GET YOUR MONEY BACK!

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In this IIROC judgement against a broker (salesperson-advisor-registrant??) there is a wealth of information about rules, requirements and expectations.

Keywords for getting YOUR money back include:

"suitability" of investments (and of advice) (not mentioned include suitability of high cost or high commission abuse)

"Quality" of investments

"Diversity" of investments.,

etc

Hearing Panel:
THE ALLEGATIONS
¶ 1
IIROC alleges that the Respondent committed the following contraventions:

1. Between 2005 and 2009, the Respondent made investment recommendations that were unsuitable for two clients, contrary to IIROC Dealer Member Rule 1300.1(q) (IDA Regulations 1300.1(q) prior to June 1, 2008).

2. Between 2005 and 2009, the Respondent made discretionary trades in the accounts of two clients without first having the accounts approved and accepted as discretionary accounts, contrary to IIROC Dealer Member Rule 1300.4 (IDA Regulation 1300.4 prior to June 1, 2008).

3. Between May 2008 and June 2009, the Respondent personally compensated two clients for losses in their accounts without the knowledge or approval of his Member firm, contrary to IIROC Dealer Member Rule 29.1 (IDA By-Law 29.1 prior to June 1, 2008).

Re Brodie
IN THE MATTER OF:
The By-Laws of the Investment Dealers Association of Canada
and
The Dealer Member Rules of the
Investment Industry Regulatory Organization of Canada (IIROC)
and
John Edward Brodie
2013 IIROC 12
Investment Industry Regulatory Organization of Canada Hearing Panel (Nova Scotia District)
Heard: October 15 - 18, 2012 Decision: March 22, 2013
Richard Bird, Q.C.(Chair), Mr. Bruce Walker and Mr. John Chappell
Appearances:
Mr. Milton Chan, Enforcement Counsel, Investment Industry Regulatory Organization of Canada Mr. Brian Awad, Counsel for the Respondent
DECISION
FINDING OF FACTS

¶ 2 The clients are herein identified as Mr. and Mrs. W. Mr. W was born in 1958. He attended the College of Cape Breton and received a diploma that qualified him as an electrical engineering technician. He worked in that capacity with Michelin and then in the mid 1990’s with Pratt & Whitney. By 2005 his salary was in the mid $75,000 range. At the time of this hearing he was still employed with that firm. He described his job as one of
Re Brodie 2013 IIROC 12 Page 1 of 9
performing preventive maintenance on equipment. His wife, Mrs. W, had taken business courses and had been the manager of a shoe store in 1985 when she assumed the role of full time homemaker. In 2005 they owned their own home. It was subject to a mortgage. The exact amount was not disclosed at the hearing.

¶ 3 In the fall of 2005 the mother of Mr. W won over $7 million in a lottery. She gave $1.1 million of her winnings to her son. (It is possible that the gift was made to her son and daughter-in-law jointly, but nothing in these proceedings turns on that point.) Mr. W and Mrs. W decided to invest a portion of the gift and sought out an investment advisor. They considered using at least one other investment advisor before settling on the Respondent. Mr. W’s uncle had an account with the Respondent and asked the Respondent if he would mind if he gave his nephew the Respondent’s name as a potential investment advisor. After one or two meetings between Mr. and Mrs. W and the Respondent, the Respondent submitted an Investment Proposal that was prepared in November 2005. The Proposal is attached as Appendix A to this decision.

¶ 4 Although the Proposal states that the objective was to invest $1.1 million. It is clear that even if the full amount of the gift were placed in the account that some of it would be temporary. The Recommendation on page one of the Proposal states that one half of the funds would be invested in income trusts and “the balance of the monies in highly liquid Government of Canada 30-day T-Bills pending a new home purchase and unknown financial requirements over the next six months.” When the account was opened in December, 2005 only $500,000 deposited to the account.

¶ 5 The Proposal states that one of the objectives was to “produce a sustainable income of $5000 per month in a tax efficient manner.” It is clear from page two of the proposal that if the figures there are accurate, that an investment of $500,000 in the selected income trusts would produce sufficient cash flow to meet that objective.

¶ 6 The second objective mentioned on page one of the Proposal was to “Protect and grow capital with an objective of growing the account at a 10 percent annual rate.” Apart from the slight excess of income projected ($65,460) over the payments to Mr. and Mrs. W (12 x $5000 = $60,000) that growth would have to come from capital appreciation. The objective could be seen as aggressive, but the Respondent testified that it was “doable.”

¶ 7 The Respondent recommended that the funds be invested in income trusts because the rate of return was generally higher in those investments compared to more traditional equities. The reason why this was so at the time was that income trusts were structured to avoid the double taxation the existed with dividends in the corporate setting. As it came to pass, a change in the taxation of income trusts would have a significant impact on the value of income trusts.

¶ 8 The Proposal states twice that the portfolio would be diversified (once under the heading Rationale – “Diversification among traditional asset classes is available through careful selection of individual positions...” and once under the heading Recommendation – “invest half of the funds available now in a diversified portfolio of income trusts”).

¶ 9 A margin account was set up on December 12, 2005. Mr. and Mrs. W signed an “Account Information” statement, known in the industry as a “know your client” (KYC) statement. The first page of that statement is attached as Appendix B. The Respondent testified that he completed the form and had Mr. and Mrs. W sign it. Under the heading “Investment Experience” the Respondent checked “moderate” for numerous categories. For short sales, options, and commodities futures, he checked “none.” As the Respondent pointed out, the form only provided three choices of investment experience, “none”, “moderate”, and “extensive.” The Respondent testified that he was partly influenced in making these choices by the fact that Mr. W had a Registered Retirement Savings Plan and a Locked-in Retirement Savings Plan with Scotia McLeod. In the latter plan Mr. W held some shares in a mining company.

¶ 10 While on the stand, Mr. W professed to know nothing about investments. However, we do not take issue with the initial judgments made by the Respondent with regard to Mr. W’s investment experience.

¶ 11 The next part of the KYC form sets out five categories of investment objectives. The choices made were:
Re Brodie 2013 IIROC 12 Page 2 of 9

¶ 13
In an Agreed Statement of Facts dated October 12, 2012 it is stated:
“1. In regard to account 52A-621E-8 [herein referred to as the “margin account”] at Canaccord Capital:
(a) From December 2005 to December 2007
i. The account was invested in furtherance of strategies that were moderately-aggressive or aggressive, and that carried moderately-high or high levels of risk.
ii. For much of the time period, 80% or more of the account’s holdings carried a medium-high or high level of risk.”
Preservation of Capital, Low Risk 20% Income, Low-medium Risk 20% Moderate Growth, Medium Risk 50% Short Term Trading, Medium –high Risk 0% Speculative, High Risk 10%
Total 100%
When the account was opened in December, 2005 not all the securities mentioned in the Proposal were

¶ 12
purchased. By the end of December, 2005 the percentage amount invested in oil and gas and energy sectors was greater than that which was originally proposed.

¶ 14
November Proposal suggested it would be. One security, Trilogy Energy, constituted 24% of the portfolio at this time. And, the Respondent has agreed that the monies were invested in securities that were riskier than the KYC suggested it would be.
It is our conclusion that at the end of December, 2005 the margin account was not as diversified as the

¶ 15 The Respondent recommended a margin account at the very beginning. The evidence of the Respondent was that it was intended to use the borrowing power to facilitate the timing of trades and that it was not intended as source of long term funds.

¶ 16 In addition to the margin account, Mr. W opened an RRSP Account, an LRSP Account and a Spousal RRSP Account with Canaccord.

¶ 17 Early in 2006, Mr. W spoke with the Respondent about the idea of mortgaging his home and placing the funds borrowed in the margin account. The Respondent’s main concern was that Mr. W undertake the borrowing so that the interest on the funds borrowed would deductible for tax purposes. On February 27, 2006, a cheque for $186,500 was deposited into the margin account.

