CEF/DIL: LCC et al v ASC – Decision

LCC, EnCharis, and related applicants that are named in the pending representative action lawsuits have been trying to get the ASC to delay hearing their case against the five named respondents regarding alleged breaches of Alberta securities laws because they believe ASC’s hearing could harm their ability to defend against the representative actions.

First they tried to get the ASC to hit the “pause” button until the representative action had completed – on Feb 28, 2019 the ASC denied their application.

A few months later the applicants filed an appeal of this decision with the Court of Queens Bench of Alberta resulting in the ASC’s May, 2019 hearing date getting pushed back to Sept, 2019.

On April 30, 2019 the applicants appeared before the court to ask the following:

The applicants now seek a stay of the ASC hearing pending their appeal to this court of the ASC’s decision to not stay the hearing.

This is a somewhat convoluted sentence which I’ll try to clarify:

  1. The applicants asked the ASC for a stay of the hearing until the representative action had concluded
  2. The ASC dismissed their application
  3. The applicants filed to appeal this decision with the appellate court
  4. The applicants want the ASC’s hearing to be stayed until the applicants appeal of the ASC’s decision is decided.

On May 13, 2019 the Honourable Madam Justice Elizabeth Hughes handed down a decision dismissing their application for a stay.  In her decision Justice Hughes answered the following questions:

Is there a serious question to be tried? I will assume … that the applicants can establish a serious issue to be tried and therefore continue the analysis. 

Will the applicants suffer irreparable harm if the stay is not granted? I agree with the Staff that the harm alleged by the applicants is speculative. The submissions of the applicants are all “what if situations”. It is not uncommon for parallel proceedings to arise from a similar set of facts. Something more than the existence of parallel proceedings must be demonstrated to establish irreparable harm.

Does the balance of convenience favour granting a stay? The public interest in the ASC exercising its jurisdiction, coupled with the need to have this matter resolved in a timely fashion in light of the above three facts, establishes the balance of convenience is with the ASC proceeding with its hearing in September.

The Justice concludes her decision:

Accordingly, the applications for a stay are dismissed.


As I interpret all this the appeal of the ASC’s decision is still before the court but the applicants’ attempt to get the ASC’s hearing delayed until the appeal has completed has been denied.

Barring any other maneuverings or some other delays I’m hopeful the ASC hearing will proceed as scheduled this Sept, 2019.


This record also had some tidbits about the status of the representative actions:

  • 2016: Four civil actions commenced by District (CEF) and DIL depositors – 2 in BC and 2 in AB. These cases were stayed pending completion of the CCAA process.
  • The BC actions are stayed pending the conclusion of the AB actions.
  • March 11, 2019: A case management judge was appointed for both Alberta actions. The plaintiffs must file their materials for the certification application by July 31, 2019 but no date has been set for that application.
  • October 22, 2019: The next case management meeting

 

4 thoughts on “CEF/DIL: LCC et al v ASC – Decision

Add yours

  1. All of these appeals for delay, and appeals of appeals, and appeals pending the appeal of an appeal for a delay have got to be gravy trains for a bunch of lawyers (or whatever they’re called in Canada).

    And the serious charge time for lawyers at the actual lawsuit trials, and the ASC hearing on securities violations, and possible criminal trials, and the appeals following decisions in those cases is yet to come.

    One wonders where the funds to pay lawyers for handling the cases of a bunch of bankrupt entities and nonwealthy individuals are coming from.

    Does Canada have very generous public defender resources?

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  2. I believe the ABC District’s D&O insurance policy carrier is covering costs for all this legal work. The ASC hearing cost $50K for the prep time and that was only 2 days. The legal fees to prep for and then argue seven weeks of hearings in Sept – Nov will doubtless be breathtaking.

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