Today, on June 9, 2016, the Supreme Court of Canada granted former Livent auditor, Deloitte & Touche, leave to appeal from the decision of the Court of Appeal for Ontario, in Livent v. Deliotte & Touche that it was liable for more than $80 million in damages to the receiver for theatre company, Livent, due to its failure to detect fraud by Livent’s senior management. Two members of Livent’s management team, Myron Gottlieb and Garth Drabinsky, were ultimately criminally convicted of fraud and served jail time in connection with the Livent fraud.
It is expected that this case will continue to be watched very closely by auditors and the legal counsel that advise them – as it will set the rules for when an auditor will be held responsible for frauds committed by the very company it has audited. The decisions in this case in both the Superior Court of Justice and the Court of Appeal for Ontario diverged sharply from decisions in similar circumstances in the U.S. where courts have found that auditors should not be held liable to a corporation for negligently failing to detect the corporation’s own fraud, at least where the fraud was committed by the directing minds of the corporation. It will be interesting to see whether the Supreme Court of Canada continues to set a very different course from the courts South of the border.
Ken 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 25 years, 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 Superior Court of Justice, the Divisional Court and the Court of Appeal for Ontario, as well as before the Supreme Court of Canada. Ken has also represented and advised clients in regulatory matters before the Investment Industry Organization of Canada (IIROC), the Mutual Fund Dealers Association of Canada (MFDA), both of which are now known as the Canadian Investment Regulatory Organization (CIRO). Ken has also represented clients before the Ontario Securities Commission (OSC), the Financial Planning Canada Standards Council (FPCSC), and the CPA Ontario Tribunal.
Ken has been ranked for Corporate and Commercial Litigation by Best Lawyers of Canada, for Securities Litigation by Lexpert, and he has been given the highest available rating of AV, or pre-eminent, by his peers on “Martindale-Hubbell.”
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