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This week at the SCC

|Written By Elizabeth Raymer

February 13-17, 2017

The Supreme Court of Canada will hear four appeals this week, notably Deloitte’s appeal of the finding of negligence against it following Livent's bankruptcy in the late 1990s. Two appeals are companion Charter cases from Alberta involving appellants charged with securities fraud, and the last, from British Columbia, is a criminal case concerning similar fact evidence.

February 14 – Alberta – Peers v. R. (Alberta Securities Commission)

Charter of Rights: Jeremy Peers was charged with 33 offences under s. 194 of the Securities Act, including unregistered trading in securities, non-compliance with prospectus disclosure obligations, misrepresentation, and fraudulent use of investor funds. His son Robert Peers faced one count of investor fraud. Jeremy Peers sought a determination that s. 11(f) of the Charter was engaged and asked the Provincial Court to quash the information or stay the proceedings. A judge held that Peers was entitled to a trial by a jury and transferred the proceeding to the Court of Queen’s Bench. That Court allowed the appeal and transferred the matter back to the Provincial Court.

Read the Alberta appellate court decision here.

Related news stories:

Edmonton fraudster Jay Peers pleads guilty to breaching securities laws; Edmonton Journal

ASC charges father and son with securities fraud; Investment Executive

Related law firm bulletins:

SCC to Consider Whether Charges Under the Securities Act Warrant Trial by Jury; Borden Ladner Gervais LLP

February 14 – Alberta –Aitkens v. Alberta Securities Commission

Charter of Rights: Ronald Aitkens faced several charges under the Securities Act, and brought an application contending that under s. 194 of the Act he could face a more severe punishment than five years of imprisonment, and was therefore entitled to a jury trial pursuant to s. 11(f) of the Charter. He also argued that the Provincial Court of Alberta does not have the jurisdiction to conduct a jury trial and that the matter should be transferred to the Court of Queen’s Bench to determine whether it has jurisdiction to conduct a jury trial over a provincial offence. A Provincial Court judge rejected the argument that the applicant was entitled to a jury trial, a decision confirmed on appeal to the Court of Queen’s Bench and again on appeal to the Court of Appeal of Alberta.

Read the Alberta appellate court decision here.

Related news stories:

Appeal court denies jury trials for men accused under Securities Act; Calgary Herald

Related law firm bulletins:

SCC to Consider Whether Charges Under the Securities Act Warrant Trial by Jury; Borden Ladner Gervais LLP

February 15 – Ontario  – Deloitte & Touche v. Livent

Law of professions: Livent Inc. was a publicly traded company. In 1998, new management discovered serious accounting irregularities in its financial records and restated its revenues and expenses. Livent’s founders were later convicted of fraud, class actions were commenced, and Livent was placed into receivership. Deloitte & Touche (now Deloitte LLP) was Livent’s auditor between 1989 and 1998. In 2001, Livent, through its receiver, commenced an action against Deloitte alleging that its audits did not meet generally accepted auditing standards, and that Deloitte’s negligence in failing to detect the fraud resulted in Livent realizing less for its assets upon liquidation. The trial judge found Deloitte negligent and awarded Livent damages. The Court of Appeal dismissed an appeal and a cross-appeal.

Read the Ontario appellate court decision here.

Related news stories:

Supreme Court to hear Deloitte's appeal of landmark Livent ruling; The Globe and Mail

Court upholds ruling on Deloitte’s negligence over Livent; The Globe and Mail

Related legal bulletins:

Curtains For Auditor’s Arguments At The Court Of Appeal In Livent Case; Affleck Greene McMurtry LLP

Livent v Deloitte: Has the Fat Lady Finally Sung? The Court, CanLII Connects

The Increasing Scope Of Auditors’ Negligence: Livent Inc. v. Deloitte & Touche LLP; Gowling WLG

February 17  – British Columbia – Clifford v. R.

Criminal law: Scott Clifford was convicted of one count of arson and one count of mischief for allegedly burning down his ex-girlfriend’s parents’ garage and girdling trees on their property. The appellant’s alibi to police was rejected by the trial judge. On appeal, Clifford argued that the trial judge erred in using the disbelieved alibi as evidence of guilt, and that the judge erred by admitting what amounted to similar fact evidence. The Court of Appeal for British Columbia dismissed the appeal, with one judge dissenting.

Read the British Columbia appellate court decision here.

Related news stories:

Alberta vet convicted of arson at home of B.C. lawyer based on cell records; Metro Vancouver


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