Civil or Criminal Actions against companies or regulators

Index of forum topics, talk to us.

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Wed Jun 11, 2014 10:50 pm

Screen Shot 2014-06-11 at 11.49.29 PM.png


Can Regulators Be Sued?
B.C. case may embolden those who feel wronged

Thursday, September 26, 2002

By James Langton

Securities regulators are in a tight spot. By failing to bring down any truly big game and hammering the small fry, they have managed to portray themselves as both draconian and a soft touch on securities scofflaws at the same time. The result is they are facing questions about their accountability and their ability to defend the public interest.

For years, the criticism of securities regulators cut one way. They were viewed as too easy on the industry. Violators often got off with a slap on the wrist or evaded punishment entirely. In the past few years, regulators have been getting tougher. But the results have been wonky. While they’ve yet to bring any major villains to account, they have come down comparatively hard on some relatively minor infractions.

A recent report from Vancouver’s Fraser Institute notes that the Ontario Securities Commission has been criticized for the way it exercises its powers in “the public interest,” particularly when it comes to settling enforcement cases.

“Technically, the securities commission is responsible for determining whether or not conduct is contrary to the public interest after holding a hearing process on a staff allegation.
However, in practice, market participants generally settle to minimize the adverse consequences of the allegation,” it says.

The wisdom of settling rather than fighting was evident in the disparity between the sanctions levied in the Yorkton Securities Inc. insider trading case. Former Yorkton CEO Scott Paterson settled with the OSC in late 2001 and agreed to a penalty of a two-year trading ban, a $1-million voluntary payment and $100,000 in costs. Former Yorkton head trader Piergiorgio Donnini contested the allegations in a hearing; in early September the OSC banned him from the market for 15 years, ordering him to pay $186,052 in costs. This was despite the fact that only two of the three commissioners on the hearing panel found that he had actually committed the violation of which he was accused.

A dissenting opinion was offered by part-time commissioner Harold Hands. Hands disagreed that Donnini had actually violated securities law. However, he found that Donnini’s actions were against the public interest, in that he should have exercised more due diligence to ensure that he did not violate the law.

The Fraser Institute paper argues that settlements are to the OSC’s advantage because it can avoid a hearing and possibly extract a voluntary payment. Those who face allegations from the OSC may prefer a settlement, it says, to avoid a hearing and bad publicity.

“While policymakers have generally turned a blind eye to the issues associated with the OSC’s use of its public interest powers, market participants will inevitably be discouraged from participating in Ontario’s capital markets if it is clear that checks and balances on the use of public interest power are inadequate,” it warns.

Donnini spoke out against the outcome of his case in an opinion column in the Financial Post. However, when he was contacted by Investment Executive for comment, he refused to say whether he had any intent to appeal the decision in court.

Following the OSC decision against Donnini, the British Columbia Court of Appeal came out with a decision that was largely in favour of two former First Marathon Securities Ltd. brokers, Rob Hartvikson and Blayne Johnson, who did appeal their regulatory hearing. The appeals court lowered penalties levied against them by the B.C. Securities Commission from $100,000 to just $10,000, but it upheld the basic decision of the BCSC, indicating that it is reluctant to interfere with a ruling by a specialized administrative tribunal. The court also expressed sympathy for the two brokers, saying in its decision: “One can hope that the alleged [reputation] damage … caused by the commission’s ruling will be somewhat mitigated by these reasons.”

The Hartvikson decision may embolden those who feel they’ve been wronged by a regulatory decision to resort to the courts, although the question of whether regulators can be held accountable in court is not an easy one. For one thing, there’s a statutory defence built into most securities acts that prevents regulators from being sued “for any act done in good faith” or for any failure to act as long as it’s in good faith.

“There is scope to sue,” says renowned Toronto securities lawyer Phil Anisman, “but you have to show bad faith.” Anisman says he is not aware of any cases that have been successful in doing that. “The other thing you could show was that the regulators were acting beyond their jurisdiction,” he says.

Another prominent securities lawyer, Joe Groia of Groia & Co. in Toronto, says not only is there scope to sue the regulators but he also believes the legislature fully intended them to be sued when it drafted the Canadian Securities Act. “I think there’s a strong argument that our legislators intended the OSC to be sued,” he says.

Because regulators are protected when they act in good faith, it follows if they can be shown to be acting in bad faith, they can be sued, Groia adds.

Anisman agrees. “There should never be immunity for bad faith. There should never be immunity for that for governmental authorities. Remember that they act for us.”

But even if a disgruntled investor has a case that can get past the regulators’ statutory protection, he or she then faces case law that protects regulators. The Supreme Court of Canada has thrown up a pretty imposing defence around provincial regulators, thanks to a recent decision, Cooper v. Hobart. In that case, investors sued British Columbia’s Registrar of Mortgage Brokers, alleging that their losses would have been avoided had it acted sooner to suspend the licence of Eron Mortgage Corp., which allegedly misused investors’ funds.

One of the investors, Cooper, sued the registrar, Hobart, alleging he had breached the duty of care that he owed the investors. The trial judge agreed with Cooper, but the decision was reversed on appeal. And the Supreme Court upheld the appeal, noting that the regulator did not owe a duty of care to investors.

Anisman says the Cooper decision bolsters the regulators’ statutory defence. “The regulator does not owe a duty of care to those the legislation is intended to protect. Even if the regulator is negligent, at common law there’s no duty.”

Anisman calls Cooper a troubling decision. “I think it’s a retrenchment in terms of our tort law. What the Supreme Court did in that case was bend over backward to limit liability of regulatory authorities for negligence.”

The consequence of this decision is that an investor will have a hard time pinning blame on the securities commissions unless he or she can prove bad faith or that regulators were operating beyond their jurisdiction.

But there are limits to the Cooper decision. Anisman notes that it does not cover registrants, so a broker may be able to make a claim, whereas an investor cannot. It is also unclear whether Cooper will also protect self-regulatory organizations, although the Supreme Court may soon be answering this question.

Chris Morgis is a former client of the now-bankrupt Toronto-based brokerage house Thomson Kernaghan & Co. Ltd. Morgis is suing Thomson Kernaghan and several of the firm’s former employees for losses he says he sustained while he was client there. Earlier this year, Morgis also filed a motion to add the Investment Dealers Association of Canada to the claim, alleging it owed a duty of care to investors and that it was negligent in not acting on complaints he made about Thomson Kernaghan.

A hearing planned for early September was aborted when the presiding judge announced he couldn’t hear the case because of an undisclosed conflict of interest. It is now scheduled for Sept. 26 (after Investment Executive’s press deadline for this issue).

Whichever way that decision goes, Groia thinks the case could land in the country’s highest court. “Clearly, that’s a case that is going to the Supreme Court,” he says. “I can’t imagine whoever loses at the Court of Appeal won’t appeal [to the Supreme Court], and I can’t imagine it not going to the Court of Appeal.”

According to court filings by the IDA, it will rely heavily on the Cooper decision to make its case. In that filing, the IDA notes that the courts have refused to recognize a duty of care from regulatory bodies to the public. Anisman suggests the principles of Cooper should cover an SRO in a case involving an investor because it performs delegated functions and it acts as an agent of the commission.

Groia isn’t so sure. “I think there are very strong arguments to distinguish Morgis from Cooper,” he says. He says the potential to sue successfully the IDA is substantially stronger than it is to go after the commissions.

“The IDA doesn’t have nearly the defence that the commissions do,” he says. “I think the IDA has every reason to expect to be held accountable. It will obviously try to rely on some of the broader statements in the decision, but when you look at the analysis, the court seems most concerned about shifting the burden to the taxpayer.”

Groia says if public regulators are held liable for investors’ losses, you essentially will be establishing an insurance scheme that shifts the investment risk from the investor to the taxpayer.

“The wonderful thing about a claim against the IDA is that if you sue the IDA, you shift the burden to the members, all of whom are dealers, and therefore it becomes like an industry insurance policy where the liability comes from other members,” he says.

He adds that this could be a positive move for the industry because it would push IDA firms to demand strong regulation from the IDA. Otherwise, “they’ll be hit in the pocketbook.”
Interestingly, the SROs are also reportedly seeking statutory protection under the Uniform Securities Law project. “One can understand that an SRO would want an express statement [of immunity] rather than having to make the argument,” says Anisman, because “there could be grey areas.”

Although the Morgis case is likely to test whether SROs enjoy the same protection as the provincial securities commissions in cases involving investors, there may also be more challenges to SROs’ authority from their members. In July, former broker Harjit Singh Gill won leave to a appeal a decision by the BCSC, which found the Canadian Venture Exchange had jurisdiction to enforce the rules of a predecessor exchange, the Vancouver Stock Exchange.

Gill’s lawyer, Georges Sourisseau of Vancouver law firm Taylor Sourisseau Mazzone Tatchell, reports that filings continue and a date for the hearing has yet to be set.

Also, a Montreal-based brokerage house, Resolution Capital Inc., says in a news release it has requested an injunction in Quebec’s Superior Court contesting the jurisdiction of the IDA and the legality of its bylaws.

Former OSC commissioner and securities lawyer Glorianne Stromberg says that the system’s accountability needs to be examined. “There’s a need to get the whole issue of regulatory accountability on the table,” she says. “Perhaps if the IDA and securities commissions are exonerated from liability, there will be an argument that the Crown itself is liable for improper delegation and/or failure to oversee the activities of its agents adequately. This seems to be a theme that has been developing in the blood safety/water safety-type situations.”

In its paper, the Fraser Institute suggests the OSC may be falling behind its international counterparts in its own governance. It recommends restructuring the OSC along the lines of Britain’s Financial Services Authority. And it suggests that the Minister of Finance could take a more active role in the OSC’s oversight.

Indeed, Stromberg points out that ultimate responsibility lies with elected officials and the voters who put them there.

“If we don’t like what they are doing or they are not doing, we should do something about this on Voting Day and by making our views widely known to those we’ve elected,” she says.IE


http://investorvoice.ca/PI/192.html
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Wed Mar 12, 2014 10:26 am

Screen Shot 2014-03-12 at 11.18.39 AM.png


(Advocate comment.....this article speaks to one of the top methods of financial giants to cheat society.....one of the best secrets of financial abusers is the ability to keep their abuses a secret. The powerful banks and investment dealers are able to "out-laywer" their victims nearly every time, and those few who persevere are offered a partial return of their own money "only" on condition of confidentiality......it allows systemic financial abuse to be used against an entire society, one victim at a time...hundreds of billions of dollars can be gained in this manner by financial players)

G.M. has announced the recall of 1.4 million cars due to a faulty ignition switch (N.Y. Times 2/28/14). It admits to 13 deaths related to the problem. Apparently the first, Brooke Melton of Georgia was killed in a 2010 crash, and her case was settled under a confidentiality agreement. I have been railing for decades against secret settlements which are designed to conceal information about dangerous or defective products from the public.

There are many instances in which confidentiality is appropriate when a case is settled. For instance, there is no reason to force the disclosure of the amount of the settlement. There also may be personal reasons to avoid disclosure. But frequently even those reasons can be to conceal wrongful conduct -- sexual harassment or abuse, malpractice by doctors, sexual molestation by priests, etc. On the other hand, cases are frequently settled privately to avoid humiliation, embarrassment, possible adverse economic consequences and expense from false or frivolous claims.

Defense lawyers justify their participation in these secrecy agreements which are not in the public interest by asserting their duty to their clients. Obviously publicizing a major defect will affect future sales and encourage further litigation. Plaintiffs and their lawyers are often given the choice of accepting a satisfactory settlement conditioned upon confidentiality or going to trial and choose the former as preferable.