¶ 18 Given that Mr. W would be paying interest on the borrowed funds, implicit in this strategy was that the funds would be invested in securities that provided a higher return (and thus a higher risk) than the mortgage. It is not clear that Mr.& Mrs. W understood that implication or that the Respondent explained that to them. Changes were only made to the KYC form after prompting from other employees of Canaccord.

¶ 19 The margin account had a debit cash balance at the end of the first month. In the first six months of operation only at the end of February, 2006 (the month the proceeds from the mortgage were deposited in the margin account) did it have a credit balance. In the first six months the cash debit balance at the end of the month reached a high of over $70,000 at the end of April, 2006. By the end of 2007 the balance was over $570,000.
¶ 20 The Respondent did not keep any notes of any meetings or telephone calls with Mr. and Mrs. W. There are, however, a few emails from various employees of Canaccord to the Respondent concerning the account. On March 13, 2006 Ms. Peggy Farinha emailed the Respondent and raised the question whether the client’s
Re Brodie 2013 IIROC 12 Page 3 of 9
investment objectives were attainable unless additional equity was forthcoming. The solution proposed by the Respondent was to change the investment objectives. This was done in April, 2006 to show medium risk, 75% and high risk of 25%. The email from Ms. Farinha suggested “90% venture 10% C P” to reflect the portfolio at that time.

¶ 21 During this period, the monthly draw by Mr. and Mrs. W was increased from $5000 to $5900. Mr. W testified that the increase was in part to cover the payments require as a result of the mortgage of the family home.

¶ 22 At the end of October, 2006 the Margin Account Summary shows the following:
Cash
Fixed Income Common Shares Other Securities TOTAL ASSETS
460,959 DR 141,667
12,000 825,032 517,739

¶ 23 On October 31, 2006 the federal Minister of Finance announced that the preferred tax treatment of income trusts would cease and new rules would be phased in over the next four to five years. At the end of November, 2006 the net value of the margin account was $341,383. Between these two dates Mr. and Mrs. W withdrew a total of $65,900 in cash. When that is added back, the decrease in value over the period October 1 – November 30, 2006 from market forces was just over $110,000.

¶ 24 Despite the drop in the market value of the margin account, withdrawals continued. In January of 2007, in addition to the $5900, $42,000 was withdrawn and another $21,666 in February, 2007.

¶ 25 The January withdrawal was noted by an employee of Canaccord, Christine Alphonso, who stated that the account was undermargined. Securities were sold to meet the call.

¶ 26 During the period August, 2006 to August 2007 Mr. and Mrs. W made significant cash withdrawals from the account. In addition to the monthly withdrawal of $5900 (which stopped around March, 2007), other withdrawals totaled more than $250,000. At the end of July, 2007 the cash in the margin account had a debit balance of more than $325,000. The Statement of Account for the period ending June 30, 2007 shows Net Income after the payment of interest of under $20,000 for the first six months of 2007. At this point is should have clear that the original investment objectives were not attainable.

¶ 27 From the very start of the margin account, investment in mines and minerals was contemplated. The KYC form dated April 20, 2006 changed the investment objectives to 75% moderate growth and 25 % speculative high risk. Short term trading was shown as 0%. Yet 5000 shares of Silver Wheaton were bought on April 20, 2006 and sold the next day for a gain of over $4000. Acadian Gold stock was purchased on April 28, 2006, and Gammon Lake Resources on December 28, 2006. But it was not until August, 2007 that the focus of the margin account shifted substantially. Investments in income trusts were sold and investments in mining and minerals increased and the cash debit balance reduced. By the end of August, 2007 the Account Summary for the margin account was as follows:
Cash
Common Shares Other Securities TOTAL ASSETS
56,959 DR
44,090 111,070 97,200

¶ 28 There was no evidence introduced at the hearing as to the balance of the mortgage at various times on Mr. and Mrs. W’s home. The original amount of the mortgage placed in the margin account was $186,500. There is a strong possibility that the overall investment was in the red at this point.
Re Brodie 2013 IIROC 12 Page 4 of 9

¶ 29 Over the next few months income trust securities were sold and new investment purchases in the margin account were concentrated in the mining sector.

¶ 30 On November 9, 2007 Peggy Farinha, Compliance Officer with Canaccord wrote Mr. and Mrs. W to confirm a change in the investment objectives to:
Moderate Growth 50% Venture Situations 50% Total 100%
The letter states that the changes were made as per discussions with the Respondent. There is conflicting evidence as to whether these discussions took place. Mr. W testified that he never received the letter.

¶ 31
The parties state in the Agreed Statement of Facts that: “1. (b) From January 2008 to December 2009:
i. The account was invested in furtherance of strategies that were aggressive and that carried high levels of risk.
ii. 90% or more of the account’s holdings carried a high level of risk.
iii. The account was heavily weighed in the mining sector.”

¶ 32
During this period Mr. and Mrs. W withdrew a total of $12,000.
During the period January, 2008 to December 2009 the value of the margin account gradually declined.

¶ 33 The pattern of events in the two RRSP accounts and the LRSP account set up for Mr. & Mrs. W was similar to that in the margin account.

¶ 34 The original KYC forms for these accounts contained the same investment objectives as the margin account. In the RRSP account set up for Mr. W the mutual funds that were transferred into the account were sold and shares in Acadian Gold Corp. (latter changed to Acadian Mining Corp.) were purchased. The other investment was in Stornoway Diamond Corp. Both companies are classified as “junior natural resources – mining.”

¶ 35 Acadian Gold constituted a significant portion of the portfolio of both RRSP accounts and the LRSP account.

¶ 36 Starting May 9, 2008, the Respondent personally provided Mr. and Mr. W with financial assistance. The Respondent testified that he felt badly for the W’s and he did not want to see the margin account closed. On May 9, 2008 he deposited $20,000 in Mr. and Mrs W’s account at the Royal Bank. The transfer was by way of a money order. A similar deposit was made for another $20,000 on September 29, 2008 and another for $4000 on June 10, 2009.

¶ 37 On October 31, 2008 the Respondent deposited $2000 into the margin account to cover the deficit in the margin and another $200 on February 9, 2009 for the same purpose.

¶ 38 On June 15, 2009 the Respondent purchased 50,000 shares of Mantis Mineral Corp. that were in the margin account from Mr. and Mrs. W for $3900. The Respondent testified that the shares were placed in his wife’s account and that he orally agreed to pay the W’s any profit made from the sale of the shares. He testified that the objective of the transaction was to provide the W’s with some liquidity in the margin account.

¶ 39 The Respondent’s and Mr. W’s testimony on the procedures that were followed in making trades over the life of the accounts with Canaccord is conflicting. The Respondent testified that he would have called Mr. W before making a trade. Sometimes he could recall the specific conversation, sometimes not. That is not surprising when one considers that the Respondent had between 100 and 150 clients. The Respondent kept no notes of any conversations. Mr. W denied receiving many calls. There is no question that a few calls were made. When it came time to liquidate holdings because of the withdrawals or the drop in the market value, Mr.
Re Brodie 2013 IIROC 12 Page 5 of 9
W and the Respondent were in agreement that Mr. W said something to the effect, “Do what you have to do.”

