Rosenbaum & Frank LLP

For articles by Martin Rosenbaum, B.Com., B.C.L., LL.B. please click here

Articles by Albert S. Frank, LL.B.  please click here

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Articles by Martin Rosenbaum, B. Comm., B.C.L., LL.B.

 

Gotcha Enforcement: Securities Regulators Gone Wild
by Martin Rosenbaum, B.Com., B.C.L., LL.B.  & Vanessa Ibe

A recent decision of the Ontario Securities Commission highlighted an unfair practice used by the Commission and other regulators – the so-called "gotcha enforcement." Simply put, by this tactic regulators have laid charges against unsuspecting individuals, lawyers and corporations for violating the regulator's unannounced interpretation of a broad general law irrespective of whether or not that interpretation is sustainable or accepted as law.  In the case of Advanced Information Technologies (AiT) and Deborah Weinstein, a director and legal counsel for AiT, charges were laid against the company, Weinstein and Jude Ashe, the chief executive of AiT, for allegedly violating the material change disclosure requirements of the Ontario Securities Act. AiT and Ashe settled the charges out of court. However, Weinstein fought on. Read the entire article.
 

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Security for Costs: Friend or Foe
by Martin Rosenbaum, B.Com., B.C.L., LL.B.

In Ontario, an unsuccessful party in a lawsuit is generally ordered to pay a portion of the successful party's legal expenses. In cases where a claimant is outside Ontario, the Courts in Ontario are concerned that in the event that the claimant is not successful in the lawsuit, there will be no money available in Ontario to pay towards the winner's legal fees. Accordingly, the Courts in Ontario may order the out of province claimant to deposit with the Court money or other acceptable liquid assets to stand as security for costs. Read the entire article.

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NEGOTIATION AND CONFLICT RESOLUTION
by Martin Rosenbaum, B.Com., B.C.L., LL.B

In addition to our regular services, we offer structured negotiation and conflict resolution services. Most disputes headed to litigation or already in litigation, could be resolved much earlier and at less cost if the negotiation and conflict management were approached in a specific disciplined manner. Many business negotiations could proceed much more efficiently and effectively if the negotiations were approached in a systematic way. In both situations relationships that would otherwise be destroyed or significantly damaged could be salvaged, maintained or improved. Read the entire article.

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MITIGATION: Turning a Job Loss into a Gain
by Martin Rosenbaum, B.Com., B.C.L., LL.B.

An employee terminated from his or her employment has a positive obligation to mitigate damages even if he or she has a valid claim for wrongful dismissal. This means that a terminated employee is obligated to make reasonable attempts to find a similar job to the one that was lost. A terminated employee should look for a position requiring similar skills, at a similar status and similar salary to the job that was lost. While it may not be possible to find exactly the same type of position at exactly the same salary, efforts must still be made to find something similar. This rule applies to all forms of wrongful dismissal, including, constructive dismissal and discriminatory dismissal. Read the entire article.

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ELECTRONIC DOCUMENT PRESERVATION FOR LAWSUITS
E-Discovery Obligations
by Martin Rosenbaum, B.Com., B.C.L., LL.B.

As soon as litigation is contemplated or threatened, it is essential for all parties and their counsel to go beyond paper file searching, and consider what electronic data and information exists that may need to be disclosed. Rules of Court generally require all parties to litigation to disclose to the other parties all relevant documents, whether the documents are helpful or hurtful to any particular party. Relevance is the test for disclosure. There are a limited number of exemptions to this rule.  Read the entire article.

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Commercial List User's Committee:
An Update from the Best Practices Subcommittee
by Martin Rosenbaum, B.Com., B.C.L., LL.B.

The Commercial List is a specialized Commercial Court within the Ontario Superior Court of Justice in Toronto restricted to commercial and insolvency matters. The Commercial List Users' Committee is a committee made up of members of the bench who sit on the Commercial List from time to time, members of the bar who practice regularly before that court nominated by relevant Bar organizations and representatives of the Court administration. The Commercial List Users' Committee meets regularly to consider improvements to the operations and organization of this specialized court. The Users' Committee makes recommendations to the Regional Senior Justice and the Chief Justice of the Ontario Superior Court of Justice. Read the entire article.

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Articles by Albert S. Frank, LL.B.

Please note that the following articles are not intended to be complete statements of the law. On the contrary, they are general discussions and do not take into account all factors that could affect a particular case at a particular time and place. Moreover, they have not been altered to reflect any changes that might have taken place in the law since initial publication.

In other words, an article cannot give you legal advice; if you need legal advice you should consult a lawyer.

By publication:

Bottom Line, The

Computer Freelancer, The

Horse & Country

Lawyers Weekly, The

National (a Canadian Bar Assn. publication)

National Post

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Bottom Line, The – The Independent Voice for Canada’s Accounting and Financial Professionals

Accountant Takes The Stand, Steps For The Expert Witness. I see your future...
The mists of time are parting and I see... you, in a courtroom... under oath. You might never have expected it but there you are – a witness.

Can Your Client Be Saved By A Private Receivership? The safety of your client’s capital and the survival of your client’s business could depend on taking a simple precaution

Salad Oil Scandal Still Smells. Frauds like Bre-X, in which purported massive quantities of gold did not actually exist, are nothing new. A classic example is the Great Salad Oil Swindle.

Covering All Bases In A Sale. Unloading business filled with legal pitfalls.

