V-1.1 - Securities Act

Section 225.33 Disposition versions

2007-11-09

225.33. Unless the plaintiff proves that the defendant, other than the issuer, authorized, permitted or acquiesced in the release of the document or making of the public oral statement containing the misrepresentation, or the failure to make timely disclosure, while knowing it to be a misrepresentation or a failure to make timely disclosure, the damages payable are the lesser of

(1)  the amount determined under section 225.28 or 225.29; and

(2)  the maximum amount determined under the second paragraph less any damages the defendant has been ordered to pay by a judgment that has become res judicata in any other actions brought against the defendant under this division or comparable provisions of extra-provincial securities laws within the meaning of section 305.1 in respect of the same misrepresentation or failure to make timely disclosure, and less any amount paid in settlement of such actions.

For the purposes of subparagraph 2 of the first paragraph, the maximum amount is,

(1)  in the case of the issuer or an influential person that is not a natural person, the greater of 5% of its market capitalization and $1,000,000;

(2)  in the case of a natural person other than an expert, the greater of 50% of the aggregate of that person’s compensation from the issuer and its affiliates and $25,000 or, if the person is a director or officer of an influential person, the greater of 50% of the aggregate of that person’s compensation from the influential person and its affiliates and $25,000; and

(3)  in the case of an expert, the greater of the revenue that the expert and the affiliates of the expert earned from the issuer and its affiliates during the 12-month period preceding the misrepresentation and $1,000,000.

For the purposes of subparagraph 2 of the second paragraph, “compensation” means compensation received during the 12-month period immediately preceding the day on which the misrepresentation was made or on which the failure to make timely disclosure first occurred, together with the market value of all deferred compensation including, without limitation, options, pension benefits and stock appreciation rights, granted during the same period, valued as of the date that such compensation is awarded.

2007, c. 15, s. 11.