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Misconduct and malpractice. Investment industry "best and worst practices". Information to improve public protection. Expert witness services for industry and investors. Forensic investment analysis. • View topic - GET YOUR MONEY BACK!


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Postby admin » Wed Aug 29, 2012 9:30 am

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Great six minute video interview of a former OSC Chairperson, talking about fiduciary duties, advisor misrepresentation, tricks built into the law, and what should be done to deal fairly with Canadians.

Well worth watching for those who wish a better understanding of the law (she is a lawyer), the problem, the loopholes, and the solutions by someone who truly knows.

The only problem involved is in getting around the billions of dollars made in profits to investment firms who prefer the status quo.

Please share the video widely with those you care about.

"every one percent in fees you pay on your investments will cut 20% off the future value of your investment......" Fantastic info for investors.
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Postby admin » Sat Jul 28, 2012 6:50 pm

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Further to the topic of "suitability" as the rule applies to the investment recommendations made to you by your salesperson:

http://www.iiroc.ca/Documents/2012/d21b ... de1_en.pdf

IIROC notice #12-0109
Dated March 26, 2012

At this link is the IIROC (Investment dealers self regulatory assn) definitions of suitability and this definition (and a few others, including common sense definitions) should be used to help get your money back from malpractice by your financial seller.

I will highlight the items in red that suggest areas where clients are usually misled, misrepresented, or misinformed. In addition, will be some areas that the industry regularly fails to live up to their own rules and are of great use in getting your money back. (I point out that getting your money back does NOT usually include going into the industry Kangaroo court process, or the industry-hired, private banking ombudsmen, these too, appear to be captured and privatized now. These steps require you to appear in front of an impartial non-industry court. Good luck to you.

Select quotes from the IIROC page as follows: (July 28, 2012, do not be surprised if IIROC changes the wording after they realize how it can be used to help the public get their money back)

Dealer Members and Registered Representatives are reminded that compliance with the suitability requirements is fundamental to compliance with general business conduct standards and is essential to good business practice.

The suitability requirement is also complementary to the fundamental obligation under securities legislation for all Dealer Members and their representatives to deal fairly, honestly and in good faith with clients.

The fundamental obligation includes a duty to disclose known or discoverable risks to the investor before entering into any transaction.

From page four
Know your client information items to be collected and assessed
Under the current rules, there are several questions that Registered Representatives must ask their clients in order to satisfy their “know your client” obligation and equip themselves to conduct a proper suitability assessment.

Other factors, such a client’s risk tolerance and investment objectives may, however require further discussion and assessment. Registered Representatives are reminded that the client’s investment objectives and risk tolerance are two separate but related factors; each factor must be assessed based on the client’s financial and personal circumstances and must be reasonable in light of those circumstances. The reasonableness of such information should be reviewed by the Registered Representative and the Dealer Member during the account opening and account approval process. For example, designating an 80% high risk tolerance for an elderly client may be unreasonable if the client has a modest net worth and has opened the account to invest a substantial portion of her net worth.

As per Dealer Member Rule 1300.1, a client’s current financial situation, investment knowledge, investment objectives and time horizon, risk tolerance and the account’s current investment portfolio composition and risk level must be considered when assessing the suitability of orders and recommendations.

From page five
The regulatory obligation to ensure that orders and recommendations are suitable includes not only an obligation to ensure that the specific investment product is suitable for the client but also that the order type, trading strategy and method of financing the trade recommended and/or adopted are also suitable for the client.

As an example, the risk profile of a client who fully pays for a position in a specific security as a core long term holding is significantly different from the risk profile of a client buying the same security on margin, as part of a day trading strategy.

Dealer Members are also reminded that the suitability analysis starts before the order is even received, recommended or executed. The Dealer Member and Registered Representatives, at the time of account opening, should ensure that the account type (margin, trust, option accounts, etc.) is appropriate for the client given the client’s particular circumstances.
Furthermore, Dealer Members and Registered Representatives need to understand the risks and other characteristics associated with the investment products they approve or recommend for sale.

Product suitability
The suitability assessment obligations include a requirement to know and understand the characteristics and risks associated with any investment product approved or recommended to clients. Dealer Members have the responsibility to assess the risks associated with the products that Dealer Members approve for sale. Registered Representatives should understand, and be able to clearly explain to the client, the reasons that a specific security is appropriate and suitable for the client.

I hope that this information can be used by customers who are subjected to "advisor abuse", the violation of customer interests by a person effectively licensed as a "salesperson" (or the altered term, "dealing representative"), while leading the customer to believe they are something other than they are licensed. Clients that I am aware of are successfully challenging the "doublespeak" used by the industry to get their money back in small claims court, as well as ordinary civil actions. So far, the industry is keeping it another well kept secret, as they tend to do when customers succeed in gaining settlement from them.

I find, that "standard industry practice" includes the sad knowledge that the items in red above, allow for approximately nine ways in which the average Canadian investment client gets abused by the person claiming to be there to help them. It is done in a subtle fashion, it is done with inside tricks that the average customer will never learn, but it appears to be done to the extent of 80% to 90% of transactions done by those people who refer to themselves as an "advisor", whether they have this actual license or not.

I provide numerous examples in other posts on this flogg, and I will also try to find the time to follow up on THIS exact post, to elaborate further and help inform consumers. In the meantime, feel free to browse other flogg topics herein and find out how many ways most "advisors" and their investment firms can abuse you without telling you.

My name is Larry Elford and if I can be of help to you I am happy to try. I am offended by the ease with which the average "advisor" gets to violate the interests (and the returns) of their clients, and I spend my time advocating for "fairness, honesty and good faith" dealing that this industry speaks about..........I simply expect them to be able to deliver on this.
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Postby admin » Sat May 05, 2012 4:33 pm

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In a previous post, a while ago, (GET YOUR MONEY BACK!
by admin » Sat Mar 10, 2012 5:30 pm) I mentioned a case of people who are suing a person who called themselves an investment "advisor", and then screwed the client over by acting out the role of a commission salesperson. A classic "bait and switch" game played a hundred thousand times each day in Canada to help steal the retirements of every Canadian who buys into the scam. (ain't self regulation great?)

Anyway, here is one of the responses giving to these clients, by the investment people who lied and misled: ""If the claimants did suffer any damage, such loss was caused or contributed to by the negligence of the claimants".

At the web site http://investorvoice.ca/Cases/Cases_Index.htm there is no end of such statements in such cases. I refer to it and post my thoughts and responses to such self serving arguments below, in the hopes that some may use them to avoid being similarly lied to , misled, and financially abused.

(my comments to the folks doing the suing, and getting this response........."If the claimants did suffer any damage, such loss was caused or contributed to by the negligence of the claimants".)

funny.......smiling at my end.........not laughing at you..........

This is an attempt to divert attention blame, and distract from the underlying promise...........remember what the promise was......something to the effect of a promise of trust and integrity and investment advice and so on and so on, etc, blah, blah blah

1. If the defendants were willing to lie, misrepresent and operate without proper or actual license for what they posed as.............and if the defendants were willing to earn the trust of the clients posing as trusted professionals, then it is a bit contradictory to now claim that the strategies were in fact the fault of the claimants.

2. I could easier buy this argument, IF they told you up front of their exact license category...........they did not. They hid it instead.

3. I could easier buy this argument IF they told you up front that they were acting as "commission salespersons", and their entire compensation depended upon getting the client to "act" on their advice. They hid it instead.

4. I could easier buy this argument IF they told you up front that they "reserved the right" to give you investment "advice" which was not the best advice they had in their possession, but instead the best which maximized the commission payable to themselves, despite the resulting harm to your investment performance. They hid it instead.

5. I could easier buy this argument if they actually had made every professionally available step to choose the most suitable, most appropriate, AND most advantageous investment choice that was available to them, which they did not, instead choosing the investment choice which paid them the most money. They hid it instead.

6. I could easier buy this argument if they had told you up front of the various differences between a "discretionary" account, and an account that is non discretionary, including informing you of the differing duties of care owed to the client, and the legal outcomes or obligations resulting from knowing these differences. They hid it instead. (they are now using often used investment industry trick to try and weasel their way out of responsibility)

7. They are also trying to magnify the harm done by a borrowing strategy, claiming it was "your idea" of course.......while distracting the case away from their promise of being your "planner" or "advisor", and also distracting away from the many intentional harms they did to you with their choices to maximize their own commissions. (They "fooled" or "duped" you into the false belief they they were professionals at financial advice, and then they took advantage of this false trust to their own advantage, and your disadvantage. Pretty easy stuff from my angle. (my angle being a former CFP, CIM, FCSI, Associate Portfolio Manager, retired) They are now trying to hide this sleight of hand from the judge.

I could go on I suppose, but I will stop there for ease of understanding.

Do not buy the story and do not let it get to you. It is not personal. Do not take it personally. Stand back and smile at the immaturity of fully grown, fully adult looking men, acting like children. What they are doing is again, the verbal equivalent of a two year old child INSISTING that they DID NOT POOP IN THEIR PANTS!! (They hid it instead.:)

Understand it for that. Smile at it. Calmly point out that they were acting and promising a duty of professional care to you.......and you relied totally upon that care and advice. Again. go and re-read the judges comments in the case Markarian v CIBC. http://investorvoice.ca/Cases/Investor/ ... _index.htm

In fact read as many of the cases at this site as you can........and make sure you pass one or two of the better comments to your judge as part of your case materials. That will really piss off your defendants. There are a few really, really great judgements out there that you could use to stand upon.

