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Highlights
SECURITIES LITIGATION
Securities Litigation Bulletin – The Danier Leather
Case
Tracy A. Pratt, Jeffrey S. Leon
Tracy Pratt and Jeffrey Leon discuss the first class
action under section 130 of the Ontario Securities Act and how a
corporation, its president/CEO and CFO were recently held liable for
misrepresentations contained in an IPO final prospectus. The trial judge
found that the prospectus contained a misrepresentation in that
non-disclosure of intra-quarter results rendered the company's forecast
of financial results for that quarter misleading as of the IPO's closing
date. In doing so, the Court engaged in a comprehensive analysis of how
forward-looking information can be materially misleading for the
purposes of section 130 of the Act. The authors note that the liability
of the president/CEO and CFO arose from their failure to conduct
reasonable investigation so as to provide reasonable grounds for a
belief that there had been no misrepresentation.
REGULATORY PROCEEDINGS
Destroyed or Missing Evidence: Establishing a Charter
Violation and Selecting an Appropriate Remedy
J. Bruce McMeekin, Michelle Fernando
What is the consequence of evidence being destroyed
or lost by a regulatory investigator? Bruce McMeekin and Michelle
Fernando discuss how in the context of quasi-criminal proceedings, this
constitutes a Charter violation because it can compromise a defendant's
ability to make full answer and defence. This will require analysis of
the circumstances surrounding the loss or destruction of the evidence,
and whether the Crown took all reasonable steps to preserve the evidence
for disclosure. However, as the authors point out, establishing the
violation does not end the analysis. Selecting an appropriate remedy
from among those available (adjournment, mistrial, stay of proceedings
and costs) requires consideration of various factors.
TAX PRINCIPLES
Ford Canada v. OMERS: the Oppression Remedy and Tax
Principles Come Together
Robyn M. Ryan Bell
At first blush, transfer pricing principles on the
one hand and oppression and share valuation cases on the other may
appear to have little to do with one another. The recent decision of
Cumming J. in Ford Motor Company of Canada, Limited v. Ontario
Municipal Employees Retirement Board illustrates, however, that tax
principles may be applied in oppression and share valuation cases. Robyn
Bell reviews this decision and the transfer pricing regime that existed
between Ford Canada and Ford U.S. Provided that a sufficient evidentiary
foundation exists, there is nothing to prevent counsel from relying upon
tax or other "non-corporate" legal principles as a basis for
the reasonable expectations of minority shareholders.
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Board
Brian J. Gover
Editor-in-Chief
Stockwoods LLP
Edward J. Babin
Torys LLP
Michael E. Barrack
McCarthy Tétrault LLP
Robyn M. Ryan Bell
Bennett Jones LLP
William Brock
Davies Ward Phillips & Vineberg LLP
J. Thomas Curry
Lenczner Slaght Royce Smith Griffin
Ivan J. Derer
Gowling Lafleur Henderson LLP
Frank R. Foran, QC
Borden Ladner Gervais LLP
Donald H. Jack
McDonald & Hayden LLP
André Legrand
Ogilvy Renault
Jeffrey S. Leon
Fasken Martineau DuMoulin LLP
J. Bruce McMeekin
Miller Thomson LLP |
