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ARTICLE · 12 SEPTEMBER 2018

Auditor Liability Revisited: Lavender v. Miller Bernstein LLP

Borden Ladner Gervais LLP
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Several common issues were certified on consent, including inter alia whether the auditor owed a duty to the class and, if so, whether it breached that duty.

CanadaCorporate/Commercial Law

Background

The decision related to a summary judgment motion brought in the context of a class action by the clients of a defunct securities dealer against the dealer's former auditor (see our Exchange post, September 7, 2017, for further detail). It was alleged that the auditor negligently audited an annual registration renewal form required to be filed with the Ontario Securities Commission ("OSC") to confirm regulatory compliance. It was contended that, as a result of this alleged failure, the OSC was deprived of information that would have caused it to intervene in the dealer's operations and thus prevent the class's losses.

Several common issues were certified on consent, including inter alia whether the auditor owed a duty to the class and, if so, whether it breached that duty. The representative plaintiff in turn moved for summary judgment on these questions, amongst others. The motion judge granted summary judgment, holding that the auditor owed the class

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