Re, the comment, ""If the claimants did suffer any damage, caused by any fault of the firm, such loss was caused or contributed to by the negligence of the claimants", I would just ask that they show exactly where you were negligent. Was it when you believed them in any of the points listed 1-6 above? Or was it something else that they had in mind? I look forward to seeing the negligent act you performed......#7?.....

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Postby admin » Sun Mar 11, 2012 11:08 am

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Further to your commission salesperson, or "dealing representative" claims a higher calling of an "advisor", while not holding the proper license nor qualifications as a registered investment advisor:

Dear Mr Elford,

Thank you for your message.

With regards to your questions and comments, you are quite right in that the term "advisor" on its own and used loosely, would be inappropriate for a dealing representative to use without having the educational requirements and experience to be registered as an advising representative.

If you are certain that an individual is holding themselves out inappropriately, please feel free to contact the appropriate securities commission or self regulatory body (Mutual fund Dealers Association or Investment Industry Regulatory Organization of Canada ) through our related links available on our website at: http://www.bcsc.bc.ca our email is inquiries@bcsc.bc.ca We also have a helpful link on our website called Invest-right , which members of the public can use to assist themselves with their investing.

Thank you,

Kent Waterfield
Senior Registration Administrator
Registration & Compliance Branch
Capital Markets Regulation

British Columbia Securities Commission

Phone: 604 899 6694
Fax: 888 242 9341
800 373 6393 (toll free across Canada)

with some related rules, law and tidbits to support the allegation of fraud by investment reps who falsely refer to themselves as "advisors" without being registered as such

As one commentator to the SEC staff's study noted, "If the product sold is that of advice, then that advice should be in the best interest of the client. Anything else is fraud, because the seller is delivering a service different from what the consumer thinks he or she is buying."
Edward Waitzer, Financial Post · Tuesday, Feb. 15, 2011




¶ 263 The defendant attributed to Migirdic fake titles, i.e. "vice-president" and "vice-president and director", in addition to letting him use the title "specialist in retirement investments". Those titles were false representations that misled the plaintiffs, hid reality from them, disinformed them, comforted them in their confidence in Migirdic, reduced their distrust, and contributed to Migirdic's fraud. The defendant committed a fault in terms of its obligation to inform and advise, in addition to misleading the plaintiffs.

¶ 266 In the defendant's operations, the titles are, in fact attributed to many people. In 1995, there were 206 vice-presidents and 44 vice-presidents and directors out of 556 representatives. In 1997, there were 217 vice-presidents and 109 vice-presidents and directors out of 612 representatives. In 1999, there were 197 vice-presidents and 101 vice-presidents and directors out of 725 representatives, the proportions were about the same in 2000. That year, about 300 of the 700 representatives had a title!

¶ 267 The problem is that clients do not know that these titles are simply marketing tools, i.e. a means to convince them that they have an excellent representative, and recognition for the volume of commissions. Clients therefore believe they have a "very special" and "eminently acknowledged" representative when the representative has the title of "vice-president" or "vice-president and director". That was what Mr. Markarian in fact believed, as he testified. Richard Papazian, another witness (and also a victim) thought the same thing. So the titles create a false feeling of trust, comfort and prestige, the role of which is not trivial in the commission of fraud.

¶ 268 The plaintiffs were the victims of these false representations by the defendant in their regard.


A fund salesperson who knowingly sells an expensive
mutual fund to a client whose needs would be satisfied by a less-expensive product
cannot be fulfilling the obligation to act fairly and in good faith that is imposed by OSC
Rule 31-505.
Source: Read this piece by lawyer Phil Anisman
http://opinion.financialpost.com/2011/0 ... ting-rule-


False or misleading representations

52. (1) No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or ... any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.
(this from the Competition Act)


Misrepresentations to public

74.01 (1) A person ... who, for the purpose of promoting, ... the supply or use of a product or ... any business interest, by any means whatever, (a) makes a representation to the public that is false or misleading in a material respect.

False Pretences

361. (1) A false pretense is a representation of a matter of fact either present or past, made by words or otherwise, that is known by the person who makes it to be false and that is made with a fraudulent intent to induce the person to whom it is made to act on it.

362 (1) Every one commits an offense who (a) by a false pretense ... obtains anything in respect of which the offense of theft may be committed or causes it to be delivered to another person; (b) obtains credit by a false pretense or by fraud; (c) knowingly makes ... a false statement in writing ... with respect to the financial condition or means or ability to pay ... (i) the delivery of personal property, (ii) the payment of money, (iii) the making of a loan, ... or credit ... (vi) the making, accepting, discounting or endorsing of a bill of exchange, cheque, draft or promissory note; or (d) knowing that a false statement in writing has been made ..
criminal code

44.(1) No person or company shall represent that he, she or it is registered under this Act unless the representation is true and, when making the representation, the person or company specifies his, her or its category of registration.

Jeffrey Fennell
Senior Inquiries Officer
Ontario Securities Commission

http://www.canlii.org/en/ab/laws/stat/r ... c-s-4.html

Chapter S‑4

"HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

1 In this Act,
(ii) “misrepresentation” means
(i) an untrue statement of a material fact, or
(ii) an omission to state a material fact that is required to be stated, or
(iii) an omission to state a material fact that is necessary to be stated in order for a statement not to be misleading;"

Advocate comments: The basic fundamental misrepresentation that fools most retail investment customers is the "bait and switch" that goes on around the license categories of "advisor" and "salesperson" (pre 2009) or "dealing representative" (post 2009.

The simple version is this: No self respecting investment salesperson wanted to be known as a "salesperson", so in the spirit of self regulation (we do anything we want), the name "advisor" is used by the majority of people who sell investments by commission. Despite the fact that their license category is NOT advisor, and that advisor is a separate, distinct and far advanced category of registration, and despite the fact that advisor lends the public to believe their is some professional duty or obligation to "care" for the interests or to place the interests of the customer ahead of their own personal interests. Not true.

The end result is that the industry is playing a "name game" in order to misrepresent and to fool the public into a state of greater trust and confidence. A "con" game if you will, to get easier and more compliant access to sell the public investment products.

Ask the next person who gives you a business card saying "advisor" on it to show you his or her license, or look it up yourself at the securities commission.

Misrepresentation is subject to a fine of up to $1 million dollars and prison term of up to five years.


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Postby admin » Sat Mar 10, 2012 5:30 pm

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On March 10, 2012, at 4:44 PM, P wrote:

You can't see any rational explanation for the group exposure changing. We did sign their standard risk disclosure. However, we signed a risk disclosure when we invested in a Money Market fund too. He told us it wasn't risky. I don't think that means we FULLY understood by law. We have an email after asking him to explain it again and his answer. I'm just trying to counter all the loop holes.
Thanks for the help.
I believe that one day we'll have to actually meet you Larry. : )

my reply:
Standard risk disclosure should not be relevant if he assured you of contrary info, based on his verbal assurances, and body language and falsely implied duties of professional care............it is like finding out that a doctor told you to "just sign here, it is only a formality, nothing to worry about", while simultaneously telling you that "this is just paperwork", the operation is very safe, "very safe"...........and then.........a year later, you learn that:

a) the man was not licensed as a plastic surgeon (or perhaps even licensed as a doctor?) as he implied

b) he duped you into a level of trust (your head nodding yes, while he "advised" you what to do....... your consumer defences down.....)

c) the truth is that the risks are and were very high and very real, and he told you otherwise, while fooling you into signing his paperwork (veeery bad practice to dupe a signature out of a consumer, while putting them at professional risk.......wouldn't you think)

d) and then you learn that the operation he did on you, and/or the medicine prescribed after, was less effective than other medicines or procedures available, but he chose the one he did based not on what was best for your health, but best for his paycheque...........

e) further, you learned that he could have done this very same (but poor) procedure for less cost, but that he chose the maximum charge available to him to charge you, again to earn a great deal more for himself...........

f) and then you learned that there were other hidden incentives paid to him by other medical suppliers that he is connected with (DSC fees, trailing commissions, free trips, marketing incentives, internal sales contests, "vice president" titles, what else can you think of?)

g) and finally, you learn that the medicine (or treatment) is actually considered professionally to be one of the poorest choices for your health, but (again) was chosen by him for reasons of making greater fees on it, than doing a better, more professional procedure

I may have doubled up or repeated myself on (g), but that too would be debate-able if you dissect the investment choices involved carefully.

re falsely implied duties of professional care. You signed something, based on false representations of a professional "advisory" relationship. Said relationship did not exist and thus you have been defrauded. Plain and simple.

re: (veeery bad practice to dupe a signature out of a consumer, while purporting to be someone (advisor vs commission salesperson) you are not AND while putting them at professional risk.......wouldn't you think?) A solid professional practice of self protection against the very type of complaint you have, is to write up a very clearly worded letter or warning to the client, suggesting that what they are doing is potentially harmful to them, and is NOT part and parcel of any advice from "advisor", and that this course of action is entirely the choice of the customer for purposes of being very aggressive.........AND this letter to be signed and acknowledged as read and understood by the client.....AND simultaneously the client KYC (Know Your Client) form is to be amended to read HIGH RISK,AGGRESSIVE GROWTH OBJECTIVE, chosen by client, signed by client, dated, and copy of the letter sent to client as confirmation AND entered into database record of client.......then and only then would a true professional "advisor" allow a client to take on high risk, high aggressive leverage strategies.
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Postby admin » Sat Mar 10, 2012 3:05 pm

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How the investment sales "BAIT AND SWITCH" looks from the other end of your money.......(when it is gone, I mean)

Some further back and forth between myself and an abused investment customer who is trying to get their money back........FYI to other investment malpractice victims.........


