Judgements
SIPA has on file copies of the judgments listed below.
Copies of these judgments are available to SIPA members
with a complaint.
Simply submit to SIPA copies of the following documents:
- Brief outline of your complaint (one page)
- Know Your Client Form
- Initial or early statement
- Last or recent statement
- Outline of action taken to resolve dispute
Your name will not be disclosed unless your permission is first obtained,
and the information will remain in SIPA's confidential
files.
In return SIPA will provide a floppy disk
containing the documents requested.
Members can also search for judgements by accessing
the Canadian Legal Information Institute.
This website provides access to decisions of the various courts. Members
with a dispute should spend some time on this website.
Anger v. Berkshire Group [2001] - ( 4 pages)
Court of Appeal for Ontario
negligence -- fraud -- breach of contract -- breach of fiduciary duty
-- compliance officers owed an independent duty of care -- failure to
supervise -- failure to deliver a prospectus or offering memorandum within
the time period prescribed -- solicited sales in the Sovereign
Limited Partnership, and the Lynwood Place Limited Partnership contrary
to the registration requirements -- failure to disclose commission which
disqualified the Limited Partnerships from the prospectus exemption available
-- guaranteed rates of return on investments contrary to the Securities
Act -- made representations about the resale, refund or repurchase of
the partnerships units contrary to the Securities Act -- failed to ensure
that the Limited Partners had the requisite net worth and investment
experience to purchase the Limited Partnerships -- Lee-Chin failed to
ensure that DeLellis, Pacifico and Dakos disclosed his conflict of interest
as owner and vendor of the Lynwood Place Limited Partnership --
Excerpt
"2] Each of the appellants made tax-driven investments in limited
partnership condominium projects, based on advice from Berkshire given
by the defendant salespeople, DeLellis, Pacifico and Dakos. The action
against these defendants is based on negligence, fraud, breach of contract
and breach of fiduciary duty and is proceeding.
[3] In paragraph 78 of the Statement of Claim, the appellants also plead
that the respondents, Lee-Chin, Astaphan and Dakos, were compliance officers
for Berkshire and in that capacity, Lee-Chin and Dakos were responsible
for ensuring that Berkshire’s sales force complied with applicable
securities law, and Astaphan and Dakos were responsible for ensuring that
Berkshire’s products complied with applicable securities law. In
paragraph 79 of the Statement of Claim, the appellants plead that as compliance
officers, Lee-Chin, Astaphan and Dakos owed an independent duty of care
to them and that they negligently breached that duty ..."
Judgment
"[15] To attempt to apply policy considerations in a vacuum, and
without the benefit of a record, would be contrary to the principles upon
which our case law has long been understood to develop. That is why Hunt
v. Carey Canada Inc. provides that a court should strike a claim only
if it is clear that in law the case cannot succeed, based on decided principles
directly applicable to the case as set out in the pleadings. The court
does not develop the law, including policy considerations, in order to
strike a claim. That should only be done after a trial.
Conclusion
[16] This is not a case where the law is clear in favour of the defendants.
Whether the respondents owed a duty of care to the appellants will depend
on an application of the Anns/Kamloops test to the facts of this
case based on the evidence. The order to strike is set aside.
[17] The respondents also complain about lack of particularity in paras.
79-82 of the Statement of Claim. If the parties wish to pursue that part
of the motion, they may do so before a judge or master as appropriate.
[18] Costs of the motion and of the appeal to the appellants."
Hodgkinson v. Simms [1994] - (61 pages)
Supreme Court of Canada
Fiduciary duty -- Non-disclosure -- Damages -- Financial adviser --Client
insisting that adviser not be involved in promoting -- Adviser not disclosing
involvement in projects -- Client investing in projects suggested by
adviser --Ultimate decision as to whether or not to invest that of client
-- Substantial losses incurred during period of economic downturn --
Whether or not fiduciary duty on part of adviser -- If so, calculation
of damages.
Contracts -- Contract for independent services -- Breach by failure
to disclose -- Calculation of damages.