What is needed is an ethical rule that prohibits lawyers from demanding or accepting confidentiality as a condition of settlement if there is a good faith belief that a product is defective and dangerous. If the agreement is good for the client but bad for the public, the public interest should prevail. Lawyers should not be party to concealing dangerous products and putting the public at risk.

http://www.huffingtonpost.com/judge-h-l ... f=business
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Thu Mar 06, 2014 3:32 pm

Screen Shot 2014-03-06 at 3.28.57 PM.png


Brace Yourselves, Investors
By Jacob H. Zamansky Mar 5, 2014, 1:39 PM Author's Blog

The business-friendly U.S. Supreme Court will shortly decide two cases that could impact investors’ recovery rights for decades.

The key question is whether the Court will roll back existing law that currently protects investors. The stakes for Mom and Pop investors are huge; if the business lobby wins either of these cases, it would severely limit investors’ ability to have their grievances stemming from securities fraud and abuses heard as a class action.

First, today, the Court will hear oral argument in “Halliburton.” This is the big enchilada because the Court will review the continuing validity of the “fraud-on-the-market” standard. Eliminating this standard “would mean the demise of private securities [class] actions and the deterrent and compensatory role they serve” according to the plaintiff’s lawyer in a report by Greg Stohr of Bloomberg.

Under that standard, the law presumes that false information (think phony quarterly financial results) issued by a public company influenced the price of the stock. That presumption is in danger of being extinguished for a group of investors suing in a class action.

The defendants argue in their court submission that plaintiffs should at least be required to prove that the alleged misrepresentations actually distorted the market price. That requirement in turn “would preclude class actions because it would require judges to conduct a case-by-case inquiry into the circumstances of each shareholder” according to Bloomberg’s Stohr.

That means no class actions and no company liability for massive frauds like Enron or WorldCom. The business lobby is licking its chops on this one.

The second case is “Fifth Third.” Here the Court will address a split in the circuit courts concerning the applicable pleading requirements for claims that ERISA fiduciaries imprudently invested the assets of employee stock ownership plans in employer-company stock.

Remember, ERISA is a federal law that sets minimum standards for pension plans in private industry. ERISA does not require any employer to establish a pension plan. It only requires that those who establish plans must meet certain minimum standards and requires accountability of plan fiduciaries.

In “Fifth Third,” the Court may decide to make it more difficult for company employees to recover under the ERISA law if employers commit stock fraud. In other words, the Court could gut ERISA, which is designed to protect millions of employees who own company stock in an employer stock plan.

Decisions favoring business in these cases could set investors rights back to the Stone Age. Brace yourselves, investors.
With a conservative 5-4 majority on the Court, Chief Justice Roberts will be the Kingmaker as he was in his surprise decision last year to vote to uphold the Obamacare law.
The question is, will Chief Justice Roberts decide for big business or for the investing public? Mom and Pop investors should be ready for a punch to the gut.
Zamansky LLC are investment and stock fraud attorneys representing investors in federal and state litigation and arbitration against financial institutions.


http://wallstreetpit.com/102870-brace-y ... nt-3343109
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Mon Mar 03, 2014 3:16 pm

Screen Shot 2014-03-03 at 3.14.19 PM.png


Screen Shot 2014-03-03 at 3.14.33 PM.png


This week, the US Supreme Court narrowed the scope of the preemption provisions of the Securities Litigation Uniform Standards Act (SLUSA), which bars certain state law-based securities class actions. As a result, securities fraud class claims against secondary actors, such as accountants, lawyers and investment advisers, which are barred under the federal securities laws, may proceed under state law.

The issue before the Court was the reach of the SLUSA statutory requirement that the state law class action concern “a misrepresentation or omission of a material fact in connection with the purchase or sale of a covered security,” i.e., a security “listed or authorized for listing on a national securities exchange” (emphasis added). Before the Court were consolidated state law-based class actions brought against various law firms, investment advisers and insurance brokers, which allegedly aided or concealed Allen Stanford’s multibillion dollar Ponzi scheme involving the sale of certificates of deposits. The CDs issued by Stanford’s bank, Stanford International Bank, were admittedly uncovered securities, but the plaintiffs alleged that they were misled to believe the CDs were backed by covered securities, i.e., marketable stocks and bonds.

The Court held, in a 7-2 decision, that under SLUSA the “fraudulent misrepresentation or omission is not made ‘on connection with’ . . . a ‘purchase of sale of a covered security’ unless it is material to a decision by one or more individuals (other than the fraudster) to buy or sell a ‘covered security.’” The plaintiffs had alleged that they were misled to believe that Stanford International Bank was using their investments to purchase marketable assets to ensure the liquidity of their CD investments, when in fact Stanford was using the funds to finance an opulent lifestyle, pay off other investors and make speculative real estate investments in the Caribbean. The Court found that these allegations were not enough to satisfy the requisite “in connection with” and “materiality” elements of SLUSA. The Court explained that the misrepresentations by Stanford (the fraudster) concerned his bank’s purchase (in truth, non-purchase) of publicly traded assets (covered securities), and did not concern the plaintiffs’ purchase of the CDs (uncovered securities). Justice Breyer, writing for the majority, emphasized that the Court’s interpretation of “in connection with” was consistent with SLUSA and other federal securities laws.

The dissent disagreed, arguing that the majority’s narrow interpretation of the language of SLUSA was inconsistent with the Court’s prior precedent holding that the “in connection with” requirement is broadly construed and requires only that the fraud “coincide” with the covered security transaction. The dissent also raised a concern that the ruling would have an adverse effect on the market by limiting the Securities and Exchange Commission’s enforcement powers under § 10(b) of the Securities Exchange Act, which uses the same “in connection with” language as the SLUSA. The dissent also raised concerns that the ruling stripped “essential protections for our national securities market” and will drive up legal costs by exposing secondary actors to liability, which had been blocked by the Court’s prior decisions. The majority responded that neither the dissent nor the SEC could point to any prior SEC enforcement action that would have been barred based on the majority’s reading of SLUSA. Indeed, the SEC and Department of Justice had successfully prosecuted claims resulting in a prison sentencing for Stanford and a $6 billion forfeiture order.

Chadbourne & Parke LLP v. Troice et al., No. 12-79 (US February 26, 2014).

©2014 Katten Muchin Rosenman LLP
Printer-friendly ShareThis Email this Article Download PDF
About The Author

Emily Stern
Partner
Emily Stern focuses her practice on complex commercial civil litigation and white collar criminal investigations and defense.

In civil matters, Emily represents clients in individual and class actions, as well as at bench and jury trials, before federal, state and appellate courts and arbitral tribunals. Her litigation experience extends to consumer and securities fraud putative class actions; shareholder derivative suits and complex contract, licensing and partnership disputes in a variety of industries. She represents clients in the finance, pharmaceuticals, medical devices,...

emily.stern@kattenlaw.com
212-940-8515
http://www.kattenlaw.com

(advocate comments: I wonder how the misrepresentation of the "advisor" license and implied duty of care might fit into things. My thought is that it becomes pretty clear that virtually "anything" sold by a person who misrepresents his or her professional qualifications is fraudulent. Here is another expert from a post found on this site:

""if broker-dealers are allowed to hold themselves out as "financial advisers" or "financial consultants" in order to sell their services, their legal obligations should be commensurate with those of investment advisers. Courts and arbitrators131 should deem it misleading for broker-dealers to hold themselves out as being advisers without accepting the legal responsibilities attendant to that title. In disputes between customers and broker-dealers, a customer should be permitted to introduce as evidence the firm's advertising and explain how it affected his understanding of his relationship with his broker. In turn, the firm or registered representative will have an opportunity to demonstrate that they made it clear to the customer that the registered representative was a salesperson and did not owe a fiduciary duty to the customer. The judge or the arbitrator should carefully consider the evidence presented by both sides and make an assessment of the likely impact of the firm's advertising on the customer's understanding and expectations about his relationship with his broker-dealer." Pages 54, 55

"Specifically, if the advertising created a reasonable expectation that the broker-dealer was more than a salesperson, then it should be responsible for monitoring the customers' accounts and providing updated information so that the customer and broker together can reevaluate the customer's financial situation in light of changing market conditions - just as the advertisements promise." page 55

from
Screen Shot 2014-03-03 at 3.23.50 PM.png


found here http://scholarship.law.uc.edu/cgi/viewc ... t=fac_pubs

http://www.natlawreview.com/article/sup ... reempt-sta

========================

Or as top Canadian Securities lawyer said it so simply in the National Post a while back: From “Understanding Misleading Financial Advisor Titles – Your Right to Know” Bryon C. Binkholder
2. "Anything else is fraud, because the seller is delivering a service different from what the consumer thinks he or she is buying. " Edward Waitzer article, Financial Post · Tuesday, Feb. 15, 2011) (Mr. Waitzer is a Bay Street Lawyer and former Securities Commission chair, and this quote ( by another person) appeared in his article.
viewtopic.php?f=1&t=173&p=3438&hilit=waitzer&sid=315213c6fd740f3160d45ff7965fd5de#p3438

=========================

Finally, just to beat it entirely to death, here is my advocate comment on the matter, video

http://www.youtube.com/watch?v=KH6XMXlf ... AQ&index=2

1980_2009_08_035.JPG
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Sat Mar 01, 2014 7:55 am

Screen Shot 2013-03-04 at 10.22.34 AM.png

The following list was complied by a friend in Kelowna, who I came to know when his 90 year old father was required to spend years and years in court, just to gain an honest hearing with any of the financial and investment firms he dealt with. It was this man, Alan, who pointed out to to me that "The criminal code is being ignored in all matters to do with banks and investment houses. The are getting a free pass due to setting up their own regimes".

Here are his notes on important matters that are costing a billion a week to Canadian citizens, and a far greater amount to Americans.

Or, as another BC resident tells it like she felt it: Fraud is theft, committed with a smile - and trust is the weapon used. Leonne Wilson Jones
================================================================================================================================================
Criminal Code of Canada Notes on False Pretenses, False Statements,
Fraud Involving Securities
Summarized from Martin’s Criminal Code 2010

False Pretence / Exaggeration / Questions of Fact

361.1 (1) A false pretense 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 it is made with fraudulent intent to induce the person to whom it is made to act on it.
(2) Exaggerated commendation or depreciation of the quality of anything is not a false pretence unless it is carried to such an extent that it amounts to a fraudulent misrepresentation of fact.

False Pretence or False Statement

362. (1) Every one commits an offence who
(a) by a false pretence, whether directly or through the medium of a contract obtained by a false pretense, obtains anything in respect of which the offence of theft may be committed or causes it to be delivered to another person;
(c) knowingly makes or causes to be made, directly or indirectly, a false statement in writing with intent that it should be relied on, with respect to the financial condition or means or ability to pay of himself or herself or any person or organization that he or she is interested in or that he or she acts for, for the purpose of procuring, in any form whatever, whether for his or her benefit or the benefit of that person or organization.

Obtaining credit by fraud or false pretense [subsec. (1)(b)] … Furthermore, there is a presumption that where money was obtained by a false pretense, prima facie , there is an intent to defraud.

Obtaining Execution of Valuable Security by Fraud

363. Every one who, with intent to defraud or injure another person, by a false pretense causes or induces any person
(a) to execute, make, accept, endorse or destroy the whole or any part of a valuable security, or
(b) to write, impress or affix a name or seal on any paper or parchment in order that it may afterwards be made or converted into or used or dealt with as a valuable security,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. R.S., C-34, s. 321.