Hi Larry,
Can you give me your "non-legal used to be an advisor" reflection on the following situation:

On all of our account NAAF's and KYC's, our advisor never split our assets on our individual accounts.

The firm says we qualified for the leveraged loans because of our income. It has been pointed out to us that IIROC and the firm don't have specific criteria for leveraging. We were declined for one of our two joint loan applications for the leveraged investment because of the group exposure. We were approved for one of them. The Contact logger then said that our advisor cancelled our loan applications to apply for them individually and to expect new individual applications for the loans. On the NAAF's for our first two leveraged accounts, they stayed joint and he never re-did them for my spouse's Loan. Then we were then approved for one joint loan and one individual loan. We are confused about why we were declined for two joint loans, but accepted for one joint loan and one individual loan. How does our group exposure change in this situation? If we qualified because of our income, why was one of our initial loan applications turned down?

The other partner applied for my spouse's loan. The firm says that is because we bought a segregated loan with that money. Our position is that it may have been done as our other one was declined and now it isn't cross referenced as it is with another advisor. No proof of that rationale. However, our emails with the firm trying to unravel the mess have their compliance insisting we had only one loan. The initial joint one. It took the a month to find the other one. I don't think they were filed together.

If we go small claims,no one can find the advisor, AWOL. Our advisor was the branch manager. From what I have read, he was the ultimate responsibility for the branch. All NAAF's are signed by his partner and compliance. Loan applications were signed by just him and/or his partner. It looks like we have to pin the whole responsibility on the firm and bank and not argue the advisor's behaviour? just supervision and misrepresentation? My feeling is that then the firm should have to find the advisor for restitution. But that is just me.

The point has been made that because the bank that approved the loan after it was declined that perhaps they should share liability. We don't have time to go thru a complaint process with them and would have to put them on the statement of claim. Because that loan bought a segregated product, it would come under a different insurance ombudsman. On the positive, it feels like the line of questioning is supportive of our claim, but I am still doubtful of the end process. But it is a more positive feeling about them.

It's SO complicated! Drawing from your experience in the industry, what do you think?
Thanks for your reflections.


What do I think? I will go far beyond what I think and tell you that which I know :).....from twenty years of being inside the system of commission selling of investment products,......... it is this that I know:

That the salesperson (who may have claimed to NOT be a salesperson, but that is another paragraph....and another industry misrepresentation) will document the new account forms, or the KYC forms to EXACTLY the manner necessary in order to justify the sales he or she is intending to make to you.

If this means forgery, that has happened in the past. If that means filling in the forms after the client is gone, that was almost standard practice in some offices and by some salespersons. If it meant sitting down with the client and "coaching" them through the form, making "suggestions" to them about what their objectives "should" be, or what would "be best", etc., etc then that is what will take place.

Remember that the customer is there, having been assured a level of professional advice, of standards, and of implied duties from the "advisor". The fact that this may not have been delivered is NOT the fault of the client, nor is it the client's fault if they suspended their normal "buyer beware" level of mistrust, of judgement, or of skepticism. The client was lured into a relationship where they thought they were getting a trusted professional, and they were NOT given this. They were lied to at this level, then their misplaced trust was used and abused by the "advisor" who assured them he was their "advisor". If you are in the office of your doctor and he "walks" you through some documents, or some questionnaire on exercise or treatment or the other.......the typical response is to "take his advice and direction". You are not to be blamed for being victimized by a financial person who plays this same professional card with you.

http://www.examiner.com/crime-in-calgar ... ideo-video 2 minute explanation of the "foundations" of your fraud
It should come as no surprise (to a judge) that the fruit of this poisoned tree of misrepresentation might bear no relationship to reality or to the truth.............but I can assure you one thing..........the commissions were great:) for what the guys sold you........and greater for convincing you of the leverage thing.

you have been systemically duped, by a system designed to maximize profits to themselves and minimize professional accountability...........

I am rambling now, and off track, but what does it matter what the firm says? The firm has proven with a few examples that they will say and do anything, including lie, in order to mislead and manipulate the customer. At what point should we start to believe them? At what point do they have credibility? I will tell you exactly where their credibility begins and ends.........it begins with their own system of "self regulation" (IIROC, MFDA, Securities Commissions, etc., etc) and it ends the moment it is put in front of an objective, non industry paid judge.

So what if you had enough income to qualify? Was it advice in your interest (as you were led to believe) to leverage you to the nines, or was it advice in the salespersons interest? You have been defrauded, regardless of the paperwork, regardless of your income, regardless of your level of sophistication. The fraud was in what you were misled to believe, and what product you were sold, and what manner you were sold it.......not whether you were a big enough boy to "take it".

(the only factor which would alter the above position is that if you had a letter from your firm and it's salesperson, telling you in no uncertain terms of the risks of leveraging, of the potential for increased loss, etc., etc, and which you signed saying you were FULLY aware of those additional risks, and were FULLY willing to assume and accept them. (you may have seen such risk waivers used in the medical profession, and I assure you they are also used by very professional investment people, who would like there to be NO UNCERTAINTY about the course of action they have "advised")

Without this risk waiver, you just got sold a bunch of high cost mutual funds by a guy calling himself an advisor, but who has no advisor license, by a firm promising you some trust and care, and delivering instead mostly highest fee selling.........how many frauds can we cover in this?)

I am sorry if this does not help, but I think the main thing to remember is to keep the main thing, the main thing, and the main thing is not in the minute details of whether or not you had enough income for him to abuse you......or in any other of the minute details they are throwing at you........these are simple little roadblocks which simply build up and reinforce the image of a firm which does not live up to its promise of trust and integrity...............the main thing is that they lied to you and conned you into a position of trust, and then abused this trust to earn more money for themselves.........that is the main thing. Do not let them roll you around in the dirt of distraction.......:) And remember to have fun. They are getting very desperate, and you are getting very close to some pretty large truths. Truths that are affecting millions of Canadians in this very same game, all of them fighting this same fight in silence and secrecy.

Thanks for having some willingness to fight the good fight, and get something about these abuses on the public record.


PS, some further specifics about whether or not you need to find the advisor.......who cares? Finding the advisor is not your problem, it is theirs. They owe you the duty they led you to believe, and if the advisor did not provide that, then they have a problem with HIM. Their obligation to you is to make you whole, if they did not treat you honestly, (or if their licensed or unlicensed rep did not) then your issue is with them.

Re the bank issue, joint liability or something.........another attempt to sidetrack you onto some dirt road of irrelevance in my opinion. If the investments were properly represented, AND in your best interest, AND all material facts fully disclosed to you, AND they had you sign off that you were a big boy and you knew and understood every aspect of the above......then, they would have no problem, the bank's expectations would have been met as well (because this is what the bank expects them to do), and you would have no case and no reason to complain.

They failed to professionally cover off anything in the paragraph above, their advisor has skipped town, and they are trying to beat you a second time (first beating was getting your commission money) by not being responsible as the professionals they claimed to be. Don't let them distract you with their bull.

Whew!.......glad to get that out of my system:)
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Postby admin » Sat Mar 10, 2012 9:36 am

https://docs.google.com/document/d/1AHe ... 25csU/edit

At this link is a document outlining how they calculate what an investor is owed, in order to "make them whole", if they have been the victim of an unsuitable investment.

Screen shot 2012-03-10 at 9.31.06 AM.png

Click to enlarge image or go to link for actual doc

Keep in mind that in Canada, these types of fairness discussions are frowned upon and not generally "allowed" by our self regulating industry. Do not take this as the final answer to your problem, however, as suitability, fraud, misdirection or malpractice is still wrong, even if those inside the industry do not admit it here yet.

In Canada, we are a decade or two behind most developed countries, in investor protection. Pursue your case as if right is right and wrong is wrong, and pursue it with independent authorities (criminal and civil courts) and NEVER ever fall into the trap of the kangaroo courts run by those paid by the industry. If you enter any industry paid process, you will no doubt suffer a second loss, the first being your money.

Cheers to your financial health.
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Postby admin » Thu Jan 05, 2012 3:10 pm

images.jpeg (3.37 KiB) Viewed 18705 times
(seriously folks, get ALL of your money back and any commissions you paid if any person calling themselves an "advisor", "advised" you to .......borrow to invest.......seriously)

from David Baines at the Vancouver Sun... http://www.vancouversun.com/business/Bo ... story.html

Opinion: Borrowing for stock market investments is a dangerous game


In its latest annual report, the Mutual Fund Dealers Association of Canada announced it will focus its enforcement efforts on advisers who recommend inappropriate leveraging strategies to their clients.
Photograph by: Sun news services files, .
In its latest annual report, the Mutual Fund Dealers Association of Canada announced it will focus its enforcement efforts on advisers who recommend inappropriate leveraging strategies to their clients.

