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CANADIAN CASES on the LAW of TORTS Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence Canadienne En Responsabilit´E Civile VOLUME 24 (Cited 24 C.C.L.T

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CANADIAN CASES on the LAW of TORTS Fourth Series/Quatri`Eme S´Erie Recueil De Jurisprudence Canadienne En Responsabilit´E Civile VOLUME 24 (Cited 24 C.C.L.T CANADIAN CASES ON THE LAW OF TORTS Fourth Series/Quatri`eme s´erie Recueil de jurisprudence canadienne en responsabilit´e civile VOLUME 24 (Cited 24 C.C.L.T. (4th)) EDITOR-IN-CHIEF/REDACTEUR´ EN CHEF John Irvine, M.A., B.C.L. FACULTY OF LAW, UNIVERSITY OF MANITOBA WINNIPEG, MANITOBA ASSOCIATE EDITOR/REDACTEUR´ ADJOINT Robert P. Kouri, B.A., L.L.L., M.C.L., D.C.L. FACULTE´ DE DROIT, UNIVERSITEDE´ SHERBROOKE SHERBROOKE, QUEBEC´ CARSWELL EDITORIAL STAFF/REDACTION´ DE CARSWELL Cheryl L. McPherson, B.A.(HONS.) Director, Primary Content Operations Melissa Vieira, B.A., LL.B., CIPP/C Product Development Manager Nicole Ross, B.A., LL.B. Julia Fischer, B.A.(HONS.), LL.B. Supervisor, Legal Writing Supervisor, Legal Writing Anne Simpson, B.A., M.L.S., LL.B. Martin-Fran¸cois Parent, LL.B., Lead Legal Writer LL.M., DEA (PARIS II) Bilingual Legal Writer Bridget Mak, B.A.(HONS.), LL.B. Annie Chan, B.A. Senior Legal Writer Content Editor CANADIAN CASES ON THE LAW OF TORTS, a national series of anno- Recueil de jurisprudence canadienne en responsabilit´e civile, une s´erie nationale de recueils tated topical law reports, is published 12 times per year. Subscription rate de jurisprudence sp´ecialis´ee et annot´ee, est publi´e 12 fois par ann´ee. L’abonnement est de 478 $ $478.00 per bound volume including parts. par volume reli´e incluant les fascicules. Editorial Offices are also located at the following address: 430 rue St. Pierre, Le bureau de la r´edaction est situ´e a` Montr´eal — 430, rue St. Pierre, Mon- Montr´eal, Qu´ebec, H2Y 2M5. tr´eal, Qu´ebec, H2Y 2M5. ________ ________ © 2016 Thomson Reuters Canada Limited © 2016 Thomson Reuters Canada Limit´ee NOTICE AND DISCLAIMER: All rights reserved. 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Si vous avez counting, or other professional advice. If legal advice or other expert assis- besoin d’un avis juridique ou d’un autre avis professionnel, vous devez tance is required, the services of a competent professional should be sought. retenir les services d’un avocat ou d’un autre professionnel. Les analyses The analysis contained herein should in no way be construed as being either comprises dans les pr´esentes ne doivent etreˆ interpr´et´ees d’aucune fa¸con official or unofficial policy of any governmental body. comme etant´ des politiques officielles ou non officielles de quelque organ- isme gouvernemental que ce soit. 8 The paper used in this publication meets the minimum requirements of 8 Le papier utilis´e dans cette publication satisfait aux exigences minimales American National Standard for Information Sciences — Permanence of Pa- de l’American National Standard for Information Sciences — Permanence of per for Printed Library Materials, ANSI Z39.48-1984. Paper for Printed Library Materials, ANSI Z39.48-1984. ISSN 0701-1733 ISBN 978-0-7798-5593-3 Printed in Canada by Thomson Reuters CARSWELL, A DIVISION OF THOMSON REUTERS CANADA LIMITED One Corporate Plaza Customer Relations 2075 Kennedy Road Toronto 1-416-609-3800 Toronto, Ontario Elsewhere in Canada/U.S. 1-800-387-5164 M1T 3V4 Fax 1-416-298-5082 www.carswell.com Contact www.carswell.com/contact Livent Inc. (Receiver of) v. Deloitte & Touche 177 [Indexed as: Livent Inc. (Receiver of) v. Deloitte & Touche] Livent Inc., Through its Special Receiver and Manager Roman Doroniuk, Plaintiff (Respondent/Appellant by Cross-Appeal) and Deloitte & Touche and Deloitte & Touche LLP, Defendants (Appellant/Respondent by Cross-Appeal) Ontario Court of Appeal Docket: CA C58659 2016 ONCA 11 G.R. Strathy C.J.O., R.A. Blair, P. Lauwers JJ.A. Heard: March 23-26, 2015 Judgment: January 8, 2016 Civil practice and procedure –––– Actions — Cause of action — Ex turpi causa non oritur actio (denial of right of action for illegality or immoral- ity) –––– GB and MG created and developed corporation L, which developed high-profile stage productions — In 1998 new management discovered GB and MG had been fraudulently manipulating financial records to inflate profitability to attract investors — L filed for insolvency protection, was placed in receiver- ship and its assets sold — GB and MG were convicted of fraud — D company was auditor for L from 1989 to 1998 — L, through special receiver, sued D for negligence — Trial judge found D not negligent in respect of pre-1996 audits but negligent in respect of 1996 audit although negligence caused no damage — D found liable for damages arising from negligence in fall 1997 and spring 1998 — D appealed from judgment finding them negligent — L cross-appealed from portion of judgment finding that D was not negligent — D’s appeal and L’s cross-appeal dismissed — D’s submission that losses were not L’s losses impermissibly conflated damages sustained by corporation with distribution of damages, once recovered, to creditors — Trial judge did not err by failing to recognize that frauds perpetrated by L’s principals and senior managers perme- ated corporate structure such that L was identified with impugned conduct (cor- porate identification) or in rejecting argument that ex turpi causa doctrine should be applied to prevent L from profiting from own criminal acts — Ex turpi causa doctrine applies only where allowing plaintiff’s claim would introduce inconsis- tency into fabric of law and does not give court discretion to withhold civil rem- edy merely because plaintiff engaged in misconduct — Corporate identification doctrine not free-standing legal rule but rather facilitates application of rules of law to corporation where primary rules of attribution not available — Corporate identification doctrine could not be used to attribute frauds of GB and MG to L in order to allow ex turpi causa defence — To do so would deprive innocent participants of remedy for auditor’s negligence where services of auditor most important i.e. where fraud by high-level management — Nor would it be neces- 178 CANADIAN CASES ON THE LAW OF TORTS 24 C.C.L.T. (4th) sary to invoke defence to maintain integrity of justice system — Actual fraud- sters would not profit from wrongdoing nor would L — D was under obligation to have proper auditing procedures in place to reduce risk of not detecting mate- rial misstatements — Applying ex turpi causa would risk undermining value of public audit process and integrity of justice system.
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