Canada: Relying On Counsel Doesn't Excuse Illegal Share Distributions

Directors who rely in good faith on advice from professional advisors, such as accountants and lawyers, may have a due diligence defence to certain legal claims in some situations. However, a recent decision of the British Columbia Securities Commission (the Commission) in Photo Violation Technologies Corp. (2013 BCSECCOM 276 and 2012 BCSECCOM 284) makes it clear that reliance on legal counsel doesn't allow directors to avoid liability under securities laws when a company issues shares without appropriate exemptions from the registration and prospectus requirements.


Photo Violation Technologies Corp. (PVT) raised approximately $5.2 million from 322 investors between 2005 and 2008. In respect of 272 investors, who invested approximately $3.6 million during the relevant period, PVT purported to rely on the friends, family and business associates and accredited investor exemptions from the prospectus and registration requirements of the BC Securities Act, none of which applied in the circumstances.  PVT retained legal counsel, with expertise in financing, who advised them in connection with the private placements.

Mitschele, one of the principals of PVT, took a course at Simon Fraser University for directors and officers of public companies. At that time, he realized that there may have been problems with PVT's earlier fundraising (i.e. the purchasers may not have qualified for the exemptions relied on).

PVT retained new legal counsel to contact the Commission on its behalf to see what could be done to address the issue.  The new lawyer re-filed documents with the Commission and met with Commission staff. They expected that Commission staff would advise them if there were any issues with PVT's previous filings. According to the decisions, however, "[t]his did not happen. Commission staff's next step, from PVT's point of view, was the issuance of the notice of hearing for this proceeding."

At a 2012 liability hearing, Mitschele applied to enter evidence about PVT's legal advice in connection with its distributions and PVT's dealings with Commission compliance staff before the notice of hearing was issued. However, the Commission did not allow the evidence at that point because it stated that those issues were not relevant to liability (although they were relevant to sanctions).

In its 2012 liability decision, the Commission noted that, as PVT's president and chief executive officer as well as a director, Mitschele was involved in PVT's capital raising activities. Among other things, he signed subscription agreements and authorized (with the other directors) the issuance of PVT shares to investors. Because of that, the Commission found that he authorized, permitted and acquiesced in PVT's contraventions of the Securities Act and also contravened the Securities Act himself.


In its 2013 sanction decision, the Commission stated that "[e]ngaging a law firm or advisor to assist in compliance with regulatory compliance does not relieve a respondent from liability for non-compliance. It may be, however, a mitigating factor in determining the appropriate sanction for non-compliance, depending on the circumstances of each case."

Neither Mitschele nor the other insider of PVT involved in this hearing had any prior disciplinary history or profited from their involvement with PVT. In fact, both had incurred significant losses.

Ultimately, the Commission banned both Mitschele and the other insider of PVT from trading in securities for five years or holding a position as a director or officer of any issuer. However, the Commission allowed both to continue acting as director and officer of specific companies with which they were already involved. It also allowed Mitschele to engage in conduct, including advertisement, solicitation, and negotiation, for the purpose of obtaining financing for a specific company's business, provided that he seeks an appropriate variation order before that company actually sells the securities.

PVT itself wasn't subject to any orders as it is bankrupt.

Although both individuals were disciplined, it appears that the sanctions did take into account their reliance on counsel and other steps taken to address the deficiencies. The sanctions imposed by the Commission were significantly less than what the executive director was seeking, which included:

  • 20 to 25 years prohibition from acting as director or officer of any issuer, acting in a management or consultative activity in connection with activities in the securities market and from engaging in investor relations activities; 
  • administrative penalties of $200,000 to $250,000 against the individuals; and 
  • disgorgement orders of over $3.5 million against PVT and Mitschele.


This case underlines that relying on advice from legal counsel will not excuse you from liability for non-compliance with securities legislation. Ultimately, in connection with a private placement, the company and its directors are responsible for making sure that purchasers of securities can rely on the prospectus exemptions that they say they are relying on.

In the 2012 liability decision, the Commission set out the following points (from Solara) of which issuers and their directors should be aware when relying on an exemption from securities legislation:

  • the person relying on an exemption has the onus of proving that the exemption is available; 
  • lack of documentation will make it difficult for the person to meet that onus;
  • mere assertions or ticked boxes on subscription forms from investors that they meet the criteria for an exemption is not adequate; the issuer must establish and document the facts that demonstrate that the investor accredited investor, or a family member, close personal friend, or close business associate of a director, officer or founder; and 
  • after making the appropriate inquiries, the issuer must have a reasonable belief that the facts are true and that the legal requirements for use of the exemption have been met.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.