Good thing, too. In my view, other than investment in penny dreadfuls, there is no more perilous investment strategy. I can-not emphasize this too much.

Leveraging involves borrowing money for investment purposes. In most cases, the investor puts up his home and/or existing investments as security.

By utilizing this additional capital, any gains will be magnified. For example, if you invest $100,000 of your own money in mutual funds, and the value of those funds increases by 10 per cent, you will earn $10,000.

However, if you borrow an additional $400,000, a 10-per-cent gain will return an additional $40,000. So you gain a total of $50,000, which is a 50-per-cent return on your original equity investment of $100,000.

Often these investments are structured so that the investment income (or in some cases a return of capital) is used to make the loan payments. The idea is that, even if the market dips, the investor will have enough cash to service the loan, and can sit tight until the market rebounds.

There are also tax benefits. Any loan acquired for investment purposes is tax deductible.

It adds up to a very seductive investment opportunity, but it has a very ugly flip side. Using the same example, if the market declines by 10 per cent, you will lose a total of $50,000, which is half your original equity investment. And you still owe the bank $400,000.

That's a very scary proposition. As we have seen in recent years, market downturns can be very wrenching. If the investor does not have the nerve or the financial capacity to with-stand the heat, he will bail out, crystallizing some very heavy losses.

Of course, the loan remains and the ongoing debt servicing requirements can seriously compromise the investor's life-style. If the investor is unable to make the payments, the lender will most likely realize on the security, which often includes the family home.

In my view, it is a strategy that is appropriate for only the wealthiest and most sophisticated of investors. How-ever, most people who invest in mutual funds are not market savvy. They are generally people who want other people to manage their money, even though they are almost certain to get below-market returns.

According to Morningstar Canada, a Toronto-based investment research firm, 77 per cent of Canadian equity mutual funds underperformed the S&P/TSX Composite Index during the year ending Nov. 30. This is due mainly to the hefty management fees that mutual fund companies charge their clients.

Over longer periods the figures get worse. During the past three years, 90 per cent of Canadian equity mutual funds underperformed the market, and over the past five and 10 years, that figure exceeded 96 per cent.

(These calculations include only the core funds offered by mutual fund companies, as defined by Morningstar. Where there are multiple versions of a fund, only the core fund is included.)


Read more: http://www.vancouversun.com/business/Op ... z1ickySZi4
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Postby admin » Tue Dec 06, 2011 11:12 pm

Mutual Funds.jpg

Here is an example of an investment client, who was placed into high commission funds, and leveraged to boot, who truly has figured out how to write a decent complaint to get his money back:

The letter is so good that I had to post it here for others to see. There are tens of thousands of similarly abused investors out there who have been taken by dishonest and corrupt practices. Read and get your money back.

November 2011,

Dear CEO,

We write in regards to (NAME REMOVED)'s lack of response to our complaint letter. You clearly state on your website that “At (NAME REMOVED), we… put our clients first” and highlight your “principles of honesty, trust and integrity,” yet our experience with your firm has been to the contrary.

Perhaps a truer version of (NAME REMOVED) is revealed on Advisor.ca where you are quoted as having said, “I realized our clients are our advisors.” You claim to have “doubled our assets and tripled our gross commissions in about a year with selling “a conservative, leveraged approach for making loans that are tax-deductible” and by “rais[ing] initial capital for small companies and take them public,” “with the minimum amount of interference.” I believe we may not be the only customers who were abused by (NAME REMOVED) advisors.

The sales to us of these unauthorized and unsuitable investments and the leveraged strategies garnered with false disclosure are clearly in violation of IIROC regulations. Your lack of response denies your advertised principles. We feel we were sold these investments for the benefit of your firm and “advisor,”(NAME REMOVED).

Background checks now reveal that the person at your firm whom was promised to us to be an "advisor" was not at any time licensed as an "advisor ". We have also learned of industry "suitability" rules which appear to be violated by selling us the fund class which paid the highest commission and highest trailing commission, when an equal, but lower cost alternative was available to us. This does not strike us as being the actions of an "advisor".

Further we have learned that your representative also violated something in the industry known as the "best execution rules" by giving us the poorest cost advantage possible, and the best commission advantage available to yourselves.

Your company name misleads consumers to believe they are receiving investment advice from financial advisors, when the actual license and registration category, as well as the compensation scheme places them as mere "salesperson", or as "dealing representatives", the license term that replaced "salesperson" in 2009.

These clear and numerous acts on the part of your company not only violate the promises of, “principles of honesty, trust and integrity”, that are given by your firm, but could also be construed by some to constitute criminal acts of fraud, negligence, misrepresentation, and negligent misrepresentation. Those laws are under the administration of the criminal code of Canada, and the Competition Act of Canada.

We expect that (NAME REMOVED) will stand by its advertised principles of honesty, trust and integrity and make our account 100% whole by returning the interest paid on the leveraged investments, lost opportunity costs that would have been earned on a suitable strategy, and the costs of pursuing this complaint due to the further abuse of withholding our money from us as we pursued a response.

Without a response in 90 days that fully compensates us for our losses and damages, we will be forced to take our complaint file with us to the courts. We are at this time pursuing both civil and possible criminal actions in response to the the manner in which our money has been abused by your firm. I trust that this matter will be dealt with in the most timely and serious manner possible, to prevent having to engage the civil and or criminal courts.

We hope that (NAME REMOVED) will stand behind its principles and do what it takes to correct the breach of trust we have experienced and the financial loss and damage to our accounts.

Kind Regards,


(Advocate will try and provide a followup and an update as to the outcome or resolution of this complaint)
45 REP skimming_042.jpg
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Postby admin » Fri Nov 25, 2011 11:32 pm

(Advocate comments: anyone with an RRSP, or a basic garden variety investment account has what is called a "non discretionary" account. Here is good info on how the industry will use this to screw you if they need to)

Sponsored by The Hayes Law Firm
Non-discretionary Accounts
August 06, 2007
by Lawrence C. Melton, lmelton@dhayeslaw.com THE HAYES LAW FIRM, http://www.dhayeslaw.com, 1-866-332-3567 (toll free)

There are two general types of investments accounts: non-discretionary and discretionary. A non-discretionary account requires the broker to obtain authorization before it makes any investment decisions. A discretionary account allows an investment broker to make account transactions without the client’s prior approval. The problem is twofold: (1) brokers often treat non-discretionary accounts as if they were discretionary, and (2) brokers do not adequately explain the difference between the two accounts to the customer.
Suppose you, the average investor, open an account with a brokerage firm. Chances are you will do so without knowing whether the account is discretionary or non-discretionary. Down the road, the broker messes up, defrauds you, and makes grossly unsuitable investments. You want to take legal action, but you are uncertain. What will be the broker’s defense? He will say the account was non-discretionary and deny responsibility. In other words, he will blame you. He will say you were in control of the account, not him. No doubt, this is news to you. After all, the broker acted like he was in control. There was implicit understanding that he was in control. The only basis the broker has for saying that he was not in control is the non-discretionary status of the account.
How do you overcome this defense? How do you prove that the broker was in control, even though the account was non-discretionary? Answer: You have to prove the broker “assumed” or “usurped” control of your account.

