Securities Litigation

Our Group

Miller Thomson’s securities litigators are veteran practitioners who combine proven technical skills with a critical understanding of the complex interplay between civil litigation, regulatory procedures and criminal investigations that unfolds in a landscape which is often cross-border and international.  We work closely with our capital markets and securities lawyers to develop litigation strategies that are reflective of the realities of today’s capital markets and tailored to your business needs.

Our Clients

We represent a wide range of market participants including public issuers, their directors, officers and special committees, investment dealers, advisors and investment fund, mutual fund and portfolio managers. We also represent financial institutions and pension funds.

Our Expertise

Our team of securities litigators can help you prevent regulatory and criminal securities investigations from diverting critical resources and energy away from your company's business and reduce the stress placed on your enterprise. Our first goal is to help you avoid becoming the subject of an investigation. But even the most compliant companies can find themselves involved in an investigation, if only to provide documents and information. It is essential to respond to the regulator and/or law enforcement officials in a way that is sensitive to the needs of your business while maintaining a positive relationship to ensure the best possible outcome.

We have the experience and capability to represent market participants across Canada in investigations, defence and prosecution of breaches of provincial securities acts and conduct contrary to the public interest. Several of our lawyers are intimately familiar with the inner workings of securities regulators having worked for, or been seconded to, provincial securities regulators. Some are former Crown Attorneys.

Our litigators regularly appear before the Ontario Securities Commission, the British Columbia Securities Commission, the Alberta Securities Commission, and the Autorité des marchés financiers and its Bureau. In addition, we have experience representing clients before self-regulatory organizations such as the Investment Industry Regulatory Organization of Canada (IIROC) and the Mutual Fund Dealers Association (MFDA).

We have extensive experience in domestic, cross-border and international investigations including investigations under the Foreign Corrupt Practices Act and the Mutual Legal Assistance in Criminal Matters Act. We also have the skills and capability to conduct special committee investigations.

Our securities litigators are a valuable source of strategic advice and counselling on the steps necessary to anticipate, address and respond to litigation risks before they arise.  We keep our clients informed of the judicial and legislative developments affecting issuers, investment dealers, brokers, and their officers, directors or employees.

Our Securities Litigation Group is experienced in civil litigation for both plaintiffs and defendants.  This dual perspective provides our securities lawyers with the insight necessary to successfully recover investments that have been lost due to the negligence, fraud or misrepresentation of market participants, or alternatively to marshal a vigorous defence on behalf of market participants whose conduct has been alleged to be the cause of such losses.

There are a several different legal avenues through which civil liability for investment losses may be imposed by the courts.  Our securities litigators are well versed in the remedies and procedures available under the corporate and securities legislation in all of the securities jurisdictions in Canada.  We have acted as counsel before the courts involving claims of statutory civil liability as well as under the common civil law principles governing misrepresentations and negligence in the context of the investment industry.

Our Services

Regulatory and Criminal

Investigations into breaches of provincial securities legislation and securities offences under the Criminal Code, including cease trade orders, freeze directions and orders, orders authorizing disclosure of compelled evidence & reciprocal orders

Defence and prosecution of insider trading, trading without registration, illegal distributions, prohibited statements, misrepresentation, fraud and market manipulation.

Hearing and review of directors' decisions regarding registration

Hearing and review of decisions of self-regulatory organizations

Hearings before the provincial regulators relating to take-over bids and mergers and acquisition transactions

Civil

Representation of reporting issuers, their officers and directors, investment dealers, brokers, and employees facing potential liability for failure to meet their professional duties

Defence of negligence actions against investment dealers and brokers based on their management of investor accounts including unauthorized trading, unsuitable investments, misrepresentation and other service issues.

Common law and statutory civil liability for misleading statements including misrepresentations and material non-disclosure.

Shareholder litigation including oppression and breach of contract claims.

Class actions relating to prospectus and continuous disclosure obligations, negligence, fraud or statutory liabilities.

Recourses relating to internal fraud, use of confidential information and solicitation of clients.

Disciplinary

Representation of investment dealers in disciplinary proceedings based on allegations of misconduct or breach of IIROC Rules.

Representation of mutual fund dealers in disciplinary proceedings based on allegations of misconduct or breach of MFDA Rules.

Representation of financial advisors in disciplinary proceedings before provincial regulatory boards.

Our Experience

The following list highlights our group’s expertise:

• acted for a director in the lengthy prosecution of YBM Magnex International before the Ontario Securities Commission;
• represented a financial institution and its directors in the longest and most complex hearing to date before the British Columbia Securities Commission;
• represented the British Columbia Financial Institutions Commission in proceedings related to the influence and control of a credit union by parties accused of links to terrorist activities; 
• represented Canadian clients in dealings with U.S. state and federal securities regulatory authorities, including negotiating cross-border licensing arrangements and defending parties being investigated, and
• represented financial institutions and a Canadian territorial government with respect to the collapse of the Canadian third-party asset backed commercial paper market, including providing advice on litigation proceedings throughout Canada and in the United States
• defended a portfolio manager against a class-action certification motion for $137M in the Norbourg mutual funds matter. Certification was denied.
• defended two investment advisors against civil, penal and disciplinary proceedings in the Mont Real notes matter. All proceedings were settled.
• represented a pension fund seeking the liquidation of a mutual fund. Liquidation was ordered.
• defended a securities firm against a competitor alleging that products confidential information had been stolen. Action was abandoned.
• represented a portfolio manager whose Chief Analyst was sharing strategic information with an investment bank. Matter was settled.
• represented a senior executive of a large Canadian subsidiary of a U.S public company and of an insider of a public mining company in connection with allegations of insider trading.
• represented a complainant in connection with take-over bid compliance.
• counsel to an intervener opposing the extension of a cease trade order for a VSE and ME listed company under the Securities Act (Ontario) and the Securities Act (Alberta).
• counsel for a bank subsidiary dealer in connection with the Bre-X scandal.
• counsel to limited partners in connection with claims in a number of failed syndications.
• registration reinstatement for a salesperson of a now defunct broker.