The Ontario Securities Commission (“OSC”) recently released a research study on the investment habits of millennials, entitled “Missing Out: Millennials and the Markets” (the “Study”). The Study was conducted online between May 5th and 12th, 2017 among a representative sample of 1,585 Ontarians, 18 to 36 years old. It finds that 80% of millennials are saving, but less than 50% are investing.

Many millennials, like myself, first entered the job market right around the time of the 2008 financial crisis. This was a scary time to start investing. It was a period in which enormous investment banks collapsed and financial institutions had to be bailed out. In 2011, the market experienced another slight downturn. Many were wary, despite cheap investment opportunities.

In recent years, markets have performed much better, with many benchmark indices currently sitting at or near all-time record highs. Yet the majority of millennials in Ontario still do not invest. Rather, the Study finds, millennials have other priorities such as paying off debt or buying a home.

Key Highlights from the Study:

• 80% of millennials are savers. Of those who have savings, over 70% set money aside every month or with every pay cheque.
• Only 47% are investing. Of those who invest, 42% have portfolios worth less than $25,000. Mutual funds (42%) are the most commonly held product.
• 59% stated that a lack of understanding about investing was a contributing reason for not investing. Only 14% reported being “very” familiar with investing.
• Just 13% of millennials have a formal written financial plan to meet their financial goals.
• Millennials have other financial priorities: planning for retirement was the top priority for fewer millennials than buying a home, supporting immediate family, or paying off student debt. Although incomes are rising, the cost of tuition, rent and other expenses are rising faster.

The full survey results can be found here.

What this means for investment professionals: Millennials make up the largest component of Canada’s labour force (approximately 37% as of 2015), and hold close to a trillion dollars in assets. If millennials are saving but not investing, that has big implications for financial advisors and portfolio managers.

Sixty-seven percent of those who do not invest say they are planning to start within the next five years. That is a potentially huge opportunity for the industry.

However, many millennials do not trust industry professionals and institutions. Thirty percent of those surveyed reported not trusting big banks or investment firms with their money. Only about 50% of those who invest currently work with a financial advisor, and only 16% work with a portfolio manager.

The main reasons cited by millennials for not working with an advisor were the high cost of fees, confidence in their own skills, and the belief that their portfolio was too small.

Nearly 40% of those who invest currently use online discount brokerages. With all sorts of easy-to- invest websites and apps popping up, this number is likely to increase in the future.

The Study suggests that financial technology (“Fintech”) tools that help narrow down investing options and find opportunities to invest smaller amounts could, in time, play a key role in encouraging millennials to invest. Millennials have an appetite for using technology and enjoy the “do-it-yourself” approach.

However, the Study also finds that Canadian millennials have been slower to adopt Fintech than millennials in other countries (22.5% worldwide, as opposed to only 14.9% in Canada), and that Ontario millennials continue to use traditional advice channels.

The Takeaway: If millennials continue to show aversion towards investing, there could be long- term effects on the financial industry, and the economy as a whole. Governments, regulators, and private players in the industry may need to adjust to slower market activity.

My personal belief, however, is that as we millennials continue to mature and accumulate wealth, our desire to invest will increase. To capitalize, the Study suggests that advisors and portfolio managers need to gain the trust of a group that is predisposed against them. Financial institutions may also need to look for creative, technological ways to cater to a generation that is comfortable getting its investment advice online.

Financial professionals have plenty of incentives to analyze the results of the Study (and others like it), in order to gain long-term insights and figure out how they can address millennials’ concerns about investing.

The Supreme Court of Canada’s (“SCC”) decision in Wilson v Alharayeri confirms that corporate directors, as opposed to the corporation itself, may be held personally liable in cases of oppressive conduct. The SCC held that the case was appropriate for assigning a personal remedy and affirmed an order holding two directors personally liable for the payment of $648,310 to a minority  shareholder.

This note summarizes the decision and highlights how directors may practically avoid this type of liability.

