The spectre of a rogue financial planner being sentenced to a lengthy prison term while victims a left to their own devices to replace hard earned life savings is unfortunately becoming commonplace in our society. When losses such as this occur it behoves us to ask the question: How can we protect ourselves?
At Allan & Snelling LLP we have experience assisting clients who have been victims of fraud, or just plain negligence at the hands of so called advisors. Our Ottawa injury Lawyers have experience working for victims of financial injuries. We have assisted clients in obtaining compensation not from the actual wrongdoer, but from the Institution or Companies which they represent. It is a complicated area of law, touching on issues of agency and vicarious liability which will be determined by the unique facts of each case.
The case involving Bruce ELmore is troublesome in that he is reported to have held himself out as an advisor while not even licenced.
Where there can be no sure way to insulate yourself from fraud, much less negligence, there are some basic principals which should be borne in mind:
1. Only deal with licenced advisors who associate themselves with established institutions or companies. A quick perusal of the business card should indicate whether or not the individual you are dealing with has a credible affiliation;
2. Read everything that you sign, or at least carefully read the BOLD PRINT; and,
3. Keep copies of everything that you sign.
If you demonstrate diligence in the manner outlined above you stand a good chance of avoiding an unlicenced scam artist. They are often found out once you inquire of their licenced status. Furthermore, an attentive client who reads what is provided to him carefully is the sort of person most fraudsters stay clear of.
If you suffer a loss owing to negligence or fraud at the hands of an advisor or sales person who is licenced in Ontario, chances are there will be insurance available to respond to your claim. In the event there is not, the institution or company with which the advisor is affiliated may be responsible owing to the legal doctrine of agency.
It is likely that any victim will benefit from the assistance of a Lawyer to determine their options in the face of financial loss.
You may have heard the term "Fiduciary" or "Fiduciary Duty" used with respect to legal claims. A fiduciary is an individual who acts on behalf of another, whom we may refer to as a beneficiary. The relationship is characterized by the beneficiary being vulnerable to the fiduciary and reposing in her or him trust. As a result a fiduciary is charged with obligations of utmost good faith, prudence, and trust.
These obligations manifest requirements which include the fiduciary's duty to place the interest of beneficiaries ahead of their own, avoid conflicts of interest, disclose profits made arising from their fiduciary position, and to exercise prudence in carrying out the responsibilities of their office. Common examples of fiduciaries are Parents, Trustees, Directors of corporations, and in certain cases Financial Advisors.
When a fiduciary breaches one or more of these obligations there may be an action for breach of a fiduciary duty. A good example of facts giving rise to such a circumstance are discussed in the following article:
In this case an accountant was held to account for a breach of fiduciary duty. Part of the compensation he was ordered to pay arose from an order for disgorgement of profits (a commission) which he did the work to earn, but failed to advise the beneficiary of in advance of collecting.