¶ 40 The Respondent testified that if he received an order to sell a security at a specific price that he would use his discretion as to when to make the sale as long as the period were no greater than two weeks.
ALLEGATION OF UNSUITABILITY OF INVESTMENTS

¶ 41 IIROC alleges that between 2005 and 2009, the Respondent made investment recommendations that were unsuitable for two clients (Mr. & Mrs. W), contrary to IIROC Dealer Member Rule 1300.1(q) (IDA Regulations 1300.1(q) prior to June 1, 2008).
¶ 42
Rule 1300.1 (q) states:
Each Dealer Member, when recommending to a customer the purchase, sale, exchange or holding of any security, shall use due diligence to ensure that the recommendation is suitable for such customer based on factors including the customer’s financial situation, investment knowledge, investment objectives and risk tolerance.
In Re Lamoureux [2001] A. S. C. D. No. 613 at p.15 a panel of the Alberta Securities Commission

¶ 43
described the duty of a registrant in assessing the suitability of an investment for a customer as follows:
Suitability is to be assessed prior to any investment recommendation by the registrant to the client. The process that culminates in a registrant’s investment recommendation to a client has three component phases or stages that must occur in sequence.
The first stage involves the “due diligence” steps undertaken by the registrant to “know your client” and to “know the product.” Knowing the product involves carefully reviewing and understanding the attributes, including associated risks, of the securities that they are considering recommending to their clients...
Only after the “due diligence” of the first stage is completed, can the registrant move to the second stage in which they fulfill their obligation to determine whether specific trades or investments, solicited or unsolicited are suitable for that client.
Suitability determinations...will always be fact specific. A proper assessment of suitability will generally require consideration of such factors as a client’s income, net worth, risk tolerance, liquid assets and investment objectives, as well as an understanding of particular investment products. The registrant must apply sound professional judgment to the information elicited from “know your client” inquiries. If, based on the due diligence and professional assessment the registrant reasonably concludes that an investment in a particular security in a particular amount would be suitable for a particular client, it is then appropriate for the registrant to recommend the investment to the client.
By recommending a securities transaction to a client, a registrant enters the third stage of the process. Whether a particular transaction has in fact been “recommended” is to be determined objectively, taking into consideration the content, context and manner of communication from the registrant to the client, to assess whether it could be reasonably be understood as a suggestion that the customer engage in a securities transaction. At this stage, when making the client aware of the potential investment, the registrant is obliged to make the client aware of the negative material factors involved in the transaction, as well as positive factors.
The disclosure of material negative factors in the third stage of the process is intended to assist the client in making an informed investment decision. It should be emphasized that such disclosure cannot ameliorate deficiencies in either of the first two stages of the process. If a registrant recommends securities that are not suitable for a particular client, then disclosure by the registrant during the third stage is irrelevant to their suitability
Re Brodie 2013 IIROC 12 Page 6 of 9

¶ 44
obligation in stage two. The registrant’s failure may have been the result of not knowing the client, or not knowing the securities, or an error in the suitability determination but, once the improper recommendation has been made, it does not matter whether or how the registrant discloses the material negative factors, or whether the client claims to understand and accepts the risks involved in the investment. The registrant has failed to fulfill their obligations. (Emphasis added)
We have concluded that the Respondent failed to fulfill his obligations to Mr. & Mrs. W in four ways.

¶ 45
objectives of Mr. & Mrs. W. Second, we have concluded that the extensive purchase of investments with borrowed funds was inappropriate. Third, the portfolio did not match the investment objectives in the KYC statement. Fourth, the risk factors for at least one investment was inappropriate for Mr.& Mrs. W.
(1) Diversification

¶ 46 With regard to diversification the Respondent has admitted that “From January 2008 to December 2009...90% or more of the account’s holdings carried a high level of risk [and] the account was heavily weighed in the mining sector.” We find that this was not suitable for Mr. & Mrs. W. It was contrary to the investment objectives set out in the KYC.

¶ 47 For the period before January 2008 counsel for the Respondent objected to the introduction of any evidence as to the classification of any securities other than through an expert witness. No expert witnesses were called. The Respondent made a preliminary motion asking the Panel to compel IIROC to do call expert witness(es). We refused. We did not think it appropriate to tell counsel for IIROC how to present their case.

¶ 48 The documents that counsel for the Respondent objected to are at Tabs 61 and 62 of Staff’s Compendium of Documents (Tab 62 is also found in Appendix B of Staff’s Submissions on the Merits) purport to summarize the investments that were in the margin account. Tab 61 purports to summarize the investment by risk and Tab 62, by industry.

¶ 49 Staff also included in the Compendium, company profiles filed with SEDAR and made available for public viewing. Each company is required to declare an Industry Classification. Counsel for the Respondent did not object to the presentation of these documents.

¶ 50 We should like to point out that these classifications are not necessarily irrebuttable, but we think that given the regulatory nature of the industry that they should at least be considered prima facie evidence.

¶ 51 Using the classifications that are presented on the company profiles for the investments in the margin account as of June 30, 2007 we have prepared the following summary:

First we have concluded that the portfolio was not sufficiently diversified to meet the investment
Security
Gammon Gold Calloway REIT Canetic Resources
UT – Global Uranium Harvest Energy Trust Income Financial Trust Mavrix Expl 2006 Paramount Energy Provident Energy
WT – Sprott
V alue 53,680 25,140 43,300
9,690 82,375 45,266 25,000 23,300 75,120
1,200
Classification on Profile Gold and precious metals Real Estate
Oil and Gas
Financial Oil and Gas Financial Financial Oil and Gas Oil and Gas Other
Re Brodie 2013 IIROC 12
Page 7 of 9
Tree Island Wire Trilogy Energy True Energy TOTAL
40,000 Industrial Steel 38,440 Oil and Gas 48.875 Other. $531,885
The investments classified as “Oil and Gas” total $311,410 or 58.548% of the account. (This is the same figure that appears in Tab 62 for the Oil and Gas sector for June 30, 2007.)

¶ 52 We conclude that the margin account was heavily invested in the oil and gas sector. This concentration was unsuitable for Mr. and Mrs. W.

¶ 53 We also find that the portfolio of the two RRSP accounts and the LRSP account did not meet the investment objectives of Mr. & Mrs. W.
(2) Margin Account

¶ 54 The Respondent recommended that Mr. & Mrs. W set up a margin account to facilitate the purchase of securities. In addition, he recommended that they mortgage their home so that additional funds could be invested. We have concluded that the use of borrowed funds was not suitable given the investment objectives of the clients. The use of borrowed funds could only be a successful investment strategy if the rate of return on the investments was greater than the borrowing costs. This would require investments with a greater risk than the original KYC statement set out.
(3) KYC Statement

¶ 55 We also conclude that the portfolio was often out of line with the KYC statement. As noted previously, when a compliance officer with Canaccord contacted the Respondent about the discrepancy, the Respondent’s solution to the problem was to obtain a revised KYC Statement to reflect the portfolio rather than bring the portfolio in line with the KYC statement. The KYC Statement appears to have played little or no role in the selection of investments.
(4) Example of an Inappropriate Investment

¶ 56 An example of an investment out of line with the needs of Mr. & Mrs. W., we note the purchase of 2500 units in Mavrix Explore 2006 – 1 FT Limited Partnership at a total price of $25,000. The prospectus (Tab 24 page 800 describes the investment as follows:
THIS IS A BLIND POOL OFFERING. The units are speculative in nature as are the securities in which the Available Funds will be invested. An investment in Units should be considered only by those purchasers who can afford a complete loss of their investment. There is no assurance of a return on an investor’s investment...Tax considerations ordinarily make the Units offered under this prospectus most suitable for investors whose income is subject to the highest marginal rate of tax ...

¶ 57
investment for Mr. & Mrs. W.
Mr. & Mrs. W were not in the highest marginal tax bracket. In our opinion, Mavrix was not a suitable
ALLEGATION OF DISCRETIONARY TRADING

¶ 58 IIROC alleges that between 2005 and 2009 the Respondent made discretionary trades in the accounts of two clients (Mr. & Mrs. W) without first having the accounts approved and accepted as discretionary accounts, contrary to IIROC Dealer Member Rule 1300.4 (IDA Regulation 1300.4 prior to June 1, 2008).

