Petitioner's claim was related to the distribution and
management of structured products akin to principal protected notes
("PPNs"), from 2002 to the fall of
2008. The PPNs' in question were linked notably to hedge
funds. In the fall of 2008, in the midst of the global financial
crisis, the PPN holders were informed that these would not provide
any return for the rest of their terms, which varied from 3
to 7 years. In light of this, Petitioner sought compensatory
damages equivalent to the alleged loss of return on his
investment, in addition to punitive damages.
Three principle allegations were made against Respondents:
1) Petitioner alleged that Desjardins
Financial Services Firm Inc. ("DFS") and
Desjardins Trust inc. had falsely and/or misleadingly
represented the risk profile of the PPNs in promotional
2) Petitioner alleged that DFS had failed to
properly train and supervise its representatives in the context of
the distribution of the products.
3) Petitioner alleged that Desjardins Global
Asset Management ("DGAM") was liable for
the misconception of the PPNs and mismanagement of the funds
invested in the underlying hedge funds. Petitioner also alleged
that DGAM was liable for investments made in
asset-backed-commercial paper ("ABCP")
prior and after the market freeze of August 2007. The claim for
punitive damages was solely based on these alleged investments in
In her decision, Justice Claude Dallaire assessed
Petitioner's allegations in light of the criteria set out at
section 1003 CCP. With respect to the criterion of section 1003 b)
CCP, Justice Dallaire dismissed the proceedings as against DFS
based on the absence of a proper legal syllogism supporting
Petitioner's contractual claim. Although DFS was the financial
service firm that acted in the context of the distribution of the
PPNs, the contracts were issued by the issuers of the PPNs as were
the promotional documents. Justice Dallaire found that although DFS
brokers did distribute the PPNs, DFS could not be found liable in
the absence of any alleged characterized or particularized fault by
them. She also dismissed the proceedings under section 1003 a) CCP
on the basis that such a "broker/dealer class action"
could only lead to individual trials based on individual evidence
as Petitioner did not allege any common facts or common evidence
that would demonstrate otherwise. Justice Dallaire also concluded
that Petitioner's allegations against DGAM were too vague,
tenuous and speculative with respect to the actual role of DGAM
relative to the conception and management of the PPNs to grant
authorization under the criterion of section 1003b) CCP. With
respect to the claim for moral damages, Justice Dallaire concluded
that the Desjardins entities had been released from any and all
claim in relation with the ABCP market pursuant to the CCAA Court
sanctioned Plan of arrangement and compromise that followed the
restructuring of the ABCP market (2007-2009).
The decision is one of a very few decision in the field of class
actions related to the distribution and management of structured
products to the retail market. It establishes clearly that the
complexity of a file does mean that Courts will be less demanding
with respect to the specificity of the facts alleged and the
quality of the evidence filed in support thereof prior to granting
authorization under the criteria of 1003 CCP.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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