Background

From 2005 to 2007, Mr. Alharayeri (“Mr. A”) was the President and CEO, as well as a significant minority  shareholder and director of a company (the “Company”) that was incorporated under the Canada Business Corporations Act (“CBCA”). The Company was experiencing financial difficulties and began negotiations in order to merge with another entity (the “Buyer”). During these negotiations, Mr. A entered into discussions and signed an agreement with the Buyer to sell some of Mr. A’s own common shares of the Company. The board of directors of the Company (the “Board”) learned of Mr. A’s proposed sale and Mr. A ultimately resigned from his position as  President and CEO and director. Mr. A was replaced as President and CEO by Mr. Wilson (“Mr. W”), who also indirectly owned preferred shares of the  Company.

After Mr. A’s resignation, the Board sought to address the Company’s continuing financial difficulties by issuing a private placement to certain existing common shareholders. The private placement had the effect of substantially diluting the shareholdings of any common shareholder who did not participate in  it.

Before issuing the private placement, the Board accelerated the conversion of the preferred shares owned by Mr. W into common shares. The conversion was completed despite doubts expressed by the auditors that the requisite  financial tests had been met. At the same time, the Board refused to convert Mr. A’s preferred shares into common shares, even though those shares met the requisite financial tests. As a result, Mr. A could not participate in the private placement and his common shareholding was substantially diluted.

Mr. A filed an application under Section 241 of the CBCA seeking relief from oppression against four of the Company’s directors, including Mr. W and Mr. Black (“Mr. B”), who was another shareholder and the chairperson of the audit committee. Importantly, the audit committee was only comprised of Mr. W and Mr. B.

The trial judge found that oppressive conduct did occur and held that Mr. W and Mr. B had used their influence as the only members of the audit committee to advocate against the conversion of Mr. A’s preferred shares. Mr. W and Mr. B (but not the other two directors) were found personally liable to pay damages to Mr. A.

The SCC upheld the decision of the trial judge and found that the imposition of personal liability against Mr. W and Mr. B was a fair way of rectifying the oppression Mr. A had suffered. The SCC also affirmed the Québec Court of Appeal decision holding Mr. W and Mr. B personally liable for the payment of damages sustained by Mr. A.

SCC Decision

In its reasons, the SCC declined to limit a director’s personal liability to the traditional principles at common law, namely, bad faith and using the corporation to advance personal  interest.

The SCC also confirmed the two-pronged test for the determination of personal liability of directors under the CBCA set out by the Ontario Court of Appeal in Budd v. Gentra Inc. (“Budd”). Under Budd, the first prong requires that the oppressive conduct be properly attributable to the director because he or she was implicated in the oppression. The second prong requires that the imposition of personal liability be a fit remedy in all the   circumstances.

Because “fitness” is an undefined concept, the SCC distilled four general principles to guide courts in determining whether it is appropriate to assign personal liability to a director under the  CBCA:

1. the oppression remedy must itself be a fair way of dealing with the situation;
2. the order assigning personal liability should go no further than necessary to rectify the oppression;
3. a finding of personal liability may serve only to vindicate the reasonable expectations of security holders, creditors, directors or officers in their capacity as corporate stakeholders; and
4. the court should consider the general corporate law context in exercising its remedial discretion because director liability cannot be a surrogate for other forms of statutory or common law remedies that may be more fitting under the   circumstances.

Best Practices for Business

The decision confirms that corporate directors can be personally liable in oppression actions, so long as the imposition of liability is a “fit in all the circumstances” and the director is personally implicated in the oppressive conduct. The decision is also significant because it creates a standard national framework to determine when directors may be held personally liable for corporate oppression.

While the decision highlights how a court’s decision to grant relief under the oppression remedy is necessarily fact- specific, directors can take away few lessons:

• directors should review their director liability indemnification clauses to determine what type of conduct may (or may not) be covered;
• directors should declare all of their potential conflicts of interest and ensure that other members of the board of directors do the same;
• directors should always record their dissent from objectionable decisions of the board of directors;
• directors should not refrain from open discourse within the board of directors; and
• directors must understand that a lack of personal benefit or bad faith is not necessarily a complete defence to personal liability.