¶ 59 At paragraph 45 of the Post Hearing Submissions of the Respondent it is stated:
The Respondent concedes that there were isolated occasions of some degree of discretion exercised by him, but not the rampant or habitual non-communication alleged in the allegation. “Less than five percent.”
Re Brodie 2013 IIROC 12 Page 8 of 9

¶ 60 The testimony of Mr. W and that of the Respondent is conflicting on the degree of consultation before a trade in the account was made. Mr. W. testified that after a few months upon opening the account that he seldom heard from the Respondent. The Respondent, on the other hand, testified that he almost always contacted Mr. W. No written notes, emails, records of meetings, or other such documentation was presented to the panel to substantiate either position.

¶ 61 We accept the concession that there was a breach of the Rule. The allegation makes no mention of “rampant or habitual non-communication.” We are unable to determine from the evidence the exact extent of the breach but we find any breach, even “less than five percent” to be significant..
ALLEGATION OF INAPPROPRIATE COMPENSATION

¶ 62 IIROC alleges that between May 2008 and June 2009, the Respondent personally compensated two clients (Mr. & Mrs. W) for losses in their accounts without the knowledge or approval of his Member firm, contrary to IIROC Dealer Member Rule 29.1 (IDA By-Law 29.1 prior to June 1. 2008.

¶63 The details of the compensation are set out at paragraphs 32 – 34 of these reasons.

¶64 At paragraph 48 of the Post –Hearing Submissions of the Respondent the allegation is admitted.
PENALTIES

¶65 Penalties will be determined after counsel have had an opportunity to speak to them.
DATED this 22nd day of March, 2013. Richard Bird, Q.C. Chair
Bruce Walker, Member
John Chappell, Member
Copyright © 2013 Investment Industry Regulatory Organization of Canada. All Rights Reserved.
Re Brodie 2013 IIROC 12
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https://docs.google.com/file/d/0BzE_LMP ... sp=sharing

or http://docs.iiroc.ca/DisplayDocument.as ... anguage=en

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this related post is "essential" reading for those expecting to get their money back. It provides tremendous background to the misrepresentation, misconduct and malpractice arguments which are needed to fully compensate investor victims:

viewtopic.php?f=1&t=187&p=3619#p3619

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As it pertains to ―financial advisors, the Securities Acts contain provisions regarding the registration of persons acting as ―advisors‖. By virtue of their membership in the Canadian Securities Administrators, all provinces are provided with ―National Instruments‖, which represent an attempt to ensure similarity across all Canadian Securities legislation. In accordance with the National Instruments and by agreement amongst the provinces, all Securities Acts provide that an ―advisor must be registered with the provincial securities regulator.

The standard wording located in the Securities Acts provides: Persons who must be registered
A person must not
(a) trade in a security;
(b) act as an adviser;
(c) act as an investment fund manager; or (d) act as an underwriter;
unless the person is registered ...1[with the relevant provincial securities regulator]

In Ontario, the Securities Act provides:
25(3) Unless a person or company is exempt under Ontario securities law from the requirement to comply with this subsection, the person or company shall not engage in the business of, or hold himself, herself or itself out as engaging in the business of, advising anyone with respect to investing in, buying or selling securities unless the person or company,
(a) is registered in accordance with Ontario securities law as an adviser;
(b) is a representative registered in accordance with Ontario securities law as an advising representative of a registered adviser and is acting on behalf of the registered adviser2
1 Section 6(1) The Securities Act, C.C.S.M. c. S50, Section 86 Securities Act, S.N.W.T, 2008, c.10, Section 31 Securities Act, R.S.N.S, 1989, c. 418, Section 86 Securities Act, R.S.P.E.I. 2008, Cap. S-3.1, Section 148 Securities Act, R.S.Q. c. V-1.1
2 Section 25(3) Securities Act, R.S.O. 1990, c.S.5,
© Dolden Wallace Folick LLP 6

http://www.dolden.com/content/files/129 ... y-2011.pdf

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By ROBERT POWELL

Let's say you have a health problem and you visit two or three internists. Chances are good you would receive a similar diagnosis and treatment from each doctor.

But let's say you take a financial problem, or your retirement goals, to two or three financial advisers. New studies show that you're unlikely to get the same, or even similar, recommendations about what investment products to buy or what strategy to pursue. And that could make a big difference in your financial future.

According to a recent report from Cogent Research LLC, a market-research firm in Cambridge, Mass., retirement-savings recommendations vary greatly based on the type of firm for which a financial adviser works.

What They Prefer
For instance, registered investment advisers, or RIAs, who own their own firms lean toward using the products offered by mutual-fund companies, Cogent says. By contrast, advisers who are affiliated with independent broker-dealers often suggest insurance products like annuities of one flavor or another, the report says, while advisers who work for the big national brokerage firms tend to suggest both insurance products and a mix of other investments but mostly stocks and bonds.

Meanwhile, a report from GDC Research in Sherborn, Mass., and Practical Perspectives in North Andover, Mass., says advisers in different channels use not only different products but also different strategies to generate retirement income for their clients.
**
Some use the same investment strategy for both building and tapping a nest egg. For instance, they will adjust the mix of stocks, bonds and other assets in a portfolio as the client approaches and enters retirement, but they won't introduce a new asset class in retirement. Others will make bigger adjustments, putting some assets needed for short-term expenses in safe investments like money-market accounts while leaving assets for long-term expenses in riskier investments like stocks. And some like to buy annuities to generate a steady income to cover essential costs or a desired standard of living.

The findings of the two studies illustrate the need for older investors to exercise caution when searching for a retirement-focused adviser, and to consider interviewing professionals from at least three different types of firms—an RIA, an adviser affiliated with an independent broker-dealer, and perhaps an adviser with a national brokerage firm***—before selecting one.


At a minimum, ****experts suggest asking potential advisers how they are compensated, because that can affect their approach. For instance, some advisers might not recommend annuity products as part of a retirement-income plan, even if it might be appropriate, because they aren't licensed to sell such products and thus don't earn a commission on them. Other advisers, meanwhile, might not recommend mutual funds because the compensation they receive for selling an annuity is greater.

Experts also suggest asking potential advisers for samples or actual retirement-income plans for clients whose financial profiles and goals are similar to yours. That's because what works for one person might not work for someone with different resources, assets and lifestyle. For instance, retirees who have sufficient assets and resources to fund 30-plus years of retirement can use what's called a systematic withdrawal approach—taking a certain percentage of your money out of your nest egg annually—to produce retirement income while investing the portfolio largely in dividend-paying stocks or mutual funds. But retirees with few resources might need a different strategy and products, such as immediate annuities.

Find a Specialist
Experts also emphasize that retirement-income plans and retirement-savings plans are very different things. The latter tend to invest, diversify and wait—which is fine if you are 20 or 30 years from retiring. The former, ideally, will assemble a group of investments that produce both steady income and long-term growth.

"I would suggest that those either in or approaching retirement seek an adviser who has a strong commitment and focus on retirement-income planning," says Meredith Lloyd Rice, a Cogent Research senior project director.

Mr. Powell is the editor of Retirement Weekly and a columnist at MarketWatch.com. He can be reached at encore@wsj.com.

A version of this article appeared May 20, 2013, on page R3 in the U.S. edition of The Wall Street Journal, with the headline: How a Pick for a Financial Adviser Can Go Wrong.

http://online.wsj.com/article/SB1000142 ... nalfinance

advocate comments: ** "advisers in different channels use not only different products but also different strategies to generate retirement income for their clients" (My advice is to read the above line like this: advisers in different channels use not only different products but also different strategies to generate COMMISSIONS FROM their clients. It may not hold true in every case, but it will protect the uninformed customer to think like this.