The following is extracted from the Justice Department Criminal Code of Canada:

PART IX
OFFENCES AGAINST RIGHTS OF PROPERTY
Interpretation
Definitions
321. In this Part,

“break”
« effraction »

“break” means
(a) to break any part, internal or external, or
(b) to open any thing that is used or intended to be used to close or to cover an internal or external opening;

“credit card”
« carte de crédit »

“credit card” means any card, plate, coupon book or other device issued or otherwise distributed for the purpose of being used
(a) on presentation to obtain, on credit, money, goods, services or any other thing of value, or
(b) in an automated teller machine, a remote service unit or a similar automated banking device to obtain any of the services offered through the machine, unit or device;

“document”
« document »

“document” means any paper, parchment or other material on which is recorded or marked anything that is capable of being read or understood by a person, computer system or other device, and includes a credit card, but does not include trade-marks on articles of commerce or inscriptions on stone or metal or other like material;

“exchequer bill”
« bon du Trésor »

“exchequer bill” means a bank-note, bond, note, debenture or security that is issued or guaranteed by Her Majesty under the authority of Parliament or the legislature of a province;

“exchequer bill paper”
« papier de bons du Trésor »

“exchequer bill paper” means paper that is used to manufacture exchequer bills;

“false document”
« faux document »

“false document” means a document
(a) the whole or a material part of which purports to be made by or on behalf of a person
(i) who did not make it or authorize it to be made, or
(ii) who did not in fact exist,
(b) that is made by or on behalf of the person who purports to make it but is false in some material particular,
(c) that is made in the name of an existing person, by him or under his authority, with a fraudulent intention that it should pass as being made by a person, real or fictitious, other than the person who makes it or under whose authority it is made;

“revenue paper”
« papier de revenu »

“revenue paper” means paper that is used to make stamps, licences or permits or for any purpose connected with the public revenue.
R.S., 1985, c. C-46, s. 321; R.S., 1985, c. 27 (1st Supp.), s. 42.


Forgery and Offences Resembling Forgery

FORGERY / Making false document / When forgery complete / Forgery complete though document incomplete.

366. (1) Every one commits forgery who makes a false document, knowing
it to be false with intent
(a) that it should in any way be used or acted on as genuine, to the prejudice of anyone whether within Canada or not; or
(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.
(2) Making a false document includes:
(a) altering a genuine document in any material part;
(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; …
(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine. R.S., c. C-34, s. 324.


Cross References

374. Drawing document without authority.

375. Obtaining by forged document.

Drawing document without authority, etc.
374. Every one who
(a) with intent to defraud and without lawful authority makes, executes, draws, signs, accepts or endorses a document in the name or on the account of another person by procuration or otherwise, or
(b) makes use of or utters a document knowing that it has been made, executed, signed, accepted or endorsed with intent to defraud and without lawful authority, in the name or on the account of another person, by procuration or otherwise,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 332.
Obtaining, etc., by instrument based on forged document
375. Every one who demands, receives or obtains anything, or causes or procures anything to be delivered or paid to any person under, on or by virtue of any instrument issued under the authority of law, knowing that it is based on a forged document, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 333.
ss. 397 to 402, falsification of books and documents in relation to contracts and trade

Falsification of Books and Documents
Books and documents
397. (1) Every one who, with intent to defraud,
(a) destroys, mutilates, alters, falsifies or makes a false entry in, or
(b) omits a material particular from, or alters a material particular in,
a book, paper, writing, valuable security or document is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Privy
(2) Every one who, with intent to defraud his creditors, is privy to the commission of an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 355.
Falsifying employment record
398. Every one who, with intent to deceive, falsifies an employment record by any means, including the punching of a time clock, is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 398; 1992, c. 1, s. 60(F).
False return by public officer
399. Every one who, being entrusted with the receipt, custody or management of any part of the public revenues, knowingly furnishes a false statement or return of
(a) any sum of money collected by him or entrusted to his care, or
(b) any balance of money in his hands or under his control,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 357.
False prospectus, etc.
400. (1) Every one who makes, circulates or publishes a prospectus, a statement or an account, whether written or oral, that he knows is false in a material particular, with intent
(a) to induce persons, whether ascertained or not, to become shareholders or partners in a company,
(b) to deceive or defraud the members, shareholders or creditors, whether ascertained or not, of a company, or
(c) to induce any person to
(i) entrust or advance anything to a company, or
(ii) enter into any security for the benefit of a company,
(d) [Repealed, 1994, c. 44, s. 26]
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Definition of “company”
(2) In this section, “company” means a syndicate, body corporate or company, whether existing or proposed to be created.
R.S., 1985, c. C-46, s. 400; 1994, c. 44, s. 26.
Obtaining carriage by false billing
401. (1) Every one who, by means of a false or misleading representation, knowingly obtains or attempts to obtain the carriage of anything by any person into a country, province, district or other place, whether or not within Canada, where the importation or transportation of it is, in the circumstances of the case, unlawful is guilty of an offence punishable on summary conviction.
Forfeiture
(2) Where a person is convicted of an offence under subsection (1), anything by means of or in relation to which the offence was committed, on such conviction, in addition to any punishment that is imposed, is forfeited to Her Majesty and shall be disposed of as the court may direct.
R.S., c. C-34, s. 359.
Trader failing to keep accounts
402. (1) Every one who, being a trader or in business,
(a) is indebted in an amount exceeding one thousand dollars,
(b) is unable to pay his creditors in full, and
(c) has not kept books of account that, in the ordinary course of the trade or business in which he is engaged, are necessary to exhibit or explain his transactions,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Saving
(2) No person shall be convicted of an offence under this section
(a) where, to the satisfaction of the court or judge, he
(i) accounts for his losses, and
(ii) shows that his failure to keep books was not intended to defraud his creditors; or
(b) where his failure to keep books occurred at a time more than five years prior to the day on which he was unable to pay his creditors in full.
R.S., c. C-34, s. 360.
Synopsis: Forgery

This section describes the offense of forgery. Every person who makes a false document, knowing it to be false, with the intent that it should be used as genuine to the prejudice of another person, or that another person should be induced, believing the document to be genuine, to do or refrain from doing anything, commits the offence of forgery.

Annotations – Meaning of “false document”

The provisions of this subsection do not exclude the definition of “false document” in s. 321. Thus the accused may be convicted of forgery where he makes a “false document” as that phrase is defined in s. 321. Specifically, the accused makes a “false document: where he prepares a document which is false in some material particular. A document which is false in reference to the very purpose for which it was created is clearly one which is false in a material particular…
It is not necessarily the case that a document which merely contains a lie falls within the definition of a false document. However, a document which is false in reference to the very purpose for which it was created is one that is false in a material particular within the meaning of s. 321 and therefore capable of founding a conviction under this section. R. v. Ogilvie (1993), 81 C.C.C. (3d) 125, [1993] R.J.Q. 453 (C.A.)

Punishment for Forgery

367. Every one who commits forgery
(a) is guilty of an indictable offence and liable to imprisonment for a term on exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction. R.S.C., c. C-34, 325; 1994. C. 44, s. 24; 1997, c. 18, s. 24.

Cross References

Forgery is defined in s. 366. This offence may be the basis for an application for an authorization to intercept private communications by reason of s. 183. Forgery is an enterprise crime offence for purposes of Part XII.2

Forgery and Offences Resembling Forgery
Forgery
366. (1) Every one commits forgery who makes a false document, knowing it to be false, with intent
(a) that it should in any way be used or acted on as genuine, to the prejudice of any one whether within Canada or not; or
(b) that a person should be induced, by the belief that it is genuine, to do or to refrain from doing anything, whether within Canada or not.
Making false document
(2) Making a false document includes
(a) altering a genuine document in any material part;
(b) making a material addition to a genuine document or adding to it a false date, attestation, seal or other thing that is material; or
(c) making a material alteration in a genuine document by erasure, obliteration, removal or in any other way.
When forgery complete
(3) Forgery is complete as soon as a document is made with the knowledge and intent referred to in subsection (1), notwithstanding that the person who makes it does not intend that any particular person should use or act on it as genuine or be induced, by the belief that it is genuine, to do or refrain from doing anything.
Forgery complete though document incomplete
(4) Forgery is complete notwithstanding that the false document is incomplete or does not purport to be a document that is binding in law, if it is such as to indicate that it was intended to be acted on as genuine.
R.S., c. C-34, s. 324.
Punishment for forgery
367. Every one who commits forgery
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 367; 1994, c. 44, s. 24; 1997, c. 18, s. 24.
Uttering forged document
368. (1) Every one who, knowing that a document is forged,
(a) uses, deals with or acts on it, or
(b) causes or attempts to cause any person to use, deal with or act on it,
as if the document were genuine,
(c) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(d) is guilty of an offence punishable on summary conviction.
Wherever forged
(2) For the purposes of proceedings under this section, the place where a document was forged is not material.
R.S., 1985, c. C-46, s. 368; 1992, c. 1, s. 60(F); 1997, c. 18, s. 25.
http://laws.justice.gc.ca/fra/C-46/page-6.html - codese:369


Uttering Forged Document

s. 374 – drawing documents without authority; ss. 397 to 402: falsification of books and documents in relation to contracts and trade

Drawing document without authority, etc.
374. Every one who
(a) with intent to defraud and without lawful authority makes, executes, draws, signs, accepts or endorses a document in the name or on the account of another person by procuration or otherwise, or
(b) makes use of or utters a document knowing that it has been made, executed, signed, accepted or endorsed with intent to defraud and without lawful authority, in the name or on the account of another person, by procuration or otherwise,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 332.
Obtaining, etc., by instrument based on forged document
375. Every one who demands, receives or obtains anything, or causes or procures anything to be delivered or paid to any person under, on or by virtue of any instrument issued under the authority of law, knowing that it is based on a forged document, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
R.S., c. C-34, s. 333.
Falsification of Books and Documents
Books and documents
397. (1) Every one who, with intent to defraud,
(a) destroys, mutilates, alters, falsifies or makes a false entry in, or
(b) omits a material particular from, or alters a material particular in,
a book, paper, writing, valuable security or document is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Privy
(2) Every one who, with intent to defraud his creditors, is privy to the commission of an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 355.
Falsifying employment record
398. Every one who, with intent to deceive, falsifies an employment record by any means, including the punching of a time clock, is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 398; 1992, c. 1, s. 60(F).
False return by public officer
399. Every one who, being entrusted with the receipt, custody or management of any part of the public revenues, knowingly furnishes a false statement or return of
(a) any sum of money collected by him or entrusted to his care, or
(b) any balance of money in his hands or under his control,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 357.
False prospectus, etc.
400. (1) Every one who makes, circulates or publishes a prospectus, a statement or an account, whether written or oral, that he knows is false in a material particular, with intent
(a) to induce persons, whether ascertained or not, to become shareholders or partners in a company,
(b) to deceive or defraud the members, shareholders or creditors, whether ascertained or not, of a company, or
(c) to induce any person to
(i) entrust or advance anything to a company, or
(ii) enter into any security for the benefit of a company,
(d) [Repealed, 1994, c. 44, s. 26]
is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
Definition of “company”
(2) In this section, “company” means a syndicate, body corporate or company, whether existing or proposed to be created.
R.S., 1985, c. C-46, s. 400; 1994, c. 44, s. 26.
Obtaining carriage by false billing
401. (1) Every one who, by means of a false or misleading representation, knowingly obtains or attempts to obtain the carriage of anything by any person into a country, province, district or other place, whether or not within Canada, where the importation or transportation of it is, in the circumstances of the case, unlawful is guilty of an offence punishable on summary conviction.
Forfeiture
(2) Where a person is convicted of an offence under subsection (1), anything by means of or in relation to which the offence was committed, on such conviction, in addition to any punishment that is imposed, is forfeited to Her Majesty and shall be disposed of as the court may direct.
R.S., c. C-34, s. 359.
Trader failing to keep accounts
402. (1) Every one who, being a trader or in business,
(a) is indebted in an amount exceeding one thousand dollars,
(b) is unable to pay his creditors in full, and
(c) has not kept books of account that, in the ordinary course of the trade or business in which he is engaged, are necessary to exhibit or explain his transactions,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
Saving
(2) No person shall be convicted of an offence under this section
(a) where, to the satisfaction of the court or judge, he
(i) accounts for his losses, and
(ii) shows that his failure to keep books was not intended to defraud his creditors; or
(b) where his failure to keep books occurred at a time more than five years prior to the day on which he was unable to pay his creditors in full.
R.S., c. C-34, s. 360.
Synopsis

This section describes the offence of uttering a forged document. Any person who, with knowledge that a document is forged, uses or acts upon it as though it were genuine is guilty of the offence of uttering. … that an intention to defraud is not an element of the offence under this section. Rather, the intent required is the intent to deceive, such an interpretation is consistent with the forgery offense defined by s. 366(1)(b) which as well does not require proof of an intent to defraud.

