The Litigator

THE LITIGATOR

Commentary on Law Affecting Business

The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
365 Bay Street, Suite 200  ·  Toronto, Canada
416 360 2800  ·  info@agmlawyers.com  ·  www.thelitigator.ca

“Know Your Client Rule” Takes on New Importance

THE RULE

When asked to speak on the impact of technological changes taking place in the retail stock market on the "Know Your Client Rule", I was somewhat at a loss in that if you had asked me several months ago what "Surfing the Net" meant I would have thought it was a surf in the Hawaiian Islands! I am very familiar with the Know Your Client Rule having acted as for one of 's largest brokerage firms for a number of years. I have endured the brunt of Judicial tongue lashing for failure of to adhere to that Rule. If I have heard it once, I have heard it judicially stated a dozen times, that and dealers are "Not Just Order Takers" . In a recent article by one of my colleagues at the Bar, the relationship between the broker (I shall use throughout this article the lay person's terminology of broker rather than the of investment advisor or registered representative) and client was described as follows:

"Nevertheless, one of the fundamental relationships in the stock market – that between stockbroker and client has not changed significantly in the last 65 years. It is a relationship essentially verbal in nature, built fundamentally on trust, dependent in large measure on tradition, mystique, salesmanship, puffery and occasionally greed and it is relationship that sometimes ends up in the Courts, often in cases involving perverse facts and unusual litigants". [1]

Judicially, the relationship of a broker to one's client has been described as:

"The relationship was one in which in return for a fee, the Defendants were to give the Plaintiffs advice and to execute the client's orders". [2]

For a broker to fulfill one's obligation to provide advice the broker must know the client's circumstances. It is for that reason that the "Know Your Client Rule" exists. The Rule can be found within the regulations, TSE By-laws and is stated within the Investment Dealer Association ("") Regulations as follows:

" 1300.1 – Each Member shall use due diligence:

 (a) to learn the essential facts relative to every customer and to every order or account accepted;

 (b) to ensure that the acceptance of any order for any account is within the bounds of good business practice; and

 (c) to ensure that recommendations made for any account are appropriate for the client and in keeping with his investment objectives." [3]

Under IDA Regulation 1300.2 Member firms are required to designate a director, partner or officer responsible for the opening of new accounts and the supervision of account activity. It is the failure to fulfill these duties that causes defence counsel in stock brokerage cases the greatest difficulty in fending off Plaintiffs' claims for substantial damages. Rest assured that when the client is making money the advice given by the broker is always suitable and in accord with the client's stated investment objectives. It is only when losses are sustained and the client is referred to the counsel who usually handle stock brokerage cases for Plaintiffs (the names of whom I am sure you are well aware) that we hear allegations such as "given the Plaintiff's circumstances the transaction was not suitable or in accord with the Plaintiff's stated investment objectives" or "the Defendant investment dealer failed miserably to properly supervise the Plaintiff's account in breach of its duty of care."

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[1] Peter C. Wardle, Playing the Market: An Exploration of Stockbrokers' Liability for Clients' Losses, (1996) 27 Canadian Business Law Journal at page 324

[2]Maghun v. Richardson Securities of Canada Ltd. (1986), 58 O.R. (2d) 1 (Ont. C.A.) per Brooke, J.A. at page 14

[3]Constitution, By-Laws and Regulations, of Canada, Regulation 1300, Supervision of Accounts

Peter R. Greene
Affleck Greene McMurtry LLP

Peter R. Greene

Peter is a widely recognized and renowned litigator with substantial expertise in high profile and complex Commercial Litigation at the trial and appellate levels. Peter acts as counsel for insurance companies on professional liability, E&O claims, Director’s and Officer’s liability, and surety, fidelity and dishonesty bond claims. He has particular expertise in securities litigation and Regulatory Hearing, and has acted for Canada’s largest investment firms. He regularly acts as defence counsel in large Class Actions before the courts in Ontario, and before national and provincial Regulatory agencies, boards and tribunals. Peter is regularly involved in large product liability and construction contract cases involving Construction Liens or Surety Bonds.

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