhasin argued in their factum that the freedom to contract comes with reasonable limits. Good faith should exist when a party is exercising a discretionary power that can devastate a counter party, they wrote. He was represented by Mr. Finkelstein and Brandon Kain of McCarthy Tétrault LLP, John McCamus of Davis Ward Phillips & Vineberg LLP and Stephen Moreau of Cavalluzzo LLP.

“The law of contracts is not exempt from basic requirements of honesty and fairness,” Mr. Bhasin’s lawyers argued. “One need look no further than the existing jurisprudence of this court, which recognizes the duty of good faith in employment, insurance and tendering agreements, in addition to cases like this one where a discretionary power is exercised for an improper purpose so as to defeat a party’s legitimate contractual objectives.”

Mr. Lederman, Jon Laxer and Constanza Pauchulo of Lenczner Slaght, counsel for the defendant RESP company, countered that the first principle of common law contracting is that parties are bound by the terms they have agreed to, not what they ought to have agreed to. “To succeed in this appeal, Mr. Bhasin must persuade this Court to adopt a radically new contract model which would give effect to new, unbargained for rights and obligations,” they wrote.

Financial Post

(advocate comment: I wonder if investment salespersons who pose as investment "advisors", WITHOUT either holding the correct license, or providing the proper sole-loyalty, duty-of-care to the investor, will now be held to some account for this deception? see The Grand Deception articles at this forum:

Supreme Court of Canada
Thomas Cromwell
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