Drawing Document Without Authority Etc.

374. Every one who
(a) with intent to defraud and without lawful authority makes, executes, draws, signs, accepts or endorses a document in the name or on the account of another person by procuration or otherwise, or
(b) makes use of or utters a document knowing that it has been made, executed, signed, accepted or endorsed with intent to defraud and without lawful authority, in the name or on the account of another person, by procuration or otherwise,
is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. R.S., c. C-34, s. 332.

Synopsis

This section describes the offence of drawing or using a document without authority. Anyone who makes, executes, draws, signs, accepts or endorses a document in the name of or on behalf of another person without lawful authority and with an intention to defraud, or who knowingly makes use of, or utters such a document, commits an indictable offence. The maximum term of punishment is 14 years’ imprisonment.

Obtaining, Etc, by Instrument Based on Forged Document

375. Everyone who demands, receives or obtains anything, or causes or procures anything to be delivered or paid to any person under, on, or by virtue of any instrument issued under the authority of law, knowing that it is based on a forged document, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. R.S., c. C-34, s. 333.

Synopsis

This section creates the offence of using an instrument based on a forged document. Anyone who demands, receives or obtains anything, or causes anything to be delivered or paid, by virtue of an instrument issued under legal authority, but knowing that it is based on a forged document, commits an indictable offence. The maximum term of punishment is 14 years…
Sections 487.012 to 487.017 provide procedures for the making of production orders that would require persons to produce documents, data or information to police officers or public officers designated in the order.

Information for general warrant
487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
Limitation
(2) Nothing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person.
Search or seizure to be reasonable
(3) A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.
Video surveillance
(4) A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.
Other provisions to apply
(5) The definition “offence” in section 183 and sections 183.1, 184.2, 184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and 194 to 196 apply, with such modifications as the circumstances require, to a warrant referred to in subsection (4) as though references in those provisions to interceptions of private communications were read as references to observations by peace officers by means of television cameras or similar electronic devices of activities in circumstances in which persons had reasonable expectations of privacy.
Notice after covert entry
(5.1) A warrant issued under subsection (1) that authorizes a peace officer to enter and search a place covertly shall require, as part of the terms and conditions referred to in subsection (3), that notice of the entry and search be given within any time after the execution of the warrant that the judge considers reasonable in the circumstances.
Extension of period for giving notice
(5.2) Where the judge who issues a warrant under subsection (1) or any other judge having jurisdiction to issue such a warrant is, on the basis of an affidavit submitted in support of an application to vary the period within which the notice referred to in subsection (5.1) is to be given, is satisfied that the interests of justice warrant the granting of the application, the judge may grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
Provisions to apply
(6) Subsections 487(2) and (4) apply, with such modifications as the circumstances require, to a warrant issued under subsection (1).
Telewarrant provisions to apply
(7) Where a peace officer believes that it would be impracticable to appear personally before a judge to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.
Definitions
487.011 The following definitions apply in sections 487.012 to 487.017.

“data”
« données  »

“data” has the same meaning as in subsection 342.1(2).

“document”
« document »

“document” means any medium on which is recorded or marked anything that is capable of being read or understood by a person or a computer system or other device.
2004, c. 3, s. 7.
Production order
487.012 (1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a),
(a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or
(b) to prepare a document based on documents or data already in existence and produce it.
Production to peace officer
(2) The order shall require the documents or data to be produced within the time, at the place and in the form specified and given
(a) to a peace officer named in the order; or
(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.
Conditions for issuance of order
(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that
(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;
(b) the documents or data will afford evidence respecting the commission of the offence; and
(c) the person who is subject to the order has possession or control of the documents or data.
Terms and conditions
(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.
Power to revoke, renew or vary order
(5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.
Application
(6) Sections 489.1 and 490 apply, with any modifications that the circumstances require, in respect of documents or data produced under this section.
Probative force of copies
(7) Every copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this or any other Act of Parliament and has the same probative force as the original document would have if it had been proved in the ordinary way.
Return of copies
(8) Copies of documents produced under this section need not be returned.
2004, c. 3, s. 7.
Production order — financial or commercial information
487.013 (1) A justice or judge may order a financial institution, as defined in section 2 of the Bank Act, or a person or entity referred to in section 5 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, unless they are under investigation for an offence referred to in paragraph (4)(a), to produce in writing the account number of a person named in the order or the name of a person whose account number is specified in the order, the status and type of the account, and the date on which it was opened or closed.
Identification of person named in the order
(2) For the purpose of confirming the identity of the person named in the order or whose account number is specified in the order, the production order may require the financial institution, person or entity to produce that person’s date of birth, current address and any previous addresses.
Production to peace officer
(3) The order shall require the information to be produced within the time, at the place and in the form specified and given
(a) to a peace officer named in the order; or
(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.
Conditions for issuance of order
(4) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to suspect that
(a) an offence against this Act or any other Act of Parliament has been or will be committed;
(b) the information will assist in the investigation of the offence; and
(c) the institution, person or entity that is subject to the order has possession or control of the information.
Terms and conditions
(5) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.
Power to revoke, renew or vary order
(6) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.
2004, c. 3, s. 7.
Power of peace officer
487.014 (1) For greater certainty, no production order is necessary for a peace officer or public officer enforcing or administering this or any other Act of Parliament to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing.
Application of section 25
(2) A person who provides documents, data or information in the circumstances referred to in subsection (1) is deemed to be authorized to do so for the purposes of section 25.
2004, c. 3, s. 7.
Application for exemption
487.015 (1) A person named in an order made under section 487.012 and a financial institution, person or entity named in an order made under section 487.013 may, before the order expires, apply in writing to the judge who issued the order, or a judge of the same territorial division as the judge or justice who issued the order, for an exemption from the requirement to produce any document, data or information referred to in the order.
Notice
(2) A person, financial institution or entity may only make an application under subsection (1) if they give notice of their intention to do so to the peace officer or public officer named in the order, within 30 days after it is made.
Order suspended
(3) The execution of a production order is suspended in respect of any document, data or information referred to in the application for exemption until a final decision is made in respect of the application.
Exemption
(4) The judge may grant the exemption if satisfied that
(a) the document, data or information would disclose information that is privileged or otherwise protected from disclosure by law;
(b) it is unreasonable to require the applicant to produce the document, data or information; or
(c) the document, data or information is not in the possession or control of the applicant.
2004, c. 3, s. 7.
Self-incrimination
487.016 No person is excused from complying with an order made under section 487.012 or 487.013 on the ground that the document, data or information referred to in the order may tend to incriminate them or subject them to any proceeding or penalty, but no document prepared by an individual under paragraph 487.012(1)(b) may be used or received in evidence against that individual in any criminal proceedings subsequently instituted against them, other than a prosecution under section 132, 136 or 137.
2004, c. 3, s. 7.
Offence
487.017 A financial institution, person or entity who does not comply with a production order made under section 487.012 or 487.013 is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000 or imprisonment for a term not exceeding six months, or to both.
2004, c. 3, s. 7.
Assistance order
487.02 Where an authorization is given under section 184.2, 184.3, 186 or 188, a warrant is issued under this Act or an order is made under subsection 492.2(2), the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance, where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.
1993, c. 40, s. 15; 1997, c. 18, s. 43.
Execution in another province
487.03 (1) If a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province.
Endorsement
(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.
(2) [Repealed, 2007, c. 22, s. 7]
1993, c. 40, s. 15; 1995, c. 27, s. 1; 2000, c. 10, s. 13; 2007, c. 22, s. 7; 2008, c. 18, s. 12.
Annotations – Meaning of Fraud Generally

The classic definition of fraud is found in the judgement Buckley J., in London & Globe Finance Corp. Ltd. (Re), (1903) 1 Ch. 728 at pp. 732-3 “To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud by deceit to induce a course of action.”

…Scott v. Metropolitan Police Commissioner (1974) 60 Cr. App. R. 124 (H.L.) [held] that this definition is not exhaustive and that to “defraud” ordinarily means “to deprive a person dishonestly of something which is his or of something to which he is or would or might but for the perpetration of the fraud, be entitled.”
Meaning of “Other Fraudulent Means” Generally: … Other fraudulent means includes mere omission where, through silence, an individual hides from the other person a fundamental and essential information. The silence or omission must be such that it would mislead a reasonable person. R.v. Emond (1997), 117 C.C.C. (3d) 275 (Que. C.A.) leave to appeal to S.C.C. refused 117 C.C.C. (3d) vi.
… The dishonesty lies in the wrongful use of something in which another person has an interest, in such a manner that this other’s interest is extinguished or put at risk. The use is wrongful in this sense if it constitutes conduct which reasonable decent persons would consider dishonest and unscrupulous. R. v. Zlatic [1993] 2 S.C.R. 29, 79 C.C.C. (3d) 466.

… Economic loss does not have to be proven by the Crown and fraud is complete when money is paid for corporate shares to which the accused falsely ascribed certain attributes: R. v. Knelson and Baran (1962), 133 C.C.C. 210, 38. C.R. 181 (B.C.C.A.)

Mens rea – The mens rea of fraud is established by proof of subjective knowledge of the prohibited act, and subjective knowledge of the act could have as a consequence deprivation, in the sense of causing another to lose their pecuniary interest in certain property or in placing that interest at risk. There is no requirement that the accused subjectively appreciate the dishonesty of his acts: R. v. Théroux, [1993] 2 S.C. R. 5, 79 C.C.C. (3d) 449; R. v Zlatic, supra.

Information for general warrant
487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
Limitation
(2) Nothing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person.
Search or seizure to be reasonable
(3) A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.
Video surveillance
(4) A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.
Other provisions to apply
(5) The definition “offence” in section 183 and sections 183.1, 184.2, 184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and 194 to 196 apply, with such modifications as the circumstances require, to a warrant referred to in subsection (4) as though references in those provisions to interceptions of private communications were read as references to observations by peace officers by means of television cameras or similar electronic devices of activities in circumstances in which persons had reasonable expectations of privacy.
Notice after covert entry
(5.1) A warrant issued under subsection (1) that authorizes a peace officer to enter and search a place covertly shall require, as part of the terms and conditions referred to in subsection (3), that notice of the entry and search be given within any time after the execution of the warrant that the judge considers reasonable in the circumstances.
Extension of period for giving notice
(5.2) Where the judge who issues a warrant under subsection (1) or any other judge having jurisdiction to issue such a warrant is, on the basis of an affidavit submitted in support of an application to vary the period within which the notice referred to in subsection (5.1) is to be given, is satisfied that the interests of justice warrant the granting of the application, the judge may grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
Provisions to apply
(6) Subsections 487(2) and (4) apply, with such modifications as the circumstances require, to a warrant issued under subsection (1).
Telewarrant provisions to apply
(7) Where a peace officer believes that it would be impracticable to appear personally before a judge to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.
Definitions
487.011 The following definitions apply in sections 487.012 to 487.017.