Technology is wonderful. Laptop computers are getting lighter. Storage capacity on laptop computers, smartphones, USB keys and other electronic devices are up in the terabytes. What this means is that everyone, including lawyers, can travel with vast amounts of personal data and client documents dating back to or before the purchase of an electronic device.

From one electronic device, you (or the Canada Border Services Agency), U.S. Customs and Border Protection and other border officers can access every email, text message, document, bank statement, health report, credit card statement, invoice, photo, contact, calendar entry, call history, voicemail message, to-do notation, book, magazine, internet search, app data, Facebook post, Twitter post, Netflix download history, stored password and other information stored on your electronic device.

If your electronic device has GPS, the geo-locations of your travels can be downloaded. Your electronic device may be cloud enabled and may synchronize with or open the door to data stored elsewhere (that is not on the electronic device with which you are travelling). Certain deleted data can be retrieved with relative ease.

A single handheld electronic device or laptop can store more than what used to be in luggage. The Customs Act is outdated and has not been modernized to reflect modern technology. Law-abiding citizens do not even think about the information on their electronic devices until the CBSA asks them to write their password down on a piece of paper and they disappear with their electronic device into a back room without them. As the CBSA officer walks away with all of your personal information, you finally ask the important question, “Can they do that?”

And then the door shuts and you have no opportunity to stop the intrusive and invasive search of your electronic device.

If you travel frequently across borders, you may have questions.

For example, what is the CBSA’s policy (Operational Bulletin PRG-2015-31) concerning examinations of electronic devices? There is a policy that has not been posted on the CBSA website but that I have obtained that says the CBSA has the authority to search electronic devices and may look at any email, document, text, photo, etc. as it considers electronic documents to be goods.

You may also ask yourself what the CBSA’s policy is concerning examinations of solicitor-client privilege materials. There is also a short policy (Operational Bulletin PRG-2014-07) that has not been posted on the CBSA website but that I have obtained that says CBSA officers will normally respect solicitor-client privilege but will make decisions on a case-by-case, document-by-document basis.

Other questions may focus on if the CBSA respects solicitor-client privilege. For that, the answer is maybe. Operational Bulletin PRG-2014-07 states that “only documents . . . marked ‘Solicitor/Client Privilege’ or are addressed to/from a law firm, or a lawyer’s office, or where the documents are carried by a lawyer or notary in physical or electronic format and solicitor-client privilege is claimed or asserted . . . are potentially privileged.” The CBSA officer adjudicates whether privilege applies.

Another important area for scrutiny is if there is there a procedure to have someone else review solicitorclient privileged documents. The answer is yes, but you will have to deposit your electronic device in a sealed evidence bag and leave your electronic device with the CBSA for an indefinite period of time. Operational Bulletin PRG-2014-07 does not set out the procedure. There must be another CBSA officer to observe the process and sign a completed IMM 5242B form and the electronic device must be placed in a sealed evidence bag.

This includes questions around whether the CBSA should access emails and texts that arrive while the CBSA is examining your smartphone or laptop. The answer is no. Operational Bulletin PRG-2015-31 requires that the CBSA set your electronic device to “airplane mode.”

It also includes queries about how to proceed if the CBSA asks for the password to webmail or to access documents stored in the cloud. The answer is that the CBSA should only examine goods in your possession at the time you cross the border. But what happens at the border may be different from what is in the bulletin.

You may wonder what to do if the CBSA asks you to access bank records and credit card statements by going into websites. The CBSA should only examine goods in your possession at the time you cross the border, not go on a fishing expedition through your intimate and personal information.

Lastly, one may wonder if the CBSA needs to have reasonable suspicion before examining an electronic device. The answer, in my opinion, is that currently the CBSA just asks to examine the device and does not have to state the reason for asking or state what it will be looking for. The threshold for such examinations is significantly lower than what the police require to obtain a search warrant. The CBSA does not need a search warrant to examine your electronic device. This also extends to your password.