*** "professionals from at least three different types of firms—an RIA, an adviser affiliated with an independent broker-dealer, and perhaps an adviser with a national brokerage firm" (advocate comments, if the "profession" cannot yet be honest about what each category of license entails, and simply refuses to "out" the 99% commission salespersons involved in the so called "advice" game, the public will forever be subject to hidden financial misconduct and malpractice by the industry)


**** "experts suggest asking potential advisers how they are compensated" (advocate comments. As an ex-broker of 20 plus years experience, I find that asking does not always give an honest answer from a less than honest "advisor". Educating oneself about the differences between a licensed "advisor" and a commission seller is of greater worth

view this video http://youtu.be/KH6XMXlfdBw

and view FRONTLINE, THE RETIREMENT GAMBLE (final 13 minutes speaks to this topic directly) at bps.org

[admin]

I was just reading something on the real estate sales industry and how the lister of a home for sale owes a fiduciary duty to the seller of the home that he listed.

It got me to thinking of parallels to the investment industry, and they are somewhat disappointing by comparison

First is the fact that the average "person claiming to be an advisor":

a) does not have to possess the advisor license and

b) does not have to give advice that is in the client's best interest (they can claim to be your "advisor" and then get away with giving poor advice, or advice which serves their interests ahead of yours

Second is the concept of "dual agency". Your realtor (or lawyer in a real estate deal) has extensive disclosure to make if they wish to act for both parties. On the other hand, your broker, (who is misrepresenting himself as your "advisor") can act first for his firm and/of on behalf of the sell side of any transaction (by pushing a new issue or high cost fund for example) and at the same time also get away with claiming to act for the client.

Combining all the tricks together allows you to be:

a) led into the belief that your broker is acting on your behalf

b) without being informed that he may be doing the exact opposite for a greater commission

c) without being warned about second (or third) levels of possible remuneration paid to them (like trailing commissions)

d) then dumped as a client of that broker, as he retires and collects another payment through the "sale" of his book of clients and future revenue streams resulting from his careful, self serving manipulation of client assets

e) all of this harm done by persons posing as professionals in a position of utmost integrity and trust

f) all of this harm done under the careful watch and support of professional investment firms posing as professionals in a position of utmost integrity and trust

g) all of this harm done under the careful watch and willful blindness of investment industry "self" regulators posing as professionals in a position of utmost integrity and trust

h) all of this harm done under the careful watch and willful blindness of 13 provincial Securities Commissions posing as professionals in a position of utmost integrity and trust…

Isn't the financial game as played today just great?

[admin]

IIROC File # 0467/Jun/11- IRROC Title Designation Regulations
To: Susan Farrell IIROC

Dear Ms Farrell, I am now out of the hospital and recuperating, although in some discomfort to get too active at the moment.

On April 30th, we had brought up two newly discovered issues which we had previously not made as part of our original complaint to IIROC. Those issues were -

1. The misleading titles used by the XXXXX Representatives when soliciting our business. In the case of both XXXXX Representatives, they presented themselves as "Investment Advisors". These titles were on their business cards and as they signed Proposals. The connotation being that we could trust them to be giving us "advice" that would be in our best interest.

However, both our XXXXX Representatives were only registered and designated as a "Sales Representatives" or "Registered Representatives", when they influenced our investment decisions between 2004 through to September 2009. In other words the IIROC and OSC classified these individuals as "sales" persons who were out to sell investment products, whereas the investor is left with the impression that it is "Advice" he or she is getting, and the purchase of investments comes after due diligence "Advice" by the XXXXX Representatives.

On this basis, we ask IIROC to pass judgment on this use of misleading titles in order for the Investment Dealer and its Representative to gain the trust of the unsuspecting and unsophisticated investor.

2. False investment performance claims used in sales promotional material by the XXXXX "Investment Advisor Representative" in order to convince the investor to invest in XXXXX Mutual Funds. Please refer to the details included in the attached Complaint filed with the OSC in this connection. We are only asking IIROC to look at the XXXXX and the XXXXX Representatives participation in this false and misleading promotional advertising.

Kindly let us know as to whether or not you will be dealing with these two additional levels of complaint.

Regards
Peter W

(advocate prediction: IIROC is going to choke on this one. They will dismiss, deflect, defer, delay and deny, but they will not act to protect Canadians from intentional license misrepresentation)

Forgive the image from a US Senator, but her words say it all about Canadian investment "self" regulators as well.

please view this video for further: http://youtu.be/KH6XMXlfdBw

[admin]

Click to enlarge

In the spirit of abused financial and investment customers getting their money back from professional abuse, this blog writer, has one of the best writings on the concept. Sadly, the list of signs of abuse, show nearly ten areas that are "standard industry practice" for most investment sellers.

I hope it will be used by those investors who are motivated enough to fight the good fight and get compensated for abuses. I am seeing it happen for those who are willing to stand and demand, and those who do this outside of the 'self" regulatory environments or other industry sponsored dispute resolution schemes. (they are a topic of abuse unto their themselves, sometimes)

This person (Andrew Teasdale, Toronto) has one of the best web sites to follow about matters financial, best industry practices etc. I highly recommend it.
http://moneymanagedproperly.com/new_fol ... 0abuse.htm




Is the client given the opportunity and the means to understand and assess whether the recommendations and rationale are indeed acceptable?

Is the recommendation appropriate to the client’s risk preference? Are all risks likely to affect the client being properly assessed? Is the client being educated or is just their current level of knowledge being documented?

Are all costs and charges and remuneration associated with the investment clearly and properly disclosed? Is the advisor justifying their fees given the work involved

Has the most cost effective option been taken given the nature of the recommendation?

Is the client receiving clear and easily justified value from their wealth management and the consideration in fees and costs they are paying and is this justification part of the longer term relationship?

What the above means is that in order to clearly and effectively ensure that advice is appropriate to the client, the advisor must have a clear process that not only relates portfolio structure to financial needs to protect against both short and long term financial risks but must clearly explain how they work, how the portfolio manages these risks and meets the clients needs and the client needs to have access to a level of communication and education that will allow them to understand and assess what is being recommended and why it is being recommended.

All this requires greater communication, better education, higher standards of risk assessment, comprehensive reporting, justification of portfolio construction, planning and management and accountability of performance and costs.

All of the above requirements are way above the minimum standards policed by Ontario’s main regulatory and self regulatory bodies; the Ontario Securities Commission, the Independent Dealers Association (IDA) and the Mutual Fund Dealers Association (MFDA).

If standards are not raised, endemic financial abuse will continue.

At present, all an advisor is required to know by law are basic minimum standards of information about the client, which are recorded in the “know your client” form. The information recorded on this form is actually insufficient to perform a thorough analysis of the client’s financial needs and risk preferences, let alone a full assessment of the client’s existing asset position. Importantly there is no obligation to give the client a copy of this document. There is in fact no regulation which states that any document justifying recommendations be sent to the client.

Additionally, apart from a basic valuation of investments and statements of transactions, there is no other requirement to report performance, nor to even measure whether their performance has been good, bad or indifferent.

Worse still, many investors do not know how much they are being charged and many expenses, commissions and costs paid by the client do not need to be disclosed to the client.

If the above three factors are not conditions which perpetuate ignorance, which prevent the investor from finding out whether they are getting value for money and how much they are being charged, then they are conditions which perpetuate financial abuse.

Trailer fees

Trailer fees are annual fees paid by a mutual fund company to an investment advisor for recommending the mutual fund. The investor does not need to be told about this even though the money is paid from the investor’s own funds. Likewise the advisor has no obligation to do anything for the client to earn these fees.

Trailer fees and other referral type fees are an abuse of the client advisor relationship and, unless these fees are disclosed and used to offset valid and identifiable services performed by the advisor, they increase costs and are detrimental to an individual’s financial position.