“data”
« données  »

“data” has the same meaning as in subsection 342.1(2).

“document”
« document »

“document” means any medium on which is recorded or marked anything that is capable of being read or understood by a person or a computer system or other device.
2004, c. 3, s. 7.
Production order
487.012 (1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a),
(a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or
(b) to prepare a document based on documents or data already in existence and produce it.
Production to peace officer
(2) The order shall require the documents or data to be produced within the time, at the place and in the form specified and given
(a) to a peace officer named in the order; or
(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.
Conditions for issuance of order
(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that
(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;
(b) the documents or data will afford evidence respecting the commission of the offence; and
(c) the person who is subject to the order has possession or control of the documents or data.
Terms and conditions
(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.
Power to revoke, renew or vary order
(5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.
Application
(6) Sections 489.1 and 490 apply, with any modifications that the circumstances require, in respect of documents or data produced under this section.
Probative force of copies
(7) Every copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this or any other Act of Parliament and has the same probative force as the original document would have if it had been proved in the ordinary way.
Return of copies
(8) Copies of documents produced under this section need not be returned.
2004, c. 3, s. 7.
Production order — financial or commercial information
487.013 (1) A justice or judge may order a financial institution, as defined in section 2 of the Bank Act, or a person or entity referred to in section 5 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, unless they are under investigation for an offence referred to in paragraph (4)(a), to produce in writing the account number of a person named in the order or the name of a person whose account number is specified in the order, the status and type of the account, and the date on which it was opened or closed.
Identification of person named in the order
(2) For the purpose of confirming the identity of the person named in the order or whose account number is specified in the order, the production order may require the financial institution, person or entity to produce that person’s date of birth, current address and any previous addresses.
Production to peace officer
(3) The order shall require the information to be produced within the time, at the place and in the form specified and given
(a) to a peace officer named in the order; or
(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.
Conditions for issuance of order
(4) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to suspect that
(a) an offence against this Act or any other Act of Parliament has been or will be committed;
(b) the information will assist in the investigation of the offence; and
(c) the institution, person or entity that is subject to the order has possession or control of the information.
Terms and conditions
(5) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.
Power to revoke, renew or vary order
(6) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.
2004, c. 3, s. 7.
Power of peace officer
487.014 (1) For greater certainty, no production order is necessary for a peace officer or public officer enforcing or administering this or any other Act of Parliament to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing.
Application of section 25
(2) A person who provides documents, data or information in the circumstances referred to in subsection (1) is deemed to be authorized to do so for the purposes of section 25.
2004, c. 3, s. 7.
Application for exemption
487.015 (1) A person named in an order made under section 487.012 and a financial institution, person or entity named in an order made under section 487.013 may, before the order expires, apply in writing to the judge who issued the order, or a judge of the same territorial division as the judge or justice who issued the order, for an exemption from the requirement to produce any document, data or information referred to in the order.
Notice
(2) A person, financial institution or entity may only make an application under subsection (1) if they give notice of their intention to do so to the peace officer or public officer named in the order, within 30 days after it is made.
Order suspended
(3) The execution of a production order is suspended in respect of any document, data or information referred to in the application for exemption until a final decision is made in respect of the application.
Exemption
(4) The judge may grant the exemption if satisfied that
(a) the document, data or information would disclose information that is privileged or otherwise protected from disclosure by law;
(b) it is unreasonable to require the applicant to produce the document, data or information; or
(c) the document, data or information is not in the possession or control of the applicant.
2004, c. 3, s. 7.
Self-incrimination
487.016 No person is excused from complying with an order made under section 487.012 or 487.013 on the ground that the document, data or information referred to in the order may tend to incriminate them or subject them to any proceeding or penalty, but no document prepared by an individual under paragraph 487.012(1)(b) may be used or received in evidence against that individual in any criminal proceedings subsequently instituted against them, other than a prosecution under section 132, 136 or 137.
2004, c. 3, s. 7.
Offence
487.017 A financial institution, person or entity who does not comply with a production order made under section 487.012 or 487.013 is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000 or imprisonment for a term not exceeding six months, or to both.
2004, c. 3, s. 7.
Assistance order
487.02 Where an authorization is given under section 184.2, 184.3, 186 or 188, a warrant is issued under this Act or an order is made under subsection 492.2(2), the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance, where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.
1993, c. 40, s. 15; 1997, c. 18, s. 43.
Execution in another province
487.03 (1) If a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province.
Endorsement
(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.
(2) [Repealed, 2007, c. 22, s. 7]
1993, c. 40, s. 15; 1995, c. 27, s. 1; 2000, c. 10, s. 13; 2007, c. 22, s. 7; 2008, c. 18, s. 12.


Information for general warrant
487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.
Limitation
(2) Nothing in subsection (1) shall be construed as to permit interference with the bodily integrity of any person.
Search or seizure to be reasonable
(3) A warrant issued under subsection (1) shall contain such terms and conditions as the judge considers advisable to ensure that any search or seizure authorized by the warrant is reasonable in the circumstances.
Video surveillance
(4) A warrant issued under subsection (1) that authorizes a peace officer to observe, by means of a television camera or other similar electronic device, any person who is engaged in activity in circumstances in which the person has a reasonable expectation of privacy shall contain such terms and conditions as the judge considers advisable to ensure that the privacy of the person or of any other person is respected as much as possible.
Other provisions to apply
(5) The definition “offence” in section 183 and sections 183.1, 184.2, 184.3 and 185 to 188.2, subsection 189(5), and sections 190, 193 and 194 to 196 apply, with such modifications as the circumstances require, to a warrant referred to in subsection (4) as though references in those provisions to interceptions of private communications were read as references to observations by peace officers by means of television cameras or similar electronic devices of activities in circumstances in which persons had reasonable expectations of privacy.
Notice after covert entry
(5.1) A warrant issued under subsection (1) that authorizes a peace officer to enter and search a place covertly shall require, as part of the terms and conditions referred to in subsection (3), that notice of the entry and search be given within any time after the execution of the warrant that the judge considers reasonable in the circumstances.
Extension of period for giving notice
(5.2) Where the judge who issues a warrant under subsection (1) or any other judge having jurisdiction to issue such a warrant is, on the basis of an affidavit submitted in support of an application to vary the period within which the notice referred to in subsection (5.1) is to be given, is satisfied that the interests of justice warrant the granting of the application, the judge may grant an extension, or a subsequent extension, of the period, but no extension may exceed three years.
Provisions to apply
(6) Subsections 487(2) and (4) apply, with such modifications as the circumstances require, to a warrant issued under subsection (1).
Telewarrant provisions to apply
(7) Where a peace officer believes that it would be impracticable to appear personally before a judge to make an application for a warrant under this section, a warrant may be issued under this section on an information submitted by telephone or other means of telecommunication and, for that purpose, section 487.1 applies, with such modifications as the circumstances require, to the warrant.
1993, c. 40, s. 15; 1997, c. 18, s. 42, c. 23, s. 13.
Definitions
487.011 The following definitions apply in sections 487.012 to 487.017.

“data”
« données  »

“data” has the same meaning as in subsection 342.1(2).

“document”
« document »

“document” means any medium on which is recorded or marked anything that is capable of being read or understood by a person or a computer system or other device.
2004, c. 3, s. 7.
Production order
487.012 (1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a),
(a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or
(b) to prepare a document based on documents or data already in existence and produce it.
Production to peace officer
(2) The order shall require the documents or data to be produced within the time, at the place and in the form specified and given
(a) to a peace officer named in the order; or
(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.
Conditions for issuance of order
(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that
(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;
(b) the documents or data will afford evidence respecting the commission of the offence; and
(c) the person who is subject to the order has possession or control of the documents or data.
Terms and conditions
(4) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.
Power to revoke, renew or vary order
(5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.
Application
(6) Sections 489.1 and 490 apply, with any modifications that the circumstances require, in respect of documents or data produced under this section.
Probative force of copies
(7) Every copy of a document produced under this section, on proof by affidavit that it is a true copy, is admissible in evidence in proceedings under this or any other Act of Parliament and has the same probative force as the original document would have if it had been proved in the ordinary way.
Return of copies
(8) Copies of documents produced under this section need not be returned.
2004, c. 3, s. 7.
Production order — financial or commercial information
487.013 (1) A justice or judge may order a financial institution, as defined in section 2 of the Bank Act, or a person or entity referred to in section 5 of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, unless they are under investigation for an offence referred to in paragraph (4)(a), to produce in writing the account number of a person named in the order or the name of a person whose account number is specified in the order, the status and type of the account, and the date on which it was opened or closed.
Identification of person named in the order
(2) For the purpose of confirming the identity of the person named in the order or whose account number is specified in the order, the production order may require the financial institution, person or entity to produce that person’s date of birth, current address and any previous addresses.
Production to peace officer
(3) The order shall require the information to be produced within the time, at the place and in the form specified and given
(a) to a peace officer named in the order; or
(b) to a public officer named in the order, who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament.
Conditions for issuance of order
(4) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to suspect that
(a) an offence against this Act or any other Act of Parliament has been or will be committed;
(b) the information will assist in the investigation of the offence; and
(c) the institution, person or entity that is subject to the order has possession or control of the information.
Terms and conditions
(5) The order may contain any terms and conditions that the justice or judge considers advisable in the circumstances, including terms and conditions to protect a privileged communication between a lawyer and their client or, in the province of Quebec, between a lawyer or a notary and their client.
Power to revoke, renew or vary order
(6) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.
2004, c. 3, s. 7.
Power of peace officer
487.014 (1) For greater certainty, no production order is necessary for a peace officer or public officer enforcing or administering this or any other Act of Parliament to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing.
Application of section 25
(2) A person who provides documents, data or information in the circumstances referred to in subsection (1) is deemed to be authorized to do so for the purposes of section 25.
2004, c. 3, s. 7.
Application for exemption
487.015 (1) A person named in an order made under section 487.012 and a financial institution, person or entity named in an order made under section 487.013 may, before the order expires, apply in writing to the judge who issued the order, or a judge of the same territorial division as the judge or justice who issued the order, for an exemption from the requirement to produce any document, data or information referred to in the order.
Notice
(2) A person, financial institution or entity may only make an application under subsection (1) if they give notice of their intention to do so to the peace officer or public officer named in the order, within 30 days after it is made.
Order suspended
(3) The execution of a production order is suspended in respect of any document, data or information referred to in the application for exemption until a final decision is made in respect of the application.
Exemption
(4) The judge may grant the exemption if satisfied that
(a) the document, data or information would disclose information that is privileged or otherwise protected from disclosure by law;
(b) it is unreasonable to require the applicant to produce the document, data or information; or
(c) the document, data or information is not in the possession or control of the applicant.
2004, c. 3, s. 7.
Self-incrimination
487.016 No person is excused from complying with an order made under section 487.012 or 487.013 on the ground that the document, data or information referred to in the order may tend to incriminate them or subject them to any proceeding or penalty, but no document prepared by an individual under paragraph 487.012(1)(b) may be used or received in evidence against that individual in any criminal proceedings subsequently instituted against them, other than a prosecution under section 132, 136 or 137.
2004, c. 3, s. 7.
Offence
487.017 A financial institution, person or entity who does not comply with a production order made under section 487.012 or 487.013 is guilty of an offence and liable on summary conviction to a fine not exceeding $250,000 or imprisonment for a term not exceeding six months, or to both.
2004, c. 3, s. 7.
Assistance order
487.02 Where an authorization is given under section 184.2, 184.3, 186 or 188, a warrant is issued under this Act or an order is made under subsection 492.2(2), the judge or justice who gives the authorization, issues the warrant or makes the order may order any person to provide assistance, where the person’s assistance may reasonably be considered to be required to give effect to the authorization, warrant or order.
1993, c. 40, s. 15; 1997, c. 18, s. 43.
Execution in another province
487.03 (1) If a warrant is issued under section 487.01, 487.05 or 492.1 or subsection 492.2(1) in one province, a judge or justice, as the case may be, in another province may, on application, endorse the warrant if it may reasonably be expected that it is to be executed in the other province and that its execution would require entry into or on the property of any person, or would require that an order be made under section 487.02 with respect to any person, in that province.
Endorsement
(1.1) The endorsement may be made on the original of the warrant or on a copy of the warrant that is transmitted by any means of telecommunication and, once endorsed, the warrant has the same force in the other province as though it had originally been issued there.
(2) [Repealed, 2007, c. 22, s. 7]
1993, c. 40, s. 15; 1995, c. 27, s. 1; 2000, c. 10, s. 13; 2007, c. 22, s. 7; 2008, c. 18, s. 12.
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Fri Feb 07, 2014 11:48 am

THIS MAY OR MAY NOT BE RELATED, but refers to Alberta Energy "regulator" claims to be granted immunity from civil prosecution.
I post it because I suspect securities regulators may have this same trick up their sleeve's, and perhaps this will help those who are abused by their negligence and breach's of the public trust.