A broker is not insulated from a charge of unsuitable trading merely because the customer did not vest the broker with formal written discretionary authority. Rather, where it can be shown that the customer-broker relationship is such that the broker in fact manages the trading in the account, control will be found. (In re Thomas McKinnon Secs., CCH Fed Secur L Rep ¶ 99104 (1996, SDNY)).
Typically, this occurs when the customer evinces such trust and confidence in his or her broker that the customer invariably follows the broker's advice and recommendations. (See Newburger, Loeb & Co. v. Gross, 563 F.2d 1057 (2nd Cir. 1977); Mihara v. Dean Witter & Co., 619 F.2d 814 (9th Cir. 1980)).
The question is whether the customer has sufficient understanding and financial acumen to evaluate the broker's recommendations and reject them when the customer thinks it inappropriate. (See Newburger, Loeb & Co. v. Gross, 563 F.2d 1057 (2nd Cir. 1977); Carras v. Burns, 516 F.2d 251 (4th Cir. 1975); Newburger, Loeb & Co. v. Gross, 563 F.2d 1057 (2nd Cir. 1977)).
http://www.aboutbrokerfraud.com/nondisc ... _accounts/ 11/25/2011
ABOUT BROKER FRAUD BLOG: Non-discretionary Accounts Page 2 of 3
Where the customer is relatively naive and unsophisticated, and the customer routinely follows the broker's advice, control will generally be found. (Mihara v. Dean Witter & Co., 619 F.2d 814 (9th Cir. 1980); Hecht v. Harris, Upham & Co., 283 F.Supp. 417 (9th Cir. 1980)).
While an otherwise intelligent customer will not be allowed to hide behind a mask of ignorance, the customer's sophistication and success in one area of life will not necessarily mean that he or she will be found sophisticated enough to understand all the risks of a particular investment or trading strategy, so as to protect the broker from a finding that the broker controlled an account. Clark v. John Lamula Investors, Inc., 583 F.2d 594 (2nd Cir. 1978); Cruse v. Equitable Sec. of New York, Inc. 678 F.Supp.1023 (SDNY 1987).
Whether or not a broker controls the trading in his or her customer's account is a question of fact. Control may exist as a result of an express written agreement between the broker and the customer, or may be inferred from their particular relationship. (Fey v Walston & Co. 493 F2d 1036, CCH Fed Secur L Rep ¶94437, 18 FR Serv 2d 835 (7th Cir. 1974); Newburger, Loeb & Co. v Gross (1977, CA2 NY) 563 F2d 1057, CCH Fed Secur L Rep ¶96148, 1977-2 CCH Trade Cases ¶61604, 24 FR Serv 2d 42 (2nd Cir. 1977), cert denied 434 US 1035, 54 L Ed 2d 782, 98 S Ct 769, appeal after remand (CA2 NY) 611 F2d 423, 28 FR Serv 2d 602).
To determine whether a broker exercised de facto control over trading in a non-discretionary account, courts look to several factors. Zaretsky v. E.F. Hutton & Co., 509 F.Supp. 68 (SDNY 1981); In re Thomas McKinnon Secs., CCH Fed Secur L Rep 99104 (SDNY 1996).
Of critical importance are the personal characteristics of the customer, such as his or her age, education, general intelligence, and business and investment experience. Control is likely to be found where the customer is particularly old, young, lacking in education, or was inexperienced in the stock market or lacked financial sophistication. Hecht v. Harris, Upham & Co., 283 F.Supp. 417 (9th Cir. 1980) (finding control when customer was particularly old); Kravitz v Pressman, Frohlich & Frost, Inc., 447 F.Supp.203 (Mass. Dist. Ct. 1978) (finding control when customer was particularly young); Leib v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (E.D. Mich. 1978) (finding control when customer lacks education); Carras v. Burns, 516 F.2d. 251 (4th Cir. 1975) (finding control when customer lacks education or is inexperienced in the stock market or is lacking financial sophistication).
Another factor closely examined by the courts is the relationship between the broker and customer, whether it was an arm's length business relationship or a combination of business and friendship.
Also significant are the reliance placed on the broker by the customer. Fey v. Walston & Co., 493 F.2d 1036 (7th Cir. 1974); Petrites v. J.C. Bradford & Co., 646 F.2d 1033 (Fla. 5th DCA); Marshak v. Blyth Eastman Dillon & Co., 413 F.Supp. 377 (ND Okla 1975). If a broker has acted as an investment adviser, and particularly if the customer has almost invariably followed the broker's advice, the fact finder may consider this as evidence that the relationship is discretionary and that the broker owes a fiduciary duty to the customer. Patsos v. First Albany Corp., 433 Mass. 323, 741 N.E.2d 841 (Mass. 2001).
A course of dealing in which a broker executes trades without client's prior approval suggests that the account is discretionary for purposes of broker's fiduciary duties; similarly, if a broker has acted as an investment adviser and client has frequently relied on that advice, there is a strong indication that the account is discretionary. In re Murphy, 297 B.R. 332, 41 Bankr. Ct. Dec. (CRR) 226 (Bankr. D. Mass. 2003).
http://www.aboutbrokerfraud.com/nondisc ... _accounts/ 11/25/2011
ABOUT BROKER FRAUD BLOG: Non-discretionary Accounts Page 3 of 3
Past evidence of following broker's advice will establish control. If a broker has acted as an investment adviser, and particularly if the customer has almost invariably followed the broker's advice, the fact finder may consider this as evidence that the relationship is discretionary and that the broker owes a fiduciary duty to the customer. Patsos v. First Albany Corp., 433 Mass. 323, 741 N.E.2d 841 (Mass. 2001).
As noted by the Second Circuit, a broader duty may be recognized in a non-discretionary account in the following circumstances:
(1) if the broker has engaged in unauthorized transactions or has otherwise effectively taken over the handling of an account even though it is labeled as a self-directed account;
(2) if the client is prevented by "impaired faculties" or extreme lack of sophistication from understanding the basics of trading and thus simply lacks the capacity to handle such an account;
(3) if the broker "has a closer than arm's length relationship" with the client;
(4) if the broker violates legal or industry requirements concerning risk disclosure when opening an account; or
(5) if the broker offers advice on a specific transaction that was "unsound, reckless, ill-formed, or otherwise defective."
Stewert v. J.P. Morgan Chase & Co., 2004 WL 1823902, 2004 U.S. LEXIS 16114 (NYSD 2004) (citing Kwiatkowski v. Bear Stearns & Co., 306 F.3d 1293, 1302-03, 1307-08 (2d Cir. 2002)).
If you can establish the above elements, the broker will not be able to hide behind the non-discretionary account defense. THE HAYES LAW FIRM, http://www.dhayeslaw.com, 1-866-332-3567 (toll free) Free Weblog Directory BlogRankings.com FreeWebSubmission.com Posted at 04:03 PM in Non-discretionary Accounts | Permalink|Comments (1)|TrackBack (0)
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Postby admin » Mon Oct 31, 2011 5:54 pm

320712_256292294408596_201546203216539_630310_586027531_n.jpg (22.77 KiB) Viewed 18474 times
If you have lost money with the help of someone who claimed to be an "advisor", I suggest you get your money back. Spend some time on this forum and have your research in order and then email me with any questions. I will gladly help you write the letter, file the statement of claim or the private criminal charge for negligent misrepresentation. Only talk to me however if you are able and willing to take a no nonsense, no bull approach to getting your money back. That is what it will take to overcome the vast "reputation protection racket" that the investment industry has placed around itself.

And here is a link for those who have been encouraged to BORROW to invest.

xhttp://faircanada.ca/wp-content/upload ... -final.pdf

there is hope
there may even be justice if you demand it

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Postby admin » Sat Oct 29, 2011 2:37 pm

Screen shot 2011-10-29 at 3.36.49 PM.png


some useful help in getting your money back from a person or a firm who "sold" you something under the guise of investment "advice"
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Postby admin » Fri Oct 21, 2011 3:28 pm

30 Rep product pusher_027.jpg
Advocate comments: This article is important to abused investors because............Industry rules require the investment firm to oversee and be financially responsible for each of their "dealing representatives" (salespeople who improperly call themselves "advisor")

Just one of the many closely guarded secrets the firm will keep from you when you complain about your "advisor's" advice. It works like this......we make a ton of money letting phoney "advisors" manipulate customer's money for commissions, we share in those juicy commissions, BUT if push comes to shove, we will try and shove the salesman under the bus and have him lose everything, while we maintain our attitude that he was a "rouge" salesman, and we had nothing to do with it. Make sure your getting your money back involves going after the firm and not simply the licensed salesperson, or the representative of that dealer.

Berkshire Securities Inc. admits it didn't properly supervise broker

OCTOBER 18, 2011
A Toronto-based brokerage firm has agreed to pay a $120,000 fine and $10,000 in costs to settle allegations that it failed to properly supervise one of its former Abbotsford brokers.
In a settlement agreement No. 11-0292 with the Investment Industry Regulatory Organization of Canada, Berkshire Securities Inc. (now operating as Manulife Securities Inc.) admitted that it failed to properly supervise Syvert (Sy) Mytting in 2007.
According to the settlement agreement, Mytting recommended that five of his clients borrow money to invest in mutual funds.
Berkshire admitted that its supervisory personnel failed to determine whether this leverage strategy was suitable for these clients, given their age and financial circumstances.
The settlement agreement also reveals that Mytting personally guaranteed losses in another client account, which is strictly against brokerage industry rules.
Berkshire admitted that, when Mytting first raised the issue of compensating clients, it failed to promptly inquire into the matter, which could have uncovered unsuitable investment recommendations and curbed further losses.
The settlement notes that, in all cases, Berkshire compensated the clients for losses suffered on account of Mytting's misconduct.
Warren Funt, IIROC's vicepresident for Western Canada, said in an interview Monday that he expects disciplinary action to be initiated against Mytting.
Even before this regulatory action, Mytting was a controversial figure. More on this later.
As I have noted in previous columns, borrowing money for investment purposes can be profitable, but it is also extremely risky.
Berkshire heavily promoted the benefits of leverage. Its promotional literature listed "five laws of wealth creation." One of those laws was "use other people's money," that is, borrow money for investment purposes.
Mytting, it appears, was more than willing to recommend this strategy to his clients.
The settlement agreement states that, in one case, he recommended a couple borrow $750,000 from AGF Trust Company, which charged interest at 6.5 per cent annually.
The loan represented 114 per cent of their net assets of $660,000, and 3,750 per cent of their liquid assets of $20,000. Their combined annual income was just $99,000.
In another case, he recommended a couple - 71 and 62 years old - borrow $863,000. The loan was 63 per cent of their net assets of $1.36 million, and 81 per cent of their liquid assets of $1.1 million in liquid assets. Their combined income was only $62,000.
According to the settlement agreement, each Berkshire account that contained leveraged investments was identified to supervisors with the code "LEV," for leverage. Also, Berkshire's supervisors were generally aware that Mytting commonly recommended leveraged loans to his clients.
However, the firm didn't have electronic systems to monitor the extent of the leverage, and branch supervisors didn't sufficiently review client accounts to determine whether the leverage was suitable for each client, Berkshire admitted.
After Manulife acquired Berkshire, the firm introduced new criteria for determining when leverage levels are excessive, including age, loan-to-asset and loan-to-income thresholds.
The settlement agreement also notes that in February 2007, another client deposited $1 million into his account, and bought $1 million worth of equity mutual funds.
In August 2007, Mytting talked to the branch manager about personally guaranteeing the client against losses. A few days later, he was told that this was against the rules.
Berkshire admitted that Mytting's inquiry should have prompted further questions.
"The fact that Mytting was considering making up losses in the account should have alerted the branch manager that Mytting had possibly made poor or unsuitable recommendations in the account which caused the client unexpected losses," the settlement agreement states.
In September 2007, the branch manager discovered that Mytting had agreed that he would cover any losses, and the client would pay him any profits.
However, the branch manger didn't contact the client until December 2007, by which time the value of the account had declined by another $50,000.
A few days later, Mytting was terminated. He is no longer working in the brokerage industry.
According to the B.C. Securities Commission database, Mytting became a licensed broker in 1994. From 1996 until it went bankrupt in 1998, he worked at Vantage Securities, where he sold millions of dollars of investments in cranberry and oyster farms, and other high-risk illiquid deals that caused investors all sorts of grief. He also pitched financial products through radio infomercials.
He is now billing himself as the co-founder and CEO of Green Trust Innovations, which is offering distributorships for the "Performax injector" for internal combustion engines.
He claims the device can provide 30-per-cent better fuel mileage and 90-per-cent less emissions while providing more horsepower.
When I asked him to provide scientific proof, he said he would do so only if I signed a non-disclosure agreement, which I refused to do.
Green Trust's website describes Mytting's stint at Berkshire in glowing terms: "As one of Berkshire's top investment advisers, Sy managed over $65,000,000 of client investments and was the top business developer out of 1,000 Investment Advisors. Sy received numerous financial and recognition awards for his outstanding achievements at Berkshire Securities and was invited to have dinner with Mr. Warren Buffett, one of the great investors of our time."
There is no mention of his compliance problems and subsequent dismissal.
Mytting also bills himself as "an Isness master," which he describes as somebody "who has recognized that their true identity is divine consciousness and lives that truth ... so that it might be revealed on earth."
Hopefully, IIROC will reveal the truth about his dealings at Berkshire.
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Postby admin » Fri Aug 05, 2011 12:30 pm