Excerpt
"Appellant brought an action in the Supreme Court of British Columbia
for breach of fiduciary duty, breach of contract and negligence to recover
all his losses on the four investments recommended by the respondent accountant.
The claim in negligence was dismissed at trial and was not pursued before
the Court of Appeal. The trial judge, however, allowed his action for breach
of fiduciary duty and breach of contract and awarded him damages. The British
Columbia Court of Appeal upheld the trial judge on the breach of contract
issue, but reversed on the issue of fiduciary duties. It also varied the
damages award, setting damages at an amount equal to the fees received
by respondent accountant from the developers on account of the four projects,
prorated as between the various investors in those projects. This, therefore,
was a case of material non-disclosure in which the appellant alleged breach
of fiduciary duty and breach of contract against the respondent in the
performance of a contract for investment advice and other tax-related financial
services."
Judgment
"We would dismiss this appeal and maintain the damage award ordered
by the British Columbia Court of Appeal. Pursuant to that order, the appellant
is entitled to his prorated share of the fees paid by the developers to
the respondent on the four projects."
Laflamme v. Prudential-Bache Commodities Canada Ltd., [2000]
- (33 pages)
Supreme Court of Canada
Civil responsibility -- Securities dealers -- Portfolio
manager -- Failure to comply with mandate -- Mismanagement of portfolio
of securities -- Point in time when manager’s liability ends --
Obligation of client to mitigate damages -- Quantum of damages.
Mandate -- Portfolio manager -- Scope of mandate and
point in time when it ends -- Obligation of client to mitigate damages.
Excerpt
"L sold his business and, for tax reasons, transferred the proceeds
to the appellant company, 98 percent of the shares of which he owned. He
entrusted the management of the money to the respondent R, a securities
broker. L and his family had no experience in investments. In April 1988,
R left his brokerage firm and joined the respondent Prudential-Bache and
arranged the transfer of the appellant’s portfolio to his new employer.
In June, L learned from his auditor that R was managing the portfolio on
margin without his knowledge and that a number of the investments were
speculative, when the primary purpose of the investments was supposed to
have been to provide L, who was nearly 60 years old, with a retirement
fund."
Judgment
"I would allow the appeal, set aside the judgment of the Court of
Appeal in this case, restore the judgment of the Superior Court in part,
find the respondents jointly and severally liable to pay to the appellant
the amount of $924,374, plus interest at the legal rate from the date of
service and the additional indemnity, with costs in all courts, including
expert witness fees."
Vorvis v. Insurance Corporation of British Columbia [1989]
Supreme Court of Canada
Contracts -- Damages -- Aggravated damages and punitive damages -- Whether
or not available in action for wrongful dismissal.
Excerpt
"Appellant was a solicitor in the respondent's legal department who
was conscientious to a fault and prone "to produce a Cadillac when
a Ford would do". Appellant's supervisor became increasingly dissatisfied
with the pace of appellant's work and instituted weekly "productivity
meetings" which degenerated into a form of inquisition. As the pressure
increased, appellant suffered distress and obtained medical attention.
He was dismissed without any precipitating event. Respondent offered pay
and benefits for an eight-month period if appellant were to release it
from any claim arising out of his employment and its peremptory termination.
Appellant, however, was not prepared to admit that he was incompetent and
that his employer had just cause for his dismissal."
Judgment
"In the case on appeal, the defendant engaged in a continuous course
of reprehensible conduct for several months prior to the date of termination
and persisted in its groundless allegations of incompetence against the
appellant up to and throughout the trial. The conduct of the defendant,
as found by the trial judge, may be summarized as follows:
(1) Inquisitorial practices over a substantial
period of time;
(2) Duress - termination with reasonable
notice only if the appellant admitted that he was incompetent;
(3) Colourable attempt to find the appellant
other employment with the company in a thinly disguised effort to damage
the reputation of the appellant;
(4) Persistence in groundless allegations
of incompetence up to and including the trial.