"The Charter guarantees not only fundamental freedoms, but crucially, also guarantees the right of Canadians to seek a remedy when fundamental Charter rights and freedoms are violated. These constitutional rights cannot be taken away by a mere statutory enactment purporting to grant immunity to the Energy Resources Conservation Board," they write."

Screen Shot 2014-02-07 at 11.46.27 AM.png

http://thetyee.ca/News/2014/02/06/Fracking-Foe-Appeals/

Lawyers representing oil patch consultant Jessica Ernst have argued in an appeal briefing that Alberta's powerful energy regulator not only owes a duty of care to landowners to protect groundwater, but cannot violate the nation's Charter of Rights and Freedoms.

Nor is the regulator, which oversaw the development of the oilsands and is now mired in a fracking controversy in the city of Lethbridge, immune to civil action.

The 29-page briefing filed yesterday is the latest in Ernst's ongoing, $33-million lawsuit, which alleges that Encana drilled and fractured shallow coal bed methane wells directly in the local groundwater supply near her Rosebud, Alberta home between 2001 and 2004, polluting her water well with enough chemicals and methane to make it flammable.

The suit also alleges that two provincial regulators, the Alberta Energy Regulator (formerly the Energy Resources Conservation Board) and Alberta Environment, failed to act on documented and repeated violations of the law, and that the ERCB ceased all communication with the oil patch consultant on the grounds that she posed "criminal threats."

The suit also alleges that the energy regulator violated Ernst's Charter right to freedom of expression by "punishing her for publicly criticizing the ERCB and by arbitrarily preventing Ernst from speaking to key offices within the ERCB."

Last September, Alberta Chief Justice Neil Wittman struck down Ernst's Charter claim as well as her negligence claim against the regulator.



But Wittman allowed claims of negligence against the government of Alberta and Encana, a pioneer in fracking and mining of unconventional hydrocarbons, to proceed.

A clause in the regulator's legislation exempting its actions from public litigation does not "provide immunity from valid Charter claims," argue Ernst's Toronto-based lawyers Murray Klippenstein and Cory Wanless in the briefing.

"The Charter guarantees not only fundamental freedoms, but crucially, also guarantees the right of Canadians to seek a remedy when fundamental Charter rights and freedoms are violated. These constitutional rights cannot be taken away by a mere statutory enactment purporting to grant immunity to the Energy Resources Conservation Board," they write.

A battle foreshadowed

The appeal arguments foreshadow what could become a major and significant court battle this May between the energy regulator and Ernst's lawyers in the oil town of Calgary.

In many respects, the appeal hearing pits the rights of landowners who either want to ban hydraulic fracturing or improve groundwater protection against the interests of industry-funded regulators and a government dependent on hydrocarbon revenue.

(Alberta's Energy Regulator is funded 100 per cent by industry and run by a former Encana vice president and the founder of a major oil lobby association.)

Ernst's lawyers argue that Justice Wittman made errors in his September ruling, which concluded that the regulator could not be sued by landowners for negligence.

They say the regulator's statutory immunity clause "cannot provide immunity to a government from valid Charter claims. The Charter guarantees not only fundamental rights and freedoms, but crucially, also guarantees the right for Canadians to seek a remedy when these fundamental Charter rights and freedoms are violated. These constitutional rights cannot be taken away by statutory immunity in a provincial statute."

Justice Wittman also ruled that it was "plain and obvious" that the regulator owed no duty of care to Ernst because it wasn't in a relationship of sufficient proximity.

But Ernst's lawyers disagree, arguing that not only did the regulator interact with Ernst, but encouraged her to rely on its enforcement and investigation protocols.

The regulator also repeatedly assured the businesswoman that it had rules for protecting groundwater from contamination by industry drilling and fracking. Its mandate says it must protect "all freshwater aquifers from adverse impacts caused by oil and gas activities."

FRACK FIGHT IN LETHBRIDGE
In Lethbridge, citizens, city council and a school board are now battling plans by Goldenkey Oil Inc. to drill and frack within city limits on the west side.

Though the Alberta Energy Regulator has no ground rules to control urban drilling, Goldenkey holds mineral rights to 23 square-kilometres under the city, where more than 10,000 people live.

Hundreds of citizens concerned about the impacts of fracking, including water consumption, air pollution and property devaluation, have protested in the streets, running a full page advertisement in the Lethbridge Herald demanding a moratorium on urban drilling.

Meanwhile, Alberta's New Democrats released documents showing the number of water licenses granted by the provincial government to the fracking industry increased from 203 in the year 2012 to 1,516 last year, a 647 per cent increase.

In turn, the total amount of water allocated and used under those licenses increased by more than a thousand per cent.

Industry calculates that anywhere between 25 to 100 per cent of the water used in fracking is not recovered and consequently lost permanently to the water cycle.

"It's obvious that this PC government can't be trusted to protect Albertans or our water," said Brian Mason, Alberta's NDP leader and energy critic, in a statement.

"This is a government that is speeding out of control on fracking. Meantime, the province is actually considering a proposal to frack within a kilometre of homes, schools and businesses in West Lethbridge. A breakneck speed is the wrong speed when it endangers families and communities."

-- Andrew Nikiforuk

Ernst's lawyers add that "the Supreme Court has repeatedly held that once a government agency, such as the ERCB, has established an investigation or inspection mechanism at an operations level, it will owe a duty of care to carry out that inspection without negligence, failing which the authority can be held liable."

The briefing cites various cases where the courts have found that mine regulators owe a duty to miners to inspect the mines; that municipalities must enforce building codes; and that agricultural boards owe a duty to farmers to inspect for potato viruses.

Alberta's energy regulator "is responsible for ensuring that oil and gas operations do not contaminate potable groundwater," add the lawyers.

"The ERCB established an inspection and enforcement scheme in part to protect potable groundwater… And yet, when faced with complaints that Ernst's water well was contaminated with flammable levels of methane, the ERCB arbitrarily and without reason failed to implement its own inspection and enforcement scheme and failed to conduct any form of investigation into the causes of the severe contamination of Ernst's well water," reads the briefing.

Ernst 'reliant' on regulator, say lawyers

One of the final arguments will likely resonate with thousands of landowners embroiled in disputes with oil and gas companies about the space, scale and regulation of fracking.

"Ernst, like all rural landowners who live near oil and gas development, has little say in where oil and gas operations are located or how such activities are conducted. She has no ability to inspect operations, or to make sure that the operations are conducted in a safe manner, and only a limited ability to respond to protect herself or her property when something goes terribly wrong.

"In this case, Ernst was completely reliant on the ERCB to protect her and her property from adverse impacts caused by negligent oil and gas activities. Where citizens have no means to protect themselves from a real danger, they should be entitled to rely on government agencies tasked with inspection and enforcement."

Based on Wittman's ruling last September, Alberta Environment has filed an application to strike out the Ernst case against the regulator, now claiming, like the ERCB, no private duty of care and immunity. The government waited three years to make this argument and the hearing is set for April 16, 2014 in Drumheller Court of Queen's Bench.

Due to a lowering of royalties for unconventional hydrocarbons (now just five per cent), horizontal multi-stage fracking has increased dramatically throughout Alberta. According to the Canadian Association of Petroleum Producers, "out of the 3,107 new oil wells placed on production in 2012, horizontal wells, including those using multistage fracturing techniques, accounted for 2,379 or 77 per cent."

http://www.ernstversusencana.ca/the-lawsuit

Screen Shot 2014-02-07 at 11.47.54 AM.png
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Fri Jan 10, 2014 1:16 am

Screen Shot 2014-01-10 at 1.13.17 AM.png


Dozens of investors who lost their money when the doors closed at real estate investment firm First Leaside Group in early 2012 have gone after an unusual adversary: the regulator that investigated the Uxbridge, Ont.-based firm, determined investors were being harmed, and pursued the founder with allegations of fraud.

The Ontario Securities Commission heard the accusations brought by staff of the regulator against David Phillips and his former senior salesman John Wilson last year, and a panel of commissioners is formulating a decision on the merits of the case.

In the meantime, a statement of claim filed by more than 100 former investors accuses the regulator of allowing them to invest millions of dollars during the OSC investigation before taking action that essentially shut the firm down in a “precipitous and unwarranted” manner.

The group of investors is seeking $18-million, according to the statement of claim filed by boutique Toronto law firm Dewart Gleason LLP.

None of the allegations have been proven.


Both the investor lawsuit and the OSC’s case against Mr. Phillips and Mr. Wilson focus on two and a half months in late 2011, a period that immediately followed delivery of a viability report on First Leaside prepared by accounting firm Grant Thornton Ltd.

While staff of the OSC argue that the First Leaside executives committed fraud by selling securities during that period without telling investors about the viability report or its contents, the investor lawsuit says regulators sat on the report for more than two months, and then, even though they “had not conducted any further investigation,” threatened to seek an immediate cease trade order against First Leaside.

“The defendant investigators were aware that the threat of proceedings would instantly and completely ruin First Leaside’s reputation and goodwill, render its products unsalable, lead to its collapse and cause massive losses to its clients,” the statement of claim says.

The chair of the OSC and the lead lawyer in the regulator’s case against Mr. Phillips and Mr. Wilson were named in an earlier incarnation of claim, but their names have been removed, as have those of a few dozen investors who are no longer pursuing the OSC in court, according to the documents.

One investor reached by the Financial Post cited the cost of the lawsuit is the reason for dropping out, while another said he was uncomfortable because he felt David Phillips and John Wilson were involved, even though they are not named among those bringing the action against the OSC.

A letter to First Leaside investors in November of 2013 said a legal opinion was sought on bringing an action against the OSC “at the urging of certain former directors of First Leaside.”

The lawsuit claims that the OSC had already decided shut First Leaside down when the investigation into the firm was in its early stages.

According to the allegations in the statement of claim, Canadian regulators had preconceived notions about the firm after an unrelated run-in over industry policies in 2009. The document claims Mr. Phillips had crossed swords with the Investment Industry Regulatory Organization of Canada, a self-regulatory agency that is subject to oversight by the OSC, over the treatment of small firms compared to large bank-owned investment dealers.

Carolyn Shaw-Rimmington, a spokesperson for the OSC, said the regulator is unable “at this stage” to comment on any of the claims.

“We have an outstanding proceeding against the David Charles Phillips, the founder and directing mind of First Leaside Group, and John Russell Wilson, Senior Salesperson,” she said in an emailed statement.