Picture 27.png
click on image to enlarge
(go to your securities commission and LOOK UP the license and registration category of the person calling themselves your trusted "advisor". I can almost promise you that this person is misrepresenting his or her license and responsibilities to you. GEY YOUR MONEY BACK if you have been thus defrauded.)

This is a good article that helps illustrate the dozen different "opinions" or thoughts on the salesperson or "advisor" question. It is a billion dollar question:
http://communities.canada.com/vancouver ... ators.aspx
Vancouver Sun
David Baines: Victoria financial planner David Michaels sidelined by insurance regulators


Filed under: b.c. securities commission, Insurance Council of B.C., David Michaels, Gerry Matier
Victoria financial planner David Michaels, principal of Michaels Wealth Management, has been prohibited from selling insurance products.

Gerry Matier, executive director of the Insurance Council of B.C., said in an interview Thursday that Michaels’ licence is contingent on him being supervised by an experienced life insurance agent. However, Michaels' supervisor, Arthur Rowland of North Vancouver, declined to continue his supervisory role, which means Michaels’ licence has been rendered inactive.

The action follows a series of reports in The Vancouver Sun that Michaels sold tens of millions of dollars of high-risk illiquid securities investments to people who, due to age or financial circumstance, should never have bought them in the first place.

The general rule in B.C. is that nobody can sell or advise in securities unless they are registered to sell securities. However, Michaels sold these investments under exemptions from prospectus and registration requirements in the B.C. Securities Act.

He advertised these investments as safe and secure, and promised high returns, however, many of them have collapsed or discontinued distributions to investors. Among them are Focused Money Solutions, Pepper Creek Oil & Gas, and the Bethel Care facility in Sidney, B.C.

B.C. Securities Commission investigators are now trying to determine whether Michaels, in the course of selling these products, advised people to buy them, which he could not legally do because he was not registered as an securities advisor.

This is not the first time Michaels has been in regulatory trouble. He was previously licensed as a mutual fund salesman with Dundee Securities. Then, in 2004, he was caught selling penny stock in off-book transactions with clients and borrowing money from clients, then lying about it to investigators.

The Investment Dealers Association of Canada (now the Investment Industry Regulatory Organization of Canada) revoked his mutual fund licence for two months and fined him $60,000. When his suspension expired, he did not get re-licensed as a securities salesman or advisor, but that did not preclude him from selling exempt securities products.

He also held an insurance licence, but due to his securities problems, the insurance council insisted he be supervised by an experienced life insurance agent. That supervisor bowed out last week after The Sun reported that Michaels’ clients had lost, or stood to lose, substantial amounts of money on account of exempt securities products that he had sold them.

Although Michaels has been precluded from selling insurance products, at least until be finds another supervisor satisfactory to the insurance council, that does not necessarily end the matter. The council has become increasingly concerned about insurance agents who sell exempt securities products to their clients, particularly if the agent has advised the client to liquidate insurance products to pay for these investments.

Matier said that, as a matter of policy, he could not confirm or deny that the council is investigating Michaels’s conduct, but he noted that the council is permitted to pursue agents even if they have left the industry or are no longer active.



Advocate comment.......does that clear it up for you?........the industry is making up the story AFTER the fact to support whatever behaviours they wish to support. Use this kind of obvious subterfuge to GET YOUR MONEY BACK if you have been dealing with a guy who cannot tell you, let alone show you what his license says.
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Postby admin » Thu Jul 07, 2011 1:13 pm

not legal advice, but you CAN file private criminal charges yourself if the police refuse to get involved:
from http://www.bcrevolution.ca/filing_priva ... cution.htm

If you have reasonable grounds to believe an offence has been committed contrary to a provincial or federal statute [i.e. Criminal Code of Canada], a regulation made under that statute, or a municipal bylaw, you may prosecute the offender yourself. Before launching a private prosecution, you may want to make a complaint to the police. If the police refuse to lay charges and you believe there is enough evidence of an offence to support a conviction, you may lay your own charges.

Prosecutions consist of five (5) basic parts:

Laying the information

issuing the summons

serving the summons

setting the trial date

the trial

1. Laying the Information

The first step is to go to a justice of the peace (JP) at your local court and sign a form on which you set out the details of the alleged offence. This form is called an "information," and you are referred to as the "informant." The JP then asks you to swear that this statement is true, and the JP signs his or her name as a witness. This process is called "swearing the information." Formal charges have now been laid.

Draft the charges with care, because inaccurate information may hurt your chances of a successful prosecution. Often the JP will draft the charges for you, or you may wish to fill out the form with the help of a lawyer. Here are some tips:

The forms used for provincial offences are different from those for federal offences, so be sure you get the right one.

Be sure to lay the information promptly. Under the Ontario Provincial Offences Act and the summary conviction provisions of the Criminal Code, you have only six months from the time an offence occurred to lay the charges. Some statutes have shorter or longer limitation periods.

Be precise. It is safest to follow the wording of the statute describing the offence (e.g., the Highway Traffic Act) as closely as possible.

State the specific date and place where the offence occurred, and give the name of the accused in full. If the accused is a corporation, use the full corporate name.

When the information relates to more than one breach of the law, set out each offence in a separate "count" (separately numbered paragraphs each setting out all the details of one offence).

When laying charges under the Highway Traffic Act against the registered owner of a motor vehicle, set out not only the section of the Act that was violated but also that the violation occurred contrary to section 207, the section that makes the owner liable for violations by the driver.

2. Issuing the Summons

The JP has no discretion in swearing the information – he or she can't refuse to do it. However, the JP does have discretion not to take the next step: issuing the summons to the accused. The summons is a copy of the information that also states the time and place where the accused must appear to answer the charges.

JPs are mainly used to issuing summonses for the police, and some JPs may be reluctant to issue a summons requested by a private citizen. The JP can ask you probing questions, so it is advisable to be well prepared when you visit the JP to swear the information, and even to bring a lawyer with you if you anticipate difficulty.

If the JP issues the summons, he or she will usually make it "returnable" in about two to four weeks' time. At least two weeks should be allowed, so there is enough to serve the summons on the accused. The "return date" will not be the trial date, but the date when the prosecutor and the accused appear in court to set a date for the trial.

3. Serving the Summons on the Accused

Serving the summons means delivering the summons to the accused. Serving a summons is generally valid only if it is done by a designated person – usually a police officer. [The staff of the county and district sheriff's offices are also peace officers, and for a fee they may serve summonses for you. Give them the summons as early as possible and follow up with them to check that the summons has been filed.]

To be on the safe side, it's a good idea to also personally deliver or mail a copy of the summons to the accused. Even though the accused is not required to respond, many people do not know this and will come to court. Once the accused or his or her lawyer appears in court, the accused is bound by the summons, even if he or she need not have appeared.

Once a summons has been served, the person who served it must fill out and sign an "affidavit of service" on the back of a copy of the summons. This affidavit sets out the identity of the person served with the summons, and the time and place the summons was served. It is then up to you to make sure the copy of the summons with its affidavit of service is filed in the proper court before the return date (this will mean chasing up the police officer or whoever served the summons).

4. Setting the Trial Date

On the return date, the informant and the accused or their lawyers meet to set a trial date. Choose a date far enough away to give you time to prepare, and to give the accused written notice of all the documents you intend to use as evidence. (Otherwise the documents may be inadmissible.) Also make sure you choose a date when all your witnesses are available.