Martin Bolduc, vice president of the Programs Branch of the CBSA, testified before the House of Commons Standing Committee on Access to Information, Privacy and Ethics in September that the CBSA may arrest a person who does not provide a password when requested. The CBSA’s position is that s. 13 of the Customs Act requires that a traveller answer all questions and, therefore, if the CBSA officer asks for a password, it must be provided.

In his testimony, Bolduc was very clear — the CBSA takes the position it has the authority to look at anything you have on your electronic devices. If you do not want the CBSA to look at specific information, do not have it on your electronic devices. So, ask the right questions before you travel with your electronic devices.

Cyndee Todgham Cherniak is a customs lawyer at LexSage Professional Corporation, a boutique international trade and sales tax law firm.

An Ontario Superior Court judge has ruled that defence counsel cannot disseminate disclosure they receive to the media.

In R. v. Mossaddad, Justice Mark Edwards found defence counsel cannot share Crown disclosure for reasons unrelated to defending the criminal proceedings.

Lawyers say the decision has implications for what criminal defence counsel can do with the disclosure they receive from Crowns before trial.

The ruling was on an application by criminal defence lawyer Daniel Brodsky, who requested direction from the court after his client, Cameron Mossaddad, instructed him to share disclosure with the media.

“The defence bar fought long and hard to enlist courts to enforce the right to reasonable disclosure,” Brodsky says.

“But the questions of what we do with the disclosure and are permitted to do with the disclosure, the answers to those questions are not as clear as you might think.”

Brodsky’s client is accused of murdering his grandmother, but he claims he has been framed.

Brodsky says Mossaddad wants to share the disclosure with the media in the hope that it would further an investigation that would help his case.

The question of whether counsel is bound by a deemed undertaking not to disseminate disclosure to the public had not been specifically addressed in Ontario’s jurisprudence before Edwards’ ruling.

Edwards, therefore, had to reach outside of Ontario and consult decisions from other provinces for guidance on whether there is an implied undertaking.

“I am satisfied, having reviewed the jurisprudence across this country, that the time has come for this court to recognize that whether or not the Crown disclosure provided to defence counsel for a self- represented accused is the subject of a written undertaking, that a deemed undertaking nonetheless would apply such that the only basis upon which the Crown disclosure may be used would be in the context of providing a full answer and defence to the criminal proceedings,” Edwards wrote in the decision.

Edwards found that if defence counsel has received disclosure that is not the subject of a written undertaking, a deemed undertaking nonetheless applies, and it should not be disseminated to the public without further direction of the court.

Lawyers say the implied undertaking begins as soon as disclosure is received and continues indefinitely.

This means that lawyers would not be able to share disclosure with the media or the public even after a trial has concluded, unless disclosure becomes an exhibit at trial and there is no publication ban.

Edwards ruled that Brodsky had no legal basis to share disclosure with the media, as there was an absence of evidence from Mossaddad that showed the explicit purpose for disseminating such information.

“If defence counsel or an accused has received disclosure that is not the subject matter of a written undertaking, I am of the view that a deemed undertaking nonetheless applies to such disclosure and no use may be made of such disclosure outside of the context of the criminal proceedings without further direction from the court,” the ruling also notes.

Criminal defence lawyer Amanda Ross says the decision is helpful as it brings some clarity that would have otherwise been lacking. She says that in her practice she has always interpreted use of Crown disclosure as being subject to an implied undertaking, even in the absence of a written one.

She says that the written undertaking has almost served as a reminder for counsel, students and self- represented accused as to what their obligations are. She says that in some courthouses, written undertakings will come with every piece of disclosure and in others it will only be received at the beginning of a case.

Ross says this case provides some good guidance to lawyers as to why disclosure cannot be shared with the public.

“I think that it provides a place to hang your hat, because in some cases, there are questions clients have for you that can be difficult to answer because there is always a competing interest in every criminal case,” she says of the decision.

“You have an obligation to your client obviously to vigorously defend him or her, uphold his rights and advance their case against the state. And at the same time, as lawyers, we’re all officers of the court and so there can be some conflict there.”

She adds that having judicial input on issues like this is helpful for lawyers so that they can explain to their clients why they cannot do something they are instructing them to do.

For Brodsky, however, the decision is not the end of the issue.