The greed of the industry has seriously affected the ability of mutual funds to meet the objectives and needs of the individual. Indeed, the benefits of one of the most efficient investment vehicles ever invented have been submerged under the self interests and costs of an industry that has lost sight of its reason for being

Regulation and protection

If you study the rules and regulations of the Ontario Securities Commission and the Independent Dealers Association you will not find a single regulation defining the quality of advice or the parameters in which that advice should be delivered, monitored and reported.

All regulations relate mainly to issuance of securities and the rules and regulations governing their transactions and the rules and regulations governing the sale and purchase of securities for individuals.

Look at all the disciplinary proceedings taken by the IDA against its investment advisors and not one really deals with bad advice. All relate to clear violations of IDA and OSC rules and regulations. This means your advisor will have had to have either run off with your money or traded egregiously on your account without your permission and to your detriment.

Look at the court cases where it is said that common law can look at the wider client/advisor relationship and is not constrained by OSC and IDA rules and regulations to determine restitution. Even here, there are as yet no real cases dealing with bad financial advice. All relate to certain specific securities transactions which clearly transgress the letter and the spirit of existing regulation.

The message for investors

Until advice is actually regulated in some shape or form, financial standards are raised and financial advisors have a real professional body to define the rules and regulations governing the provision of advice and to discipline and punish those who ignore them, you the individual investor will need to be responsible for policing your own financial position.

=========================

Advocate comments:
Seriously. GET YOUR MONEY BACK if you have had one (or one dozen) of the tricks mentioned in the article, played upon your finances. It is abusive and will not be stopped until you demand it be stopped. http://youtu.be/KH6XMXlfdBw

Keywords: Teasdale, tricks, dozen, blog, abuse, human rights

[admin]

Image.jpg (11.45 KiB) Viewed 6931 times

Larry Elford Speaking presentation to GFOA, May 7th, 2013

Finance, Investment Fraud, Ethics, Accountability and Hidden Risks.

References, research, links etc:

Checking license and registration of your “advisor”:
http://www.securities-administrators.ca ... spx?id=850

Consumer alert videos by the speaker:
http://www.youtube.com/user/investoradv ... ature=mhee

“GET YOUR MONEY BACK”, SOLUTIONS AND SELF DEFENSE, and other topics flogg: http://www.investoradvocates.ca

Historical library of financial regulation failures: http://www.investorvoice.ca

Speaker’s bio: http://www.speakersalberta.com/_Elford.html

Documentary film, BREACH OF TRUST, The Unique Violence of White Collar Crime:
http://www.breachoftrust.ca/Welcome.html

Alberta regulatory failures: http://www.albertafraud.com/albertafrau ... lcome.html

Facebook group for investor fraud:
https://www.facebook.com/groups/albertafraud/

Small Investor Protection Association Canada
https://www.facebook.com/groups/240100382792373/

Case law re loss of immunity from MGA protection:
http://www.canlii.org/en/ab/abqb/doc/20 ... qb194.html

Organization WITH fiduciary duty to the client: http://www.portfoliomanagement.org

33-403 - The Standard of Conduct for Advisers and Dealers: Exploring the Appropriateness of Introducing a Statutory Best Interest Duty When Advice is Provided to Retail Clients
http://www.osc.gov.on.ca/en/38075.htm

ASC 2011 Annual report: http://www.albertasecurities.com/news/A ... Report.pdf

Investment Consultant, Expert Witness on Financial Intermediary Practices, Misconduct and Malpractice, Forensic Investment Analysis, Portfolio Construction, Coaching, Contact speaker: lelford@shaw.ca

[admin]

The first half of this very well done documentary is about 401K's the retirement saving plan for most Americans, and the last half, (chapter 5 I think) contains a good bit of info about how investors are intentionally deceived by the industry.

Intentional deceit of the consumer is fraudulent in most cases, and I am heartened to see some of those I talk to are getting their money back. Slowly and with great amount of fight and energy expended to hold the industry to account, but it will get easier with each and every case. It will become common in time, and it will become standard to be compensated when the investment industry lies to consumers for more money.

Watch the video to see how to go about getting your money back (and email me if you need to) Visualinvestigations@shaw.ca

http://www.pbs.org/wgbh/pages/frontline ... nt-gamble/

The second video that will help give you (and your lawyer if you use one) the picture of pursuing intentional deceit, is my own shown here:

http://www.youtube.com/watch?v=KH6XMXlfdBw

and here.......is a summary of how one smart investment victim laid it out for the judge: "The simple failures by the supposed professionals"


#1 Misrepresentation:


The Firm is an Investment Industry Regulatory Organization of Canada (IIROC) registered investment firm.

The Advisor A was licensed as a Salesperson, Dealing Representative (investment Dealer, and Registered Representative (Retail).

The Advisor B was licensed as a Salesperson, Dealing Representative (Investment Dealer), Registered Representative (Retail, Mutual Funds)

The clients had a relationship of TRUST with The Advisor A

The clients had limited investment knowledge

The clients were VULNERABLE

The Firm, Advisor A, Advisor B, The compliance Officer owed The clients a DUTY OF CARE.

The Advisor A, The Advisor B and The Firm advertised themselves as Financial Planning Consultants.

Certified Financial Planners owe clients a fiduciary duty in Canada

The Firm’s Business name includes the word “advisor”.
The Firm promises a standard of care on their website. “Quote.”
IIROC 29.7
Misleading Trade Name
No Dealer Member or Approved Person shall use any business or trade or style name that is deceptive, misleading or likely to deceive or mislead the public.
Prohibition on use of Trade Name
The Corporation may prohibit a Dealer Member or Approved Person from using any business or trade or style name in a manner that is contrary to the provisions of this rule or is objectionable or contrary to the public interest.

Suitability

The Advisor A had a regulatory obligation to provide The clients with suitable advice.

IIROC Regulations

Clients must be dealt with fairly, honestly, and in good faith

Salespersons must conduct a proper suitability assessment

All recommendations must be suitable for the client, not just the product, but order type, trading strategy and method of financing

Suitability analysis starts before the order is received, recommended or executed

An IIROC Salesman or Dealing Representative must know the product risks and characteristics

IIROC salespersons have the obligation to disclose known or discoverable risks to the investor before entering into any transaction

An unsuitable investment or recommendation is inconsistent with the client’s personal circumstances including financial situation, investment knowledge, investment objectives time horizon, risk tolerance and the current investment portfolio composition and risk level of the other investments within the client’s account or accounts at the time of the investment and/or recommendation.

The discovery of an unsuitable investment involves an obligation to take appropriate action. Client should receive appropriate advice. This should be documented and Compliance Department should be consulted.

If a client insists on an unsuitable investment, they must be advised against proceeding with the order. The firm should document this. The KYC document should not be changed to create the appearance of a suitable order.

Suitability analysis should be performed when investments are purchased, change in Dealer or change in Client’s life circumstances

(Supporting data from BC Securities Commission:

Section 34 of the Act:

Persons who must be registered
34  A person must not
(a) trade in a security or exchange contract,
(b) act as an adviser,
(c) act as an investment fund manager, or
(d) act as an underwriter,
unless the person is registered in accordance with the regulations and in the category prescribed for the purpose of the activity.
link 1
http://www.bcsc.bc.ca/securitieslaw.aspx

(breaking the law is standard daily industry practice. Getting your money back is entirely up to you (no authorities will act) to accomplish.)

[admin]

OBSI name and shame
Posted on April 3, 2013
A few points re: CONNOR FINANCIAL REFUSES OBSI COMPENSATION RECOMMENDATIONS

This is much more than an advisor providing unsuitable advice: regulation, distribution culture, advisor skill sets and much more lie at the heart of these 3 cases.