The court will set a trial date and adjourn the case to that day.

If the accused does not turn up on the return date, the court will go ahead anyway and set a date for the trial. But if the affidavit of service has not been filed with the court, the court will not proceed, and a new summons will have to be issued.

A brief glance at the broader history of criminal prosecution may help
to put this article in its proper context. For the purposes of this section,
it is useful to divide English history into four periods. 12
1. The first age of private prosecution (seventh to tenth
centuries). During this period criminal prosecutions were almost entirely
private. Prosecution was at least partially motivated by the possibility of
monetary compensation. Until at least the late tenth century, those
convicted of crime were not ordinarily hanged, incarcerated, or otherwise
punished, but instead owed the victim compensation (bot) or, in homicide
cases, owed the victim's family the deceased's wergild, a monetary payment
that varied with the deceased's social status.6 13

2. The rise of presentment (tenth to fourteenth centuries).
Starting in the late tenth century, Anglo-Saxon kings began to change the
nature of criminal prosecution. Aethelred's third code, promulgated around
1000, required the twelve leading thanes (nobles) of a wapentake (district)
to accuse and arrest those suspected of crime in their locality.7 This
procedure seems to foreshadow presentment, which, according to some
historians, did not became a routine part of judicial administration until
almost two centuries later, during the reign of Henry II. Under the
presentment procedure, leading men were chosen from each locality and were
required to present (that is, report) on oath crimes committed in their
neighborhoods. These leading men were known as the presenting jury, which is
the ancestor of the grand jury. Like the medieval trial (petit) jury, the
presenting jury was self-informing.8 Little or no evidence was presented in
court. The jurors were expected to gather information informally before they
came to court and to present their conclusions to the judges. 14

The nature of criminal penalties also began to change during this
period. As early as the late tenth century, bot seems to have been payable
to church, king, or community at large rather than to the injured kin.9
There is also archaeological evidence that the death penalty was frequently
imposed in the eleventh century.10 By the late twelfth century, these
changes were firmly entrenched and are regularly attested to by the
surviving records. Hanging and fines payable to the king were the only
criminal penalties regularly imposed in royal courts. In addition, hanging
was usually accompanied by forfeiture of land and chattels. 15

Although presentment and noncompensatory punishments were
becoming increasingly important, no English king even attempted to abolish
private prosecutions, which by the late eleventh century were called
"appeals." In fact, until the turn of the fourteenth century, presentments
were confined almost exclusively to homicide and theft,11 and nearly all
accusations of rape, mayhem,12 wounding, false imprisonment, assault and
battery were brought by way of appeal, as were large numbers of homicide and
theft cases. Although the legal sanction for crime was death or fines
payable to the king, victims (and their families) could appeal and use the
threat of legally imposed hanging or fines to induce compensatory monetary
settlements. By the end of the thirteenth century, however, the appeal was
becoming much less common, and presentment had become the way nearly all
crimes were prosecuted. 16

3. The return of private prosecution (fourteenth to nineteenth
centuries). As noted above, twelfth- and thirteenth-century juries (both
presenting juries and trial juries) were largely self-informing. During the
fourteenth and fifteenth centuries, however, for reasons that have yet to be
fully explained, juries became more passive.13 Trial juries began to rely on
evidence that parties presented in court, and the presenting jury (now
called the grand jury) less frequently made accusations based on its own
knowledge. Instead, the grand jury primarily screened accusations made by
others, declaring "true bill" of accusations ("indictments") it approved.14
Although these prosecutions were formally brought in the name of the Crown,
the predominance of victim initiative suggests that they are properly
classified as private prosecutions.15 Nevertheless, royal officials did
provide investigative assistance. From the late twelfth century, the coroner
had been gathering evidence in homicide cases.16 Justices of the peace
performed a similar function for other crimes from, at latest, the sixteenth
century, and possibly as early as the fourteenth.17 17

4. The age of public prosecution (nineteenth century to present).
In the nineteenth century, partly in response to the growing problem of
urban crime, pressure began to mount for public prosecution. Victims
frequently did not prosecute because it was expensive, time consuming, and
brought few benefits other than the satisfaction of revenge or justice.18 As
a result, by the mid-nineteenth century, most prosecutions were private in
name only, as the "private" prosecutor was in most instances a policeman.
Nevertheless, public prosecution was perceived as a threat to liberty, and
Parliament did not pass legislation to set up a national system of public
prosecutors until 1879.19 Even this statute did not fundamentally undermine
private prosecution, because public prosecutors had very limited
authority.20 It was only with the passage of the 1985 Prosecution of
Offenses Act that England established an effective system of public
prosecution, and even this legislation preserved a limited right of private
prosecution.21 In America, public prosecution seems to have become common
somewhat earlier.22 18


26.1 Introduction
The relationship between the private citizen, as prosecutor, and the
Attorney General, who has exclusive authority to represent the public in
court1, has been described as follows2:

The right of a private citizen to lay an information, and the right
and duty of the Attorney General to supervise criminal prosecutions are both
fundamental parts of our criminal justice system.

The right of a citizen to institute a prosecution for a breach of the law
has been called "a valuable constitutional safeguard against inertia or
partiality on the part of authority"3. However, this right can be abused. It
is sometimes necessary for the Attorney General to intervene and conduct or
stay the prosecution to prevent the harms that may flow from such
prosecutions, for example: 1) the harm suffered by a defendant who is
factually innocent; 2) the harm to the court system caused by a frivolous

Please note that it is a well known fact in the Province of British Columbia, the secret policy directive of the Attorney General's office, is "not to proceed on any private prosecution", and there are many examples of their interference in cases where of overwhelming evidence of criminal wrongdoing was demonstrated to a Justice of the Peace. [Stay in tune with BCREVOLUTION for examples]

Both of the excuses raised above, on behalf of the Attorney General to quash a private prosecution, fail to consider that the private party must FIRST present his/her evidence of the charge(s) to a Justice of the Peace, who themselves are already direct appointees of the government.

It therefore belies all common sense for the Attorney General to assert that "Private Prosecutions" are in any way MORE harmful to the innocent, or frivolous, than the thousands of Prosecutions THEY themselves commence on a daily basis.

An impartial Justice of the piece is more than qualified in making the lawful determination of facts; AS IS A JURY, WHICH OUR LAW OF THE LAND (Eternal Magna Carta) states is our inherent right before we can be imprisoned, or our property seized.

It is THE JURY OF OUR PEERS that is our greatest safeguard against harm to the innocent.

See below (as you read this government document) how the government is continuing to obstruct justice, and encroach on your unalienable right to bring the guilty to justice under our common law, as preserved in our Great Charter of Liberties, 1215, 1297.

This chapter explains the law on initiating and conducting private
prosecutions. It also explains when the Attorney General of Canada may and
should intervene either to conduct or stay such prosecutions.

26.2 Origin of Private Prosecutions
A private citizen's right to initiate and conduct a private prosecution
originates in the early common law. From the early Middle Ages to the 17th
century, private prosecutions were the main way to enforce the criminal law.
Indeed, private citizens were responsible for preserving the peace and
maintaining the law5:

[U]nder the English common law, crimes were regarded originally as
being committed not against the state but against a particular person or
family. It followed that the victim or some relative would initiate and
conduct the prosecution against the offender ...

Another feature of the English common law was the view that it was not
[actually] the privilege but the duty [by right] of the private citizen to preserve the
King's Peace and bring offenders to justice6.

Because of the increase in courts and cases in the Middle Ages, the King
began to appoint King's Attorneys to intervene in matters of particular
interest to the King. Intervention took two forms. The King could initiate
and conduct certain prosecutions through a personal representative. The King
could also intervene in cases begun by a private prosecutor where the matter
was of special concern to the King. By intervening, the King's Attorney
could then conduct or stop the proceedings7. As the English common law
developed, the role of Crown law officers grew. Still, private prosecutions
were allowed. To this day they are recognized in several English statutes8.

26.3 Foundation for Private Prosecutions in Canadian Law
No Criminal Code provision expressly authorizes private prosecutions.
Several provisions, however, impliedly recognize such proceedings. Except
where the Attorney General's consent is required, section 504 of the Code
permits anyone to lay an information. As well, the definitions of
"prosecutor" in sections 2 and 785 make it clear that someone other than the Attorney General may institute proceedings. These provisions apply to
proceedings under the Code and all other federal acts9.

Prior to the 2002 amendments to the Criminal Code10, courts had held: a) a
private citizen may institute and conduct a prosecution under federal
legislation without the knowledge or participation of the Attorney General
of Canada;11 b) clear and specific language is required to abolish private
prosecutions under a federal statute.12

Pursuant to the 2002 amendments, however, important limitations were
introduced on the right of a private citizen to institute proceedings.
Section 507.1 of the Code requires a justice receiving such an information
to refer it to a judge or designated justice, and requires notice to the
Attorney General and an opportunity for the Attorney General to participate
in a hearing to determine whether a summons or warrant for the arrest of the
accused shall issue. In summary conviction proceedings, the private
prosecutor controls the proceedings from start to finish unless the Attorney
General intervenes. In indictable matters, a private prosecutor may conduct
the trial, including the preliminary inquiry. However, the private
prosecutor requires a judge's consent under subsection 574(3) of the Code to
prefer an indictment.