Beware Bankruptcies Rising From Dead. Lawsuits not over until they’re over.

Some Investor Protections. Investment firm problems.

Stool Pigeon Profession. Accountants, stockbrokers, real estate agents, lawyers, and various other persons and entities have recently been drafted to serve as unpaid informants against their own clients, contrary to the normal concepts of fiduciary duty and professional ethics.

Three Corporate Remedies. Oppression, Derivative Action & Winding Up.

Downright Criminal Interest. Interest rates on certain kinds of financing, such as credit cards, are notoriously high. Some lenders, however, push interest to levels far beyond the realm of credit card debt. Some lenders charge interest that is downright criminal.

An Act of War. Terrorism and the Law.

Conflicted Financial Professionals. In recent years conflict of interest issues have become increasingly important for financial professionals.

The Criminal Side of Debt Collection. Most people understand that it is illegal to collect a debt by the use of guns and knives. Criminal violence is criminal violence, even if the motivation is to collect a just debt. But what about the more subtle connections between debt collection and the criminal law?

Are Directors Personally Liable? Who’s to blame when the stock takes a nosedive?

Interference With Contract Relations Carries Big Risks. Sued for Someone Else’s Breach.

The Pseudo-Lawyer: A Financial Professional Is Not A Lawyer. The less you know, the simpler things seem. To a bright person like a successful financial professional, law can look simple.

Getting A Handle on the Alter Ego and Joint Partner Trusts. New legislation is bringing in two new kinds of trust: the alter ego trust and the joint partner trust.

Creditors As Complainants. Business Act Lets Complainants Go Where Directors Fear to Tread.

Of Crooks and Governments. The legal basis of prosperity.

With Our Eyes On the Future and Our Grip On Change. The law is always changing, and change seems to be accelerating. Statutes change, procedures change, and judicial opinion changes.

Auditors As Advocates: A Lesson From Legal Ethics. Why are highly capable professionals getting themselves, their firms, and to some extent their profession, into trouble?

Ontario’s New Property Seizure Law. Grabbing the goods.

Pre-Incorporation Contracts – Who Owns Them? In January of 2002 the Court of Appeal for Ontario dealt with the law of pre-incorporation contracts under the Business Corporations Act, R.S.O. 1990, c. B. 16, the “Act.” Since the Act is similar to legislation in force federally and in various other provinces, this case is of general interest across Canada.

Seals: The Power That Drips From Red Wax. Is sealing a fading custom, of no real significance?  Actually, there is still power in that old red wax.

Nigerian Adventure Excursion In Large-Scale Fraud. Within 10 months after becoming accounting manager, Dobis began using his position of trust to steal from his employer. Before he was done he stole over $2 million, crippling the company and endangering its survival.

Restraining Trade The Legal Way. Non-Competition and Non-Solicitation.

Diogenes and the Quest for Honest Audit. In these post-Enron days we face a problem with the audited financial statements of publicly traded corporations. Are most of them honest? Some of them? Any of them?

A Lost Opportunity For ‘Lost Opportunity’. A decade or more later, the courts are still sifting the debris from the real estate crash of the early 1990s. Let us take a look at Rodaro v. Royal Bank of Canada (2002), 59 O.R. (3d) 74, an interesting example from the Court of Appeal for Ontario.

Blue Pencil Blues. Court Draws Line On Criminal Interest Rates.

Veterans’ Pensions And Fiduciary Duty. Another Remembrance Day has passed, and I am still remembering the disabled veterans. They did their duty in times of war, and suffered harm as a result. The Court of Appeal for Ontario recently decided, unanimously, that the federal government owes a fiduciary duty to those veterans, and has failed in that duty.

Buying A Bankrupt’s Business. Judicial decisions in Britain, the United States, and various Canadian provinces deal with the law of buying and selling a business belonging to a person who has gone bankrupt.

Promises, Promises…Real Estate Warranty Enforceability.

A Politician’s Bedfellow. Releases And Rescission

Foss v. Harbottle Still Rules. Can shareholders sue for harm to their company?

A Trustee for the Oppressed. Suppose the directors, officers, and shareholders of a corporation see that it has problems. Can they “take the money and run” by selling the corporation to a buyer of dubious substance, perhaps even a shell corporation, leaving the creditors to suffer in the resulting bankruptcy?

Can Investors Sue the IDA? Can investors sue the Investment Dealers Association of Canada, the “IDA?” The Court of Appeal for Ontario recently considered this in the case of Morgis v. Thomson Kernaghan & Co., (2003) 65 O.R. (3d) 321.

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Computer Freelancer, The

The Disappearing Computer. Some day a lawyer may walk into your office or home with a Court Order and walk out with your computer.

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Horse & Country

You Could Lose More Than Your Horse. Perils of the “Standard” Boarding Contract

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Lawyers Weekly, The

Judge-Made Contingency Fees. Every year the notices come in the mail, telling me that legislation is on the way to legalize contingency fees in Ontario, the only province in Canada that does not yet allow them. Somehow, though, the years go by and the legislation never arrives.

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National (a Canadian Bar Association publication)

Freedom of Speech No Defence For Defamation. It is inherent in the notion of human rights that the rights of an individual must be restricted for the sake of other individuals. Your right to freedom of action must be limited out of respect for my rights.

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National Post

Due Process. A friend of mine once told me he opposed capital punishment, but if anyone ever killed one of his family members, he would happily hire a gangster to kill the offender

Copyright © Albert S. Frank