An interesting Case was just shared with me by Ken Kivenko. Thanks Ken. The case is a class action lawsuit entitled French and Karas et al v. Smith and Stephenson et al, 2012 ONSC 1150 (CanLII) and found here... canlii.ca/t/fq4qb . The defendants argued jurisdiction and that it would be preferable for the plaintiffs to use the OBSI to pursue justice. In response, Justice Shaughnessy found that: [85] I find that the OBSI proceedings would not fulfill the CPA (Class Proceedings Act) goal of providing class members with access to justice in relation to their claims for the reasons that follow: 1) The scope and nature of the OBSI jurisdiction and remedial powers are very limited and summarized as follows. (a) the characteristic of the OBSI is that it invites participation by the Participating Firm but it cannot compel cooperation; (b) the OBSI can make a recommendation but it cannot compel the Participating Firm to make the payment recommended; (c) the only remedy for non cooperation in an investigation and/or not following a recommendation is the rather anemic remedy of publishing the name of the Participating Firm and details of the refusal; (d) the enforcement procedure is not binding on the Participating Firm; (e) the OBSI can only receive Complaints and make recommendations for amounts not greater than $350,000.00 (except if the parties otherwise agree); (f) it is not readily apparent that punitive damages can be claimed in the OBSI proceeding. 2) The appearance of impartiality and independence of the OBSI is to some extent in play. While the Terms of Reference states that the Ombudsman shall at all times serve as an independent and impartial arbiter and shall not act as an advocate for the Participating Firm or the Complainant nevertheless the same Terms state at s. 24 (d) that the Ombudsman’s recommendation is not binding on the Participating Firm or the Complainant. A truly impartial and independent body would have control over its process. 3) This dispute process is sparsely defined. In s.16 (b) of the Terms of Reference there is a listing of non-privileged information that the Participating Firm may be asked to produce and which the OBSI reviews in making any recommendation. There is no hearing process defined wherein the Complainant may introduce evidence or make submissions. The Ombudsman is not bound by the rules of evidence (s.15). The OBSI does not provide legal, accounting or other professional advice (s.3 (i)). 4) In contrast to the procedure underlying a class proceeding, which is premised on facilitating transparency and participation on a class wide basis, the OBSI proceedings provide little or no basis for investor participation. 5) Similarly the procedure by which recommendations are arrived at does not facilitate investor participation or a record of how the OBSI recommendation, if any, is calculated
Posted on: Wed, 25 Sep 2013 15:39:52 +0000
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