He says there are a lot of remaining questions around disclosure and that the decision brings the issue to the attention of other judges and the bar so that these issues can be litigated and resolved.

“It really does demonstrate that there’s still a long way to go,” he says.

If his client is ultimately unsuccessful at trial, Brodsky says the issue of what he could do with disclosure could be brought up in an appeal.

Ross says following this decision, defence lawyers will be very hard-pressed to say they did not know they were not allowed to release disclosure to outside party or to publicize pieces of disclosure.

“This decision is a very firm warning to be very careful and circumspect in how you deal with disclosure,” she says.

For today’s lawyer, time is perhaps the most precious commodity. That is why we at Infoware have designed our legal practice management software to save legal professionals up to 49 minutes a day. While legal document automation has advanced the way lawyers create custom legal documents, there are still many other time wasting activities that serve as a plague to every law office in the country.

The truth is, every task we do has the opportunity to be made more efficient. Emailing is the number one form of communication among lawyers, and also one of the biggest time wasters. According to a Huffington post survey, workers in the U.S. spend an average of 6.3 hours a day checking email. Even though email has been around for decades, we haven’t been able to become efficient at it. 

If you are sick of seeing 200 unread email notifications and mundane office memos being marked as urgent, you need to become a champion of an emailing strategy. That’s why we put together a list of ways you can start reducing your time spent in your email inbox today.

1. Purge

In order to start managing your inbox effectively, you first need to purge all non-essential emails. Unsubscribe to those non-relevant newsletters and turn off Facebook and Twitter email notifications. After dealing with an overwhelming number of email notifications, getting off to a fresh start with zero unread emails looks and feels great.

2. Handle Emails Once

Skimming emails and then coming back to them a second time is a huge time waster but it is also easy to become a victim of hundreds of unread emails. After reading an email, get into the habit of filing it, flag it, mark it as read, or delete it to ensure your inbox doesn’t become overwhelming.

Pro Tip:  You can easily click once on a flag to generate a “red” flag.  This not only marks the email for future reference but tags it in your “To Do” list.  If you right click on the flag, you can then prioritize it and even add a reminder!

3. Keep personal and work emails separate

Many use their work email for personal matters. There are a couple of reasons why this isn’t considered best practice. Just ask Hillary Clinton. Many companies are able to review their employees emails for one. Additionally, when personal emails combine with work emails in your inbox, the total number of unread emails becomes all the more daunting.

4. Improve overall communication

People in your office wouldn’t be sending several emails to each other if there weren’t proper protocols in place. If Meredith doesn’t know who has the right authority to sign off on her legal document, she could ask several people before she finds the right person. When communication coming from the top is ambiguous, your coworkers will be left with far more questions to ask and likely more emails to send.

5. Email organization

Every client is important, but some projects are more pressing than others. When we’re expecting an important email, we will end up checking our inbox every time we get a notification. This process can not only become time-consuming, but annoying as well.

When you take the time to sort and prioritize your email inbox, you can choose to get notifications from specific clients, and mute certain notifications like office memos and other less-urgent emails.

Setting up Rules and Creating folders for specific email topics or senders is a fast way to file newsletters, client emails, and other electronic correspondence.  Just remember to review each folder for unread messages.  If there is a number following a folder name, that indicates the number of unread messages in that folder.

Pro Tip: Outlook offers great ways to save time.  Did you know that you can drag and drop a contact name onto your Inbox Icon to create an email to the contact person?  Or even better, if you receive an email with details about your upcoming meeting, you can drag and drop the email onto your calendar icon to copy the contents of that email into a calendar entry.  All you have to do is put in the correct date and time and you have all the email information copied in the calendar entry where you really need it.

6. Email smarter

In many instances, several back-and-forth emails can be replaced by one. For example, after a long meeting, some co-workers may go on to the next project with a completely different interpretation of what was discussed. When the note taker sends a definitive rundown email after the meeting your coworkers will be more likely to get on the same page, resulting in many emails trying to figure out what was discussed. Taking the time to send clearer and more detailed emails, can limit the amount