Number 1, is obvious: just by reading the Connor Financial name and shame cases, it should be clear how current regulation facilitates disorganised sales led service processes. Better organisation and structure that would be found in a best interests standards/fiduciary duty paradigm may well have obviated the unnecessary outcomes noted.

Number 2: note how much time is spent in the reports trying to prove the client’s knowledge or lack thereof and then compare this against the anarchy of the recommendations. It would be far better if advisors were forced to provide structured, accountable, well thought out processes capable of delivering disciplined and appropriate financial solutions.

Number 3: the KYC form, where the client selects %s in various risk compartments, is not helpful in relating the risk of the recommended investments to the risks they pose to the ability of their assets to meet financial needs over time. Risk allocation is dependent on a number of factors: investment discipline; size and timing of financial needs and inflows to the portfolio; relative and absolute valuation and methodology for dealing with such as well as client risk aversion and risk preferences. In fact, you cannot determine what the allocation of a portfolio should be without first going through an optimisation of all the relevant factors determining structure. Investors need to be warned that the risk profile of the standard KYC is for sales profiling, more helpful to the advisor than the client and wholly inappropriate for solving complex financial needs.

Number 4: it is clear from the reports that the advisor is attempting to provide a higher level of sophistication than he is capable of delivering. This is a generic regulatory issue. To a large extent the blame and the liability for the outcome should rest with regulators and legislators for allowing a low standard, transaction based regulatory regime to continue for as long as it has.

Number 5: the clients noted in these 3 cases have needs that depend on strategies and allocations that can safely manage capital depletion over time. It should be clear that this is a fairly complex area (not even OBSI were able to provide the necessary modelling and analysis) and one which current skill sets, suitability processes and regulation are largely incapable of helping deliver.

Regulation, distribution culture, advisor skill sets and much more lie at the heart of these 3 cases.

This entry was posted in Best Interests, Investing, OBSI, Regulation by Depthdynamics. Bookmark the permalink.

http://blog.moneymanagedproperly.com/?p ... omment-736

(investor advocate comment below:)

Andrew, thanks for the insightful information. I will add a thought or two from my perspective in case it helps anyone. While testifying in court in BC lately, in matters between an elderly (born 1920ish) investment client and an investment firm I noticed the extensive use of a new industry trick that had not occurred to me before. The trick looked like this in court:
1. A commission salesperson is dressed up by the industry in the cloak of some kind of professional “advisor”, despite rules, laws, codes of conduct and promises to the contrary.
2. When trusting and vulnerable clients then sit down with said “professional” they are thus inclined to accept the information told to them by this person as being fair, honest and in good faith in their best interests, when in fact this may no longer be true, nor eve be an industry requirement, (see http://www.osc.gov.on.ca/en/38075.htm )
3. When the KYC (Know your client form) is to be filled out, and clients do not understand how, (risk, quality, short, medium, long term horizon) since they are not often experts themselves, who do they turn to to “walk” them through the form. Of course it is the commission salesperson who was posing as the professional in # 1.
4. The commission salesperson knows the “future” so to speak, as far as which products he or she would prefer to sell to the investor, and uses this advance knowledge to “help” the client to fill in the form a manner helpful to the seller.
5. The client usually asks a few questions, which are answered by the salesperson, and then the client nods in agreement, just as they would if they were receiving advice from another professional, say a doctor, about medical matters.
(the trick, of course is in how the industry disguises commission sellers as something else to mislead the public into a false sense of trust)
6. When all is said and done, and the client is sitting in court with the investment seller, “$10,000 “experts” in $4,000 suits” (quote by a courtroom observer) tell the court that the KYC is the most “crucial” document to outline the relationship, and the court believes this to be true.
7. This ignores two facts, one being that KYC is a “process” of knowing your client and NOT a simple document. (see videos (Ellen Bessner) and comments March 14th to March 17th, 2013 here http://www.osc.gov.on.ca/en/38075.htm )

Two is that it ignores that the KYC document being paraded in front of the judge by the investment firm, is a document most often “coached” into existence by the very person who might be the defendant in the case. In other words, the document that the commission salesperson “helped” the elderly victim to fill out, suggesting a certain asset mix, a certain risk tolerance etc…..just like your doctor might do with a program of treatment, this mix is most often suggested to the uninformed client as the “best” way to go.

What is NOT disclosed to the uninformed client is that the “advisor” is not like a doctor, has neither the license nor the oath to “do no harm” to the client ( http://www.securities-administrators.ca ... spx?id=850 ) and may in fact be incentivized to act against the clients best interests for greater commission.

Secondly these and the fact that the document being used AGAINST the client in court, was usually “coached” into being created and signed by the client by an “advisor/salesperson bait and switch”. The document is highly insufficient and suspect in being the “go to” document, as the industry claimed in this court case, and in fact might be the fruit of a poisoned tree, if filled out with the “help” of the defendant as I saw in my case.

[admin]

Has the broker met the suitability requirements?
Notes, research, analyst reports, management interview, what has your "advisor" done prior to telling you to buy a particular investment.
What documented process has your salesperson followed? None? If so, get your money back.
Short video touches on the topic.

http://www.clientinsights.ca/en/librari ... 1C0EB97CCC

[admin]

http://www.advisor.ca/images/other/aer/ ... leplay.pdf

senior compliance officer writes about how investment sellers play games with their titles to help fool clients

porado

[admin]

improve Know Your Client (KYC) forms. “If you think having a client choose from three to five risk categories without creating a common language of what that means is acceptable, then you’re kidding yourself,” Geller says.

(May 19, 2005) Are you taking notes? You need to be if you want to fend off lawsuits from clients looking to claim you sold products that didn’t suit their circumstances, says Harold Geller, a partner at Milton, Geller in Ottawa.

“Professionals are easy to sue,” he said at the conference. “How can you know every mutual fund? You can’t. But the courts say you have to.”

He says advisors need to come to grips with the fact that clients’ memories will often outstrip their own. An advisor has multiple meetings in the course of a day. But the client likely only had one, and will better remember details because he or she was making decisions about how to invest significant sums of money.

At another Peel session, Gowlings lawyer Ellen Bessner noted the problem is exacerbated by the fact most advisors aren’t paid by the hour. They make money if a client decides to invest, so there’s an innate desire to move on from conversations that aren’t producing. “That doesn’t work in this environment,” she warns. “You need to take the time to explain things in a way the client understands. And then you need proof of what you said, and what they said to you.”

If a slide presentation was made, that needs to be mentioned. The date and time of the meeting, and who attended, should appear in notes kept in the client’s file. “The client remembers these things,” says Geller. “They’ll remember the weather. They’ll remember if they signed blank forms.”

It’s not good enough for an advisor to jot down five things that were said during a two-hour conversation. The goal should be to create a fact file thorough enough to make a lawyer reluctant to take a client’s case on contingency. Bessner says most clients don’t take notes, so it falls to the advisor to create records. “The rogue client is not seen as a rogue client until we unveil that,” she says. “You do that by having documentary evidence. If they have no records, and you do, you’re better off.”

In the aftermath of the Portus debacle, Geller reminds firms of their duty to both advise and dissuade clients. Products like universal life and hedge funds are highly complex and it’s up to advisors to understand what they’re selling so clients can make informed decisions. “Put the risks before them,” he says. “Clients can only take risks if they understand them.”

One way to make it tougher for clients to sue is to improve Know Your Client (KYC) forms. “If you think having a client choose from three to five risk categories without creating a common language of what that means is acceptable, then you’re kidding yourself,” Geller says.

Instead, he suggests looking at templates offered by Advocis and other membership organizations. What do these forms have in common? Generally, they’re longer and ask questions that can’t be answered with a simple yes or no. They require a dialogue and get the client to talk about things like cash flow, and the financial needs of other generations.