26.4 Authority of the Attorney General of Canada to Intervene in Private

At common law the Attorney General could intervene in private prosecutions
and either conduct the prosecution or enter a nolle prosequi (the
traditional power of the Attorney General to stop proceedings)13. Under
section 5 of the Department of Justice Act, the Attorney General of Canada
is "entrusted with the powers and charged with the duties that belong to the
Office of the Attorney General of England by law or usage, insofar as those
powers and duties are applicable to Canada".

[There is absolutely no such thing as a "common law" right of an "Attorney General" to stop a proceeding at their whim. Our common law has always been based on Rule of Law, and the equality of ALL under the law.

Their assertion is a complete fabrication, and misdirection of the true common law, which is the law for the people, not the re-written half-drunken ramblings [precedents] of government puppet judges who will sell their own soul for 30 pieces of silver.] [LINK to Judges]

The Criminal Code provides that the Attorney General of Canada and Attorneys
General of the provinces share responsibility for conducting prosecutions.
However, several Supreme Court of Canada decisions have made it clear that
the authority of provincial Attorneys General to prosecute under federal
statutes, including the Criminal Code, is given by the Code. Their authority
does not flow from any constitutional principle based on subsection 92(14)14
or from some historic role15. The provincial prosecutorial role is assigned
through legislation by Parliament, not constitutionally entrenched.

Section 2 of the Criminal Code assigns prosecutorial roles as follows:

"Attorney General"

1.. with respect to proceedings to which this Act applies, means the
Attorney General or Solicitor General of the province in which those
proceedings are taken and includes his lawful deputy, and

2.. with respect to

1.. the Yukon Territory, the Northwest Territories and Nunavut, or

2.. proceedings commenced at the instance of the Government of Canada
and conducted by or on behalf of that Government in respect of a
contravention of a conspiracy or attempt to contravene or counselling the
contravention of any Act of Parliament other than this Act or any regulation
made under any such Act, means the Attorney General of Canada and includes
his lawful deputy.
Under this definition, it follows that if a private individual lays an
information, the Attorney General of Canada lacks authority to intervene in
the case, whether to conduct or stay the proceedings. This is because the
proceedings were not "commenced at the instance of the Government of

This lack of authority for the Attorney General of Canada to intervene
applies only to prosecutions brought in a province. According to the
definition set out above, the Attorney General of Canada has full authority
to start and stop proceedings and intervene in private prosecutions brought
in the Northwest Territories, the Yukon Territory, and Nunavut.

"Attorney General" is defined somewhat differently for drug prosecutions.
Section 2 of the Controlled Drugs and Substances Act states as follows:

"Attorney General" means

1.. the Attorney General of Canada, and includes their lawful deputy; or

2.. with respect to proceedings commenced at the instance of the
government of a province and conducted by or on behalf of that government,
the Attorney General of that province, and includes their lawful deputy.
Pursuant to this definition, the Attorney General of Canada has authority to
intervene in private prosecutions of drug matters throughout the country.

Another source of the Attorney General's power to intervene in private
prosecutions may be found in section 579.1 of the Criminal Code. This
section was added in 1994 to give the Attorney General of Canada authority
to intervene in private prosecutions commenced under federal statutes other
than Criminal Code, where the provincial Attorney General has not

Section 579.01 was added to the Criminal Code in 2002 to permit the Attorney
General to intervene in the proceedings without staying them. Under this
provision the Attorney General may call witnesses, examine and cross-examine
witnesses, present evidence and make submissions without actually conducting
the proceedings.

26.5 Statement of Policy
26.5.1 Private Prosecutions in the Yukon Territory, the Northwest
Territories, and Nunavut
The Attorney General has the responsibility to ensure that all criminal
prosecutions are in the public interest. The Attorney General must also
ensure that it is appropriate to permit private prosecutions to remain in
private hands.

When considering whether to intervene, Crown counsel should consult with the
Prosecution Group Head and consider the following:

1.. the need to strike an appropriate balance between the right of the
private citizen to initiate and conduct a prosecution as a safeguard in the
justice system, and the responsibility of the Attorney General of Canada for
the proper administration of justice in the territories;

2.. the seriousness of the offence - generally, the more serious, the more
likely it is that the Attorney General should intervene;

3.. whether there is sufficient evidence to justify continuing the
prosecution, that is, whether there is a reasonable prospect of conviction
based on the available evidence;

4.. whether a consideration of the public interest criteria described in
Part V, Chapter 15, "The Decision to Prosecute", leads to the conclusion
that the public interest would not be served by continuing the proceedings;

5.. whether there is a reasonable basis to believe that the decision to
prosecute was made for improper personal or oblique motives, or that it
otherwise may constitute an abuse of the court's process such that, even if
the prosecution were to proceed, it would not be appropriate to permit it to
remain in the hands of a private prosecutor; and

6.. whether, given the nature of the alleged offence or the issues to be
determined at trial, it is in the interests of the proper administration of
justice for the prosecution to remain in private hands.
Whenever the Attorney General intervenes, the decision to continue or stay
the proceedings should be made in accordance with the criteria set out in
Part V, Chapter 15, "The Decision to Prosecute".

In some cases, it may be difficult to assess whether there is sufficient
evidence to justify continuing the proceedings, because no police
investigation preceded the laying of charges. If so, it will in most
instances be appropriate for the Attorney General to intervene, request an
adjournment, and ask the RCMP to investigate. It may, in some situations, be
necessary to stay proceedings while the investigation is conducted. After
the investigation, Crown counsel should assess whether to commence
proceedings in accordance with the criteria set out in Part V, Chapter 15,
"The Decision to Prosecute". If a decision is reached not to prosecute,
subsequent proceedings brought privately should, in the absence of unusual
circumstances, be taken over on behalf of the Attorney General and stayed.

26.5.2 Private Prosecutions in the Provinces
As noted above, the Attorney General of Canada has a limited authority to
intervene in private prosecutions in the provinces. Where such authority
exists, it should be exercised on the same basis as outlined in s. 26.5.1

The Government of Canada may still have an interest in certain proceedings.
Many private prosecutions are commenced on the basis of an enforcement
scheme found in regulatory enactments such as the Fisheries Act. Charges of
this nature ought to be brought to the attention of the Regional Director,
as it may be appropriate to bring enforcement or policy concerns to the
attention of the Attorney General of the province so that provincial
authorities can then make an informed decision about intervening.

26.6 Consultation With Senior Management
Where an issue concerning the conduct or potential termination of a private
prosecution needs to be resolved, Crown counsel should refer the matter to
the Senior Regional Director who, in cases of particular public interest,
should confer with the Assistant Deputy Attorney General (Criminal Law)
before making a decision.

26.7 Case References
Re Bradley and The Queen (1975), 9 O.R. (2d) 161 (Ont. C.A.): Where the
interests of justice require, the Attorney General may intervene and take
over a private prosecution of a summary conviction offence.

MacIssac v. Motor Coach Ind. Ltd., [1982] 5 W.W.R. 391 (Man. C.A.): Since
the word "prosecutor" includes the informant or counsel for the informant,
it is incontestable that a private prosecution can take place in the absence
of intervention by the Crown.

Re Hamilton and The Queen (1986), 30 C.C.C. (3d) 65 (B.C.S.C.): An
intervention by the Attorney General in a private prosecution does not
contravene section 7 of the Charter.

Campbell v. A.G. of Ontario (1987), 31 C.C.C. (3d) 289; aff'd. 35 C.C.C.
(3d) 480 (C.A.): The court cannot review a decision by the Attorney General
to stay a private prosecution, absent flagrant impropriety.

Re Faber and the Queen (1987), 38 C.C.C. (3d) 49 (Que. S.C.): A decision to
stay does not infringe sections 7 or 15 of the Charter.

Chartrand v. Quebec (Min. of Justice) (1986), 55 C.R. (3d) 97 (Que. S.C.):
Ministerial decisions, whether based on a statute, a prerogative, or the
common law, are reviewable by virtue of section 32 of the Charter.
Therefore, the Attorney General's decision to intervene and stay a private
prosecution is also reviewable.

R. v. Cathcart and Maclean (1988), 207 A.P.R. 267 (N.S.S.C.): A superior
court judge does not need to approve a private prosecution of a hybrid
offence. An order under subsection 504(3) [now subsection 574(3)] of the
Criminal Code is required only after the accused has been committed to stand
trial on an indictable offence.

Osiowy v. Linn (1988), 67 Sask. R. 215 (Sask. Q.B.), sub nom. R. v. Osiowy
(1989), 50 C.C.C. (3d) 189 (Sask. C.A.): The Attorney General's discretion
to intervene and stay a private prosecution was upheld.

Kostuch (Informant) v. Alberta (Attorney General) (1995), 101 C.C.C. (3d)
321 (Alta. C.A.): The court will not interfere with the Attorney General's
exercise of discretion to intervene in a private prosecution unless there
has been a "flagrant impropriety".

Werring v. B.C. (Attorney General) (1997), 122 C.C.C. (3d) 343 (B.C.C.A.):
An informant seeking judicial review of Attorney General's decision to stay
a private prosecution is not entitled to cross-examine the prosecutor who
entered the stay without showing a basis for the belief that such
cross-examination would show flagrant impropriety by the Crown

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