“We are awaiting a decision by the Panel following a hearing on the merits where Staff alleged … that Phillips and Wilson engaged or participated in an act, practice or course of conduct relating to securities which he knew, or reasonably ought to have known, would perpetrate a fraud on investors.”

Options for investors to recover money from the nearly $300-million First Leaside debacle beyond a small amount disbursed following a court-monitored wind-down are running out. The Canadian Investor Protection Fund, set up to deal with investment firm insolvencies, has begun rejecting coverage to First Leaside investors.

http://business.financialpost.com/2014/ ... er-losses/
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Tue Dec 03, 2013 3:24 pm

Screen Shot 2013-12-03 at 3.23.41 PM.png
[16] The Defendant Roy Decaire had little knowledge and ability to be a Financial Planner/Advisor. The defendant Decaire had some knowledge of business matters. He and his wife ran a plant nursery and flower business until 1997. He had no analytical ability to be a financial planner/advisor. It is doubtful on the evidence if he could understand a financial statement. He had no ability to do an analysis of financial statements. In summary, he was a persuasive salesperson qualified to sell his principal’s mutual funds provided he was given instruction and supervision. Left on his own, he lacked an appreciation of his circumstance as a trusted financial advisor. He was credited with passing a correspondence course to obtain registration as a mutual fund salesperson. (exhibit 3, tab 8) He lacked the knowledge to know what he did not know – which was seemingly a good deal.

see the CasselsBrock Filing here:

https://drive.google.com/file/d/0BzE_LM ... sp=sharing
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Tue May 28, 2013 4:32 pm

Screen Shot 2013-05-28 at 5.30.36 PM.png
Hopi Tribe To Sue Wachovia For Fraud
Tristan Ahtone
Tuesday, May 28, 2013

Audio clip
Hopi Tribe To Sue Wachovia For Fraud

ALBUQUERQUE, N.M. — The Hopi Tribe of northeastern Arizona has filed a lawsuit against Wachovia bank, alleging that the tribe was taken advantage of by their financial advisers. The lawsuit seeks nearly $190 million in damages for investment fraud.

According to the Hopi, Wachovia employees David Bowling and James Roy gained control of the tribes investment accounts in 2007, causing enormous financial losses to the Hopi, while making profits for themselves and the bank.

“They were moving around and investing and playing with about $70 to $80 million of the tribes funds,” said Norberto Cisneros, attorney for the Hopi. “With that they basically just had carte blanche access to it and used it in a way that benefited them and not necessarily fulfilled their fiduciary obligations to the tribe.”

Cisneros says it appears one of the former Wachovia employees named in the suit, Bowling, served as a financial adviser to Zuni Pueblo. The Securities and Exchange Commission announced in 2011 that Wachovia engaged in similar misconduct with the Zuni shortly before taking the Hopi tribe on as clients.

http://www.fronterasdesk.org/news/2013/ ... via-fraud/
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Wed May 22, 2013 10:19 am

Screen Shot 2013-05-22 at 11.12.30 AM.png


Former Morgan Stanley Broker Blows Whistle, Again
Comment Now Follow Comments


Mark Mensack was excited to go to work at Morgan Stanley (MS) in August 2008. A bit over a year later, he would be walking out the door
not so excited … he quit. What happened?

Mensack initially went to his superiors at MS telling them that he had reservations about the additional compensation the firm was receiving from certain 401k vendors. Among his concerns were that companies who were coming to MS for investment advice were being directed to 401k products that paid to be in MS’s Alliance Partner program. Mensack took his concerns about the practice to his supervisor and then to the general counsel …. MS held the company line and responded to Mensack’s concerns stating “Reasonable minds could differ.” Mensack then left the firm and filed a whistleblower lawsuit in New Jersey Superior Court claiming that he was retaliated against for speaking out on compensation practices (pay to play) that he felt was wrong, illegal. MS responded to the claim by saying the case did not belong in NJ State court stating that Mensack’s issues should go to binding arbitration through Financial Industry Regulatory Authority, Inc. (FINRA), despite the fact that his employment contract explicitly precluded arbitration for statutory employment issues (whistleblowing being one of those). The New Jersey court agreed with MS and dismissed Mensack’s case.

By the time the case landed at FINRA, MS wanted $800,000 from a note (recruiting bonus) it had paid to Mensack upon accepting employment, along with attorney fees ($400,000) for taking the arbitration case to FINRA. MS claimed Mensack had not lived up to his commitment at the firm. Mensack’s position was that the role he was promised at the firm did not match reality and, as a result of speaking up about his disagreements with the firm’s practices, he was retaliated against thus necessitating him to leave. He wanted $5 million for the trouble. Upon conclusion of the arbitration, Mensack felt confident, but the decision was not what he had hoped, he lost and was ordered to pay $1.2 million to MS.

All Talk: The SEC's Broken Broker-Dealer, Investment Advisor Examination Program
Francine McKenna
Contributor

Broker Dealer President And Chief Compliance Officer Sued By Firm
Bill Singer
Contributor
Mensack was upset with the loss because he and his attorney felt that they had proven that they had clearly won the case on the grounds that he was brought to MS with false promises, had proven that MS witnesses had provided false testimony and that MS had fabricated key pieces of evidence against him during the proceedings. He then planned his appeal, knowing that the odds of overturning the decision were low. One of the first things he needed from FINRA was an audio recording, standard procedure, of the 21 hours of proceedings from the arbitration so he could review his options with an attorney. He eventually received the recordings from FINRA, except 8 hours of it was missing …. 8 hours, Mensack claims, which had to do with the very topics he thought he had proven during the arbitration.

Mensack’s case has been in the news before, but mostly through the musings of bloggers who write on the industry. Finance is a strange world and FINRA’s oversight of the industry has been called into question before. Some believe that FINRA, whose revenue comes from investment firms and individuals involved in finance on Wall Street, are influenced by the dominant investment institutions. One can rightfully assume that large banks, like MS and others, make up the majority of the revenues for the private corporation. It is akin to an automotive regulatory firm made up of automakers, with the Big 3 making up the majority of the dues paid. So how do you think a panel who is getting paid by the majority rules? Many have wondered this before.

Perhaps no one is more outspoken about FINRA than Bloomberg‘s William Cohan. Cohan routinely writes on FINRA’s decisions, including Mensack’s. Our own Forbes writer Seth Lipner wrote an excellent piece in 2009 to shed some light on who exactly makes up FINRA’s arbitrator panels that decides these cases. While some think that FINRA is unfairly rigged against investors and individual brokers, particularly those who lose in arbitration, the big firms seem to have a good batting average of winning. In one case in North Carolina last year, a former Wells Fargo broker had, like Mensack, received a sign on bonus that the bank wanted back after his resignation. FINRA agreed with Wells Fargo, surprise, and ruled the broker must pay the note amount plus legal fees of Wells Fargo. However, the broker took his case to U.S. District Court, an unusual move since arbitration is supposed to be binding, stating that he was railroaded. An attorney representing Wells Fargo told the judge about the numerous cases she had represented on behalf of banks at FINRA arbitration:

“I’ve never lost one and I’ve never not gotten attorney’s fees. I always win these cases.”

Judge Max Cogburn was taken aback by the comment and replied, “Now there’s a level playing field.” In the end, Judge Cogburn told the broker that he agreed with FINRA’s decision to have the broker repay the note but he waived the requirement to have to pay attorney’s fees. A partial victory, however, the decision and the case makes one wonder how someone gets a fair shake.

While FINRA has cases where it has helped investors, self regulators certainly have been criticized for how they have handled whistleblowers who claimed wrongdoing at their own firms. Take the case of Leyla Basagoitia, who was sued by her employer in 2003 for a bonus she received upon taking employment with the firm only to be fired two years later. The case was heard by FINRA predecessor, NASD. Basagoitia countered that she was retaliated against for not promoting products that she believed were illegal (sounds familiar). In fact, she went so far as to call her employer a Ponzi scheme. NASD ruled against Basagoitia and ordered her to pay the bonus back. Her firm? Stanford Financial, whose CEO Allen Stanford was arrested in 2009 for running, well, a Ponzi scheme. Stanford was convicted and is currently serving 110 years prison term.

Thirty days after learning of his arbitration loss, FINRA threatened to suspend Mensack’s license if he did not pay the $1.2 million, file a motion to vacate or file for bankruptcy within three weeks. Although Mensack felt a motion to vacate was warranted, without a complete copy of the record (missing recordings) he could not get an attorney to take his case. So not having $1.2 million handy to pay MS, he filed for bankruptcy in September 2011 in a move to protect his professional licenses. A New Jersey bankruptcy court, now in control of Mensack’s estate, had to first approve his attorney’s application to represent him in the new federal whistleblower case. In May 2012, MS objected to that application arguing that the court should block Mensack from moving forward with the latest lawsuit, a tactic which worked for a few months. It was not until October 2012 that the bankruptcy court over-ruled MS’s objection so that Mensack could proceed with the new litigation against MS, FINRA and other individuals. In a strange twist, should Mensack win some award from this lawsuit, it would go to pay the $1.2 million that FINRA awarded to MS during arbitration. Oh, how we love our justice system.

For Mensack, the Army veteran, whose final assignment in the military was teaching Ethics at the U.S. Military Academy in West Point, NY, he is banking on having his case heard, and fully recorded, this time around. MS on the other hand is feeling pretty confident. In a quote to the Chicago Tribune, an MS representative said of Mensack’s case that it was, “baseless” and further said in a statement that Mensack “had a full opportunity to present (the claims), represented by counsel, in an extensive hearing.”
http://www.forbes.com/sites/walterpavlo ... tle-again/
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Sun Apr 14, 2013 6:01 pm

Screen Shot 2013-04-14 at 6.58.22 PM.png
the case of Roncarelli v, Duplessis [1959] S.C.R.c 122 is a precedent setting example of "abuse of discretion" which might have some relation to the use or abuse of dicretionary powers of the securities commissions, when they allow exemptions to the securities act, or exempt market products to be sold to the public.

(for more on this see forum topic Securities law "exemptions". A license to steal? at this same forum)
http://www.investoradvocates.ca/viewtopic.php?f=1&t=143




It can be read at http://www.CANLII.org
[url]
http://www.canlii.org/eliisa/highlight. ... QAAAAAAAAE[/url]

discretion
abuse
suit
1959
Search keywords: layinformation
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Fri Apr 05, 2013 9:08 pm

Screen Shot 2013-04-05 at 10.05.48 PM.png


Charities reap windfall from settlement
Email

Dave Waddell, The Windsor Star
| Apr 05, 2013 | Last Updated: Apr 05, 2013 - 9:04 UTC
Five local charities will share about $250,000 as the result of the recent settlement of a class-action lawsuit over allegedly undisclosed fees two financial institutions charged clients on currency exchange trades.

The suit was filed by the Windsor law firm Sutts, Strosberg and concerned trades made by RBC Dominion Securities Inc. and RBC Action Direct Inc. between Dec. 30, 1997, and Nov. 1, 2003.

In line for the unexpected payout are the VON Windsor-Essex, Lawyers Feed the Hungry Windsor, the Essex Region Conservation Authority, the University of Windsor and Transition to Betterness.

The charities should get the cash by the end of September, according to the Feb. 13 agreement. Under terms of the settlement, money that is unclaimed, or claims that would be less than $25, will be donated to 10 charities listed in the agreement.

"They (local charities) should all be very happy," said Jay Strosberg, who has been involved with a series of suits in the class action against several financial institutions for the past decade.

"It won't be split evenly, but each of them will be getting tens of thousands. I'm really proud that we can distribute this money to Windsor charities."

Any class action member who is still with RBC will have their settlement funds directly deposited into their accounts.

Strosberg said it was fitting the area benefited. One of the suit's original two plaintiffs is a Windsor resident and the action was filed locally.

