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THE LITIGATOR

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The Litigator
AGM :: Affleck Greene McMurtry LLP

THE LITIGATOR

Affleck Greene McMurtry LLP
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Ontario’s top Court dismisses class action against auditor

In its unanimous decision in Lavender v. Miller Bernstein LLP released on September 5, 2018, the Court of Appeal for Ontario made it clear that notwithstanding the liability imposed by the (“SCC”) in the recent ’s negligence case of Livent v. Deloitte & Touche, the reasoning of the SCC in  will make it rare for an auditor on a limited retainer to be held liable to anyone other than its audit client, such as investors, clients or other stakeholders of the audit client.

In , the Court of Appeal heard an appeal from Mr. Justice Belobaba’s summary judgment that the former auditor of defunct dealer, Buckingham , was liable for former Buckingham clients’ losses suffered when Buckingham was placed into receivership and then shut down.  was alleged to have been negligent in auditing Form 9 Reports filed with the as part of Buckingham’s annual registration renewal – reports that confirmed Buckingham’s proper segregation of investor assets from dealer assets, and its compliance with minimum capital requirements.  There was no dispute that the Form 9 Reports were inaccurate and that Buckingham had failed to properly segregate client cash and and hold them in trust. This was clearly contrary to Buckingham`s regulatory obligations and proper disclosure could have led to Buckingham potentially being shut down by the OSC. The “core question” identified by Justice Belobaba was whether Miller Bernstein owed a duty of care to Buckingham’s clients when it audited the Form 9 Reports. In analyzing this issue, Justice Belobaba found that there was a sufficient level of proximity between the Miller Bernstein and Buckingham’s clients and harm to those clients was sufficiently foreseeable to found a duty of care under the tradition common law test as cited by the SCC in its 1997 Hercules v. Ernst & Young decision. As such, Miller Bernstein was liable for Buckingham’s clients’ losses and summary judgment was granted to that effect.

In a unanimous decision written by Madam Justice Gloria Epstein, the Court of Appeal not only overturned the judgment against Miller Bernstein; it granted summary judgment the other way – dismissing the entirely. In doing so, the Court of Appeal observed that Justice Belobaba had not had the benefit of the Supreme Court of Canada’s decision in Livent and cited the requirement in Livent that the plaintiff’s reliance be within the scope of the auditor’s undertaking or retainer. In other words, if the purpose of the auditor’s retainer was not to protect or otherwise provide information or comfort to the plaintiffs in a particular action, there will in most cases be no duty of care owed to those plaintiffs. Buckingham’s retainer of Miller Bernstein was limited to auditing Buckingham’s Form 9 Reports, which were required to be filed confidentially with the OSC. The Form 9 reports were never provided to Buckingham’s clients, nor were they intended to inform the clients or be used by those persons in making investment decisions. Further, there was no evidence that any Buckingham clients ever relied upon the Form 9 Reports. Finally, the Court of Appeal cited a number of serious factual errors by Justice Belobaba, including his erroneous findings that Miller Bernstein had itself filed the Form 9 Reports with the OSC (it had not) and that it had access to the identities of all of Buckingham’s clients (it did not).

In summary, there was no duty of care owed by Miller Bernstein to  Buckingham clients and therefore no basis for it to be held liable to them. As indicated in a prior article in The Litigator, the SCC’s decision in Livent provided significant comfort to auditors on limited retainers that they will be protected from liability to investors and other stakeholders of their audit clients.  The decision in Lavender v. Miller Bernstein LLP provides additional comfort, as  the auditor avoided liability to persons who were not clients or intended recipients of its audit report, despite the existence of  clear errors in Form 9 Reports it had audited and despite the fundamental importance of those reports to both Buckingham`s compliance with its regulatory obligations and its ability to remain in business.

Kenneth A. Dekker
Affleck Greene McMurtry LLP

Kenneth A. Dekker

Kenneth Dekker, a partner of the firm, is a successful trial and appellate lawyer who is valued by his clients as a resourceful and practical litigation counsel.

Over more than two decades, Ken has litigated noteworthy cases in a range of fields that include class action defence, securities and broker-dealer litigation and regulatory defence, corporate and shareholder disputes (including oppression and winding up cases), defamation, civil fraud litigation, disputes over contracts, injunctions, professional liability litigation, employment litigation and cross-border litigation issues.

Ken has appeared before all levels of courts in Ontario, including the Ontario Court of Justice, the Superior Court of Justice, the Divisional Court and the Court of Appeal for Ontario, as well as before the Supreme Court of Canada. Ken also represents and advises clients in regulatory matters before the Investment Industry Organization of Canada (IIROC), the Mutual Fund Dealers Association of Canada (MFDA) and the Ontario Securities Commission (OSC).

Ken has been recognized for Corporate and Commercial Litigation by Best Lawyers of Canada and has been given the highest available rating of AV, or pre-eminent, by his peers on Martindale-Hubbell.

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