Related News Stories

Advocis Conference Update: Get organized to avoid legal claims
When an advisor completes an analysis, Geller says, it needs to be sent to the client with a request to have the facts confirmed. Any corrections must show in the file. Further, if you suggest a particular type of insurance coverage and the client refuses, have him sign off. When going through a contract, have the client initial every page to indicate it’s been read. Highlight key terms, and have the client initial those too.

“It’s a common-sense process,” says Geller. “It’s also a sales opportunity, because if you look professional, then your client has more respect for you.”

Filed by Philip Porado, Advisor’s Edge, philip.porado@advisor.rogers.com

(05/19/05)



http://www.advisor.ca/news/industry-new ... erts-32399

[admin]

If there is no paper, we can only hope (or pray) that the judge finds the complaining client’s version of events completely lacking in plausibility and credibility. Only in those circumstances will the advisor be relieved from culpability.

(October 27,2003) When you visit your doctor, accountant or lawyer, you see that they take notes during your meeting, which are stored in a file with your name on it. Financial planners and advisors — in fact, any financial professional — must diligently maintain files that reflect communication with clients, from the first contact through all subsequent meetings and telephone conversations. The files, whether paper or electronic, must be maintained in a chronological and organized fashion.

When training advisors, I explain what they must do and how they can incorporate these practices into their daily routine. The most important element, however, is explaining why they should maintain written records. If they don’t learn to value the exercise, they will never engage in it.

The purpose of this article is to review the importance of maintaining a paper or electronic trail and to outline how you should prepare your trail to be most beneficial to you.

Why bother to maintain a trail?

The paper or electronic trail was developed long ago by professionals to protect themselves. When your doctor sees hundreds of patients and sees you only once a year, how can he possibly remember your history? How would you judge your doctor if he didn’t take any notes and ended up prescribing a drug for you that you previously told him you were allergic to? You would likely conclude that the doctor doesn’t know how to perform his job competently and responsibly. And you would be right.

How can a doctor perform his job properly if he doesn’t take notes? If you did take the prescribed drug and had a bad reaction, the doctor would defend himself at the College of Physicians & Surgeons, asserting that you never told him about your allergy. Of course you would have a clear recollection of telling him because it’s an issue that you are concerned about and your evidence would be that you always tell doctors about this allergy on your first visit. If your doctor doesn’t have any notes from his first meeting with you, he would not be in a position to remember or challenge your evidence.

Furthermore, any third party judging your evidence would likely give you the benefit of the doubt. Why? Because it is the obligation of the professional to have a system in place whereby information imparted to him by the client is recorded for future use. And since the doctor sees several hundred (if not thousands) of patients each year and you only see a few doctors (hopefully just one or two a year), it is likely that your recollection of the meeting is clearer than the doctor’s.

The lesson for you

I’m sure that you get the picture — in the context of an advisor-client relationship, the same holds true. You, the professional, are expected to maintain notes so that you can protect yourself from clients who assert that they told you one thing and you did something else. If you took notes during the meetings that reflect concerns or instructions the client imparted to you, then you will have proof. This will support your version of events and will likely convince a judge that your version is more accurate than your client’s, which is dependent on memory alone, as few clients take notes during meetings with their advisors.

In my job, I defend advisors against regulators or clients. When I meet an advisor for the first time, I hope that he has a trail that proves at the very least he was diligent and at the most, his version is recorded in notes, letters, memos, etc. If there is no paper, we can only hope (or pray) that the judge finds the complaining client’s version of events completely lacking in plausibility and credibility. Only in those circumstances will the advisor be relieved from culpability.

Many advisors have challenged me on this issue — they say this cannot be true because we live in a country that is supposed to assume a person is innocent unless proven guilty. I explain that in civil law, when clients sue their professional advisors, although the onus is on the client to prove his case, he can simply tell his story to a judge. It is then the advisor’s turn to prove that the client’s testimony is untrue through his own testimony and hopefully, with supporting documentation.

Solid paper or electronic records can sometimes even spare you from having to appear in front of a judge at all. If you have records of meetings or telephone calls with the client who is complaining, I can call opposing counsel early in the proceedings to convince him that his client has no case. This might end the litigation. If, however, you don’t have any paper, then your chequebook is the only thing that can settle the matter.

Now that you are (hopefully) convinced that a paper or electronic trail is absolutely necessary, here are some tips on preparing your trail:

How to paper your file?

If you follow the four “Cs” of proper record keeping, your files will protect you through good times and bad. The four “Cs” are:

Correct
Complete
Contemporaneous
Current
It is easy to say that record keeping must be accurate, but that means that everyone on your team must work together with systems that ensure the information in the file is correct. For the information to be correct, it must also be complete and current. If the information is incomplete or outdated, this could have an effect on the suitability of — among other things — your investment recommendations.

Recently, the Financial Planners Standards Council (FPSC) proposed practice standards that incorporate certain record keeping elements. Instead of a standard know-your-client form, the FPSC describes in more precise terms the information required to formulate a plan for any client. Such a plan is set out in a written financial planning report.

The FPSC also intends to introduce the concept of an engagement letter to formalize the mandate of the CFP. Such a letter must be complete and correct and must be updated if any element in the plan is affected by any client change. The FPSC draft practice standards compel CFPs to update the engagement letter every year.

If an advisor keeps written records, including notes from all telephone conversations and meetings, and sends letters to the client from time to time confirming his mandate and explaining the risks associated with any investment recommended, the advisor will be in a better position to defend himself when the regulator or client comes a-knocking.

• • •

Ellen J. Bessner is a partner at the law firm Gowling, Lafleur, Henderson, LLP with expertise in defending advisors and branch managers against their clients and regulators and offers compliance training to both advisors and branch managers for CE credits. For more information, please click here.

http://www.advisor.ca/my-practice/the-w ... trail-2336

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http://www.casselsbrock.com/files/file/ ... lesKit.pdf

I believe that investment customers who have lost money from someone who called themselves an "advisor" of some kind, should familiarize themselves with this book. It would also be of help if you had an open minded lawyer (or one willing) who would dedicate an hour or two to learning what this book contains. The author is a securities industry lawyer, and is most often seen offering her services to the financial industry, to help get them out of trouble. For this reason, her book can be considered objective and not simple repetition of industry platitudes. Some platitudes (like a strong emphasis on use of the word "advisor" for non-advisor-licensed persons)** are to be expected, but overall the book should be considered useful for victims of professional misconduct or malpractice. ** http://youtu.be/qqLhMw3y9bI

After sitting in court, listening to lawyers and industry-paid "experts" pontificate on how the Know Your Client (KYC) document is the "cornerstone" of the entire financial relationship, I was horrified at how far the law can be utilized as a tool to prevent justice (or truth) from appearing in its rooms.

This book goes beyond the very "minimal" and quite useless (salesperson biased) information usually inputted onto the KYC form. If any so-called expert refers to the KYC as the crucial reference document, it is a good sign they are not well informed. Get the book, study what KYC truly means. KYC is not a simple easy to fill out form. But your investment person who called himself an "advisor" and how helped you to fill out the KYC form will probably use this against you in court. Amazing to see people promising to help serve the public, who "coach"m "guide" or "advise", them through the KYC form, and then use this "coached" form as a tool to use against the client in court. Duped from day one and never even saw it coming. (unless your "advisor" revealed his or her true license category (and compensation bias) to you, (in writing), you were a victim of simple sleight of hand before you even got started into the relationship)

I won't beat it to death, but as one courtroom observer discussed in the hallway outside: "it is like going to someone who called themselves a DOCTOR, for oncology treatments, knodding your head and accepting this DOCTOR's advice about what to do, then learning years later that they may not even have possessed the license required to call themselves a doctor, plus their "advice" was heavily biased towards only drugs or treatments or practices for which he was heavily incentivized.........oops!