He added because the suit affected such a wide cross-section of citizens, an effort was made to pick charities which also ranged across all segments of society.

"Hats off to Jay Strosberg and his firm for thinking of us," said ERCA vice-chairman Percy Hatfield, when informed of the surprise windfall. "This is just fantastic news."

Hatfield said the timing for getting an unexpected infusion of money couldn't be better. ERCA has a few projects, such as deteriorating wooden walkways in conservation areas, which could use some attention.

"The wait was certainly worth it if for ERCA," Hatfield said. "It'll have a huge impact for us. We've been making cuts, scraping by the last few years."

The suit alleged Royal's clients were charged undisclosed fee on trades which the plaintiffs argued violated the account holder's agreement.

The overall settlement, in which Royal doesn't admit liability, was for about $7.2 million with an expected $1.2 million being shared by 10 charities.

Just over $5.1-million will be left after expenses to be redistributed to the class-action suit members.

http://www.windsorstar.com/Charities+re ... story.html
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Fri Apr 05, 2013 8:41 pm

Screen Shot 2013-04-05 at 9.39.41 PM.png



Half-billion dollar lawsuit launched by investors

Thursday, April 4, 2013
By Jason van Rassel, Calgary Herald



“Most of these people are in the nature of mom-and-pop retail investors,” lawyer Blair Yorke-Slader of Bennett Jones LLP in Calgary said in an interview.

Photographed by:
Gavin Young, Calgary Herald
Investors have launched a class-action lawsuit seeking to recover $500 million they put into a series of beleaguered real estate companies and related ventures promoted by a former Lethbridge pastor.

A statement of claim filed in Court of Queen’s Bench on Wednesday alleges hundreds of people invested their savings in a scheme that improperly siphoned millions of dollars to Ronald James Aitkens and seven other people named in the suit.

“Most of these people are in the nature of mom-and-pop retail investors,” lawyer Blair Yorke-Slader of Bennett Jones LLP in Calgary said in an interview.

The suit alleges Aitkens created a series of entities called the Harvest Group of Companies, which raised $500 million for 16 ventures in real estate development, resource development and financial investment since 2001.

However, the suit claims none of the projects were viable; it alleges they were bait used to solicit money from investors that wound up in the pockets of Aitken and other Harvest Group principals.

“Each (project) was merely a shell, sham or captive company formed and/or incorporated with the purpose of obscuring this common purpose and organization,” reads the statement of claim.

“Although ostensibly in the business of providing legitimate real estate investments and developments, the Harvest Group of Companies was really in the business of improperly enriching the personal defendants.”

Aitken’s lawyer couldn’t be reached for comment on the lawsuit’s claims, which haven’t been proven in court.

The statement of claim names 11 plaintiffs who have stepped forward on behalf of hundreds of investors allegedly victimized by the defendants.

The precise number of investors eligible to join the suit isn’t yet known.

The suit said Harvest raised its money with a network of agents who sold shares and bonds in its ventures, often through word-of-mouth and free seminars.

The agents themselves were misled into providing false information to investors by the defendants, the suit alleges.

Although the plaintiffs don’t claim to know the exact role each of the seven defendants allegedly played, the suit describes Aitkens as the “directing or controlling mind” of the companies involved.

“Aitkens personally moved the scheme forward, made misrepresentations as described above to the investors and received benefit from investors’ funds. Aitkens was the ‘face’ of the Harvest Group of Companies and of the investment scheme,” the statement of claim said.

The suit claims the defendants enriched themselves mainly through “nonsensical management fees” and by transferring investors’ money out of the projects and into separate, but related, companies they also controlled.

In the case of a proposed industrial park in the town of Millet, south of Edmonton, the defendants raised $35 million from investors.

The suit alleges $22.7 million was used to buy the land “at an inflated and improvident value” from another Harvest Group company.

The defendants “improperly paid themselves” $9.1 million in management fees and made $2 million in payments to “affiliated entities and unknown parties,” according to the statement of claim.

Yet despite raising $35 million in capital, “few if any development activities have taken place with respect to the Railside Industrial Park project,” the claim said.

Some of the other projects Harvest raised money for include an office complex in downtown Calgary, as well as residential developments in southwest Calgary, Airdrie and Rocky View County.

The suit alleges not only have the projects never been built, investors’ bonds were never redeemed either.

Investors also put money into a Harvest Group company, Foundation Mortgage, that claimed to offer financing to other real estate development companies.

The suit alleges the money was used instead to make improper loans to other Harvest Group ventures.

“By either fraudulent design or extraordinary incompetence, the defendants, or certain of them, thereby ensured that bondholders would never be repaid,” the claim says.

Initially, some Foundation bondholders did receive a return on their investment — but the suit claims they were paid with money improperly taken from elsewhere.

“In truth, (Foundation) paid investors with money from other investors, sometimes even from other projects, in a Ponzi-like fashion,” the suit says.

The suit must be certified by a judge before it can proceed.

In addition to $500 million restitution, the suit also seeks unspecified damages for breach of contract, misrepresentation, breach of trust, breach of fiduciary duty, unjust enrichment and other alleged torts.

The suit also seeks a freeze on the defendants’ assets, as well as the appointment of a receiver or supervisor to oversee the sale of the real estate held by the Harvest companies with any proceeds going to the plaintiffs.

The case is scheduled to be heard in Calgary.

jvanrassel@calgaryherald.com

Twitter: JasonvanRassel

http://www.calgaryherald.com/mobile/new ... story.html
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Sun Mar 17, 2013 6:13 pm

Screen Shot 2013-03-17 at 7.13.25 PM.png


General

The relationship between the private citizen, as prosecutor, and the Attorney General, who has exclusive authority to represent the public in court, has been described as follows:
The right of a private citizen to lay an Information (file charge), and the right and duty of the Attorney General to supervise criminal prosecutions are both fundamental parts of our criminal justice system.

The right of a citizen to institute a prosecution for a breach of the law has been called a valuable constitutional safeguard against inertia or partiality on the part of authority.

The Owen Report (Discretion to Prosecute Inquiry) states that the major importance of private prosecution “is that it places into public view the decision-making process. If charges are to be stayed or withdrawn, then this will be done in public.” Consistent with this policy, the Owen Report also recommended (Recommendation #2):
That the prosecution of an indictable offence should not be left in private hands. Where a private prosecution has been initiated, the Crown should intervene to take over the conduct of it. The Crown should then apply its standard charge approval criteria and process to determine whether the prosecution should be stayed or continued. This is necessary to ensure that a single standard of charge approval is applied and that prosecutorial power is exercised only in the public interest.

http://www.ag.gov.bc.ca/prosecution-ser ... ov2005.pdf

http://www.ag.gov.bc.ca/prosecution-ser ... /index.htm

Search keywords: layinformation
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

Re: Civil or Criminal Actions against companies or regulator

Postby admin » Tue Mar 05, 2013 2:16 pm

Court of Appeal reiterates the importance for investors to conduct due diligence
Heenan Blaikie LLP
Canada
February 22 2013

The Court of Appeal of Quebec has rendered an important decision on the liability of securities dealers and investment advisors. In Mazzarolo v. BMO Nesbitt Burns ltée, 2013 QCCA 245, the Court of Appeal, in accordance with its precedents, reaffirmed the respective duties of investors, investment advisors and dealers, while reiterating the importance of differentiating the mandate of an investment advisor from that of a portfolio manager.
Facts
Mr. Mazzarolo, a wealthy businessman, sued, on his own behalf and on behalf of his companies, his investment advisors Messrs. Lazarus and Albert, as well as the dealer BMO Nesbitt Burns, for over 4 million dollars. The case was dismissed at trial by the Honourable Joël A. Silcoff, J.S.C. Mr. Mazzarolo brought the matter before the Court of Appeal.
Mr. Mazzarolo claimed to have limited to a maximum of $250,000 the capital gains arising from the redemption of certain mutual funds in two of his accounts. Mr. Mazzarolo was also dissatisfied with the performance of one of his accounts, arguing that his investment advisors acted in fact as portfolio managers and that they had ventured beyond the investment proposal which Mr. Mazzarolo claimed to have accepted.
Issues
The Court of Appeal had to determine whether the trial judge had erred in his assessment of the evidence as to the existence of the $250,000 ceiling for capital gains that had allegedly been set for Mr. Mazzorolo’s two accounts, as well as the evidence on the resulting damages. The Court also had to consider whether the trial judge erred in characterizing the mandate accepted by Mr. Mazzarolo’s investment advisors.
Court of Appeal Decision
The Court of Appeal analyzed evidence presented at trial, having regard to the principle that it must exercise restraint with respect to findings of fact made by the trial judge. Further to its analysis, the Court of Appeal corroborated the findings of the trial judge.
The evidence revealed that Mr. Mazzarolo was a successful businessman, experienced in various types of investments and able to withstand a high level of risk. The Court of Appeal thus found no error in the decision of the trial judge to dismiss the allegations as to the existence of a ceiling of $250,000 for capital gains. The Court of Appeal did not overturn the trial judge’s finding that it was the client’s responsibility to calculate its capital gains.
As for the existence of a discretionary de factoportfolio management mandate, the Court of Appeal noted that this argument is based on a misconception of the mandate of investment advisors. A discretionary de facto portfolio management mandate is not created solely because multiple transactions were solicited or recommended by investment advisors, particularly if, as in this case, the client is not vulnerable. This is not a distinctive feature of discretionary portfolio management.
The Court of Appeal also considered the argument of the ratification of the disputed transactions. Mr. Mazzarolo had never disputed the transactions that were alleged to have been made without his consent. Furthermore, it was found that his assistant prepared monthly reports for him in which the disputed transactions were detailed.
The authorities cited by the Court of Appeal emphasize that the securities regulatory framework requires sending confirmations and account statements to clients. When a client fails to question or challenge the transactions within a reasonable time following the receipt of such confirmations or account statements, one may conclude in the ratification of the effected transactions.
The Court of Appeal noted that an investor cannot remain passive in such a context, much less when he holds a non-discretionary account with advice rather than a discretionary account. A judge is then entitled to make a rebuttable presumption of ratification by the investor. Recalling the principles established in Immeubles Jacques Robitaille inc. v. Financière Banque Nationale, 2011 QCCA 1952, the Court reiterated that investors are bound to a certain duty of due diligence in the management of their portfolio.
The Court of Appeal specified, however, that the analysis of whether a transaction had been ratified may be different when the disputed transaction does not match the client’s investment objectives, which was not the case of Mr. Mazzarolo.
Impact of the Decision
It should be noted that there are particular facts in this case. The Court of Appeal should not, in principle, intervene in the findings of fact made by the trial judge. The Court’s ability to intervene is limited where the majority of matters under appeal concern the assessment of the evidence presented at trial.
Nevertheless, it is interesting to note that the Court of Appeal upheld the findings of its recent decisions, noting that investors, even neophytes, have obligations in the relationship with their advisor. The Court’s analysis with respect to the ratification of the transactions is particularly interesting insofar as it condemns passivity and disinterest on the part of the investor.
In addition, after several years of ambiguity following the decision of the Supreme Court of Canada in Laflamme v. Prudential-Bache Commodities Canada Ltd., [2000] 1 S.C.R. 638, we have witnessed over the last few years a better qualification of the respective obligations of investment advisors in relation to those of portfolio managers. Finally, we note an increase in the use by courts of IIROC rules to evaluate the conduct of advisors and dealers, making it possible to adapt the civil law rules on mandate to the particularities of the securities context.
admin
Site Admin
 
Posts: 2846
Joined: Fri May 06, 2005 9:05 am
Location: Canada

PreviousNext

Return to Click here to view forums

Who is online

Users browsing this forum: No registered users and 3 guests

cron