Anderson J.A. would have allowed the appeal on the punitive damages issue
and awarded the appellant punitive damages in the sum of $5,000. The quantum
that Anderson J.A. would have awarded is, I believe, a reasonable one and
in keeping with the Canadian experience in the award of relatively modest
punitive damages. When the purpose of the award is to reflect the court's
awareness and condemnation of flagrant wrongdoing and indifference to the
legal rights of other people, the award does not need to be excessive.
I would allow the appeal on the punitive damages issue in this Court in
order to give effect to Anderson J.A.'s judgment. I would also award the
appellant his costs both here and in the courts below.
Appeal dismissed with costs ..."
Whiten v. Pilot Insurance Co. [2002] - (83 pages)
Supreme Court of Canada
Damages – Punitive damages – Insurer’s
duty of good faith and fair dealing – Insurer contesting fire insurance
claim in bad faith __ Whether policy holder entitled to award of punitive
damages __ Whether jury award of $1 million in punitive damages should
be restored.
Excerpt
"The appellant and her husband discovered a fire in the addition
to their house just after midnight in January 1994. They and their daughter
fled the house wearing only their night clothes. It was minus 18 degrees
Celsius. The husband gave his slippers to his daughter to go for help and
suffered serious frostbite to his feet. The fire totally destroyed the
home and its contents, including three cats. The appellant was able to
rent a small winterized cottage nearby for $650 per month. The respondent
insurer made a single $5,000 payment for living expenses and covered the
rent for a couple of months or so, then cut off the rent without telling
the family, and thereafter pursued a confrontational policy."
"An award of punitive damages in a contract case, though rare, is
obtainable. It requires an "actionable wrong" in addition to
the breach sued upon. Here, in addition to the contractual obligation to
pay the claim, the respondent was under a distinct and separate obligation
to deal with its policyholders in good faith. A breach of the contractual
duty of good faith was thus independent of and in addition to the breach
of contractual duty to pay the loss. The plaintiff specifically asked for
punitive damages in her statement of claim and if the respondent was in
any doubt about the facts giving rise to the claim, it ought to have applied
for particulars."
Judgment
"I would dismiss the appeal without costs and the cross-appeal with
costs."
Zraik v. Levesque Securities [1999] - (26 pages)
Ontario Superior Court of Justice - Archibald J.
Excerpt
"The plaintiffs George Zraik and Grace Costa, father and daughter,
have sued their broker Alfred Drose and the brokerage Levesque Securities
for the recovery of losses which they suffered while trading on the commodity
futures market. The action is based in negligence. The plaintiffs assert
that the broker and firm breached their duty of care and breached their
fiduciary duty to them as clients. The plaintiffs assert that the broker
and brokerage were negligent in allowing the plaintiffs to trade while
recklessly disregarding the rules, regulations and industry standards concerning,
in essence, position and margin limits. The plaintiff George Zraik suffered
market losses which exceeded $400,000.00 Canadian. The plaintiff Grace
Costa also suffered market losses but to a much lesser extent."
Judgment
"153 Regardless of whether it was Mr. Zraik's desire
to re-open the account, Levesque should never have allowed the account
to be re-opened. Thus, Ms. Costa should be made fully whole in all of the
circumstances. On that basis, to assist in the interpretation of the tax
consequences for Ms. Costa which flow from this judgment, the following
language is intentionally used. Since there was no enforceable obligation
that required Ms. Costa to pay to Levesque the amounts which Levesque alleged
were incurred by her or on his behalf, Ms. Costa has no legal liability
to Levesque. It follows, therefore, that Ms. Costa incurred no losses from
the trading transactions. The counterclaim against Ms. Costa is dismissed
for the same reasons.
154 The plaintiffs are therefore entitled to recover from
the defendants as follows: 1) In Mr. Zraik's case, $238,985.47 plus pre-judgment
interest; 2) In Ms. Costa's case, $26,379.00 inclusive of pre-judgment
interest. The plaintiffs are also entitled to their costs. If the parties
wish, an appointment can be made to appear before me to make submissions
concerning the issue of costs. In closing, this court would like to express
its gratitude for the able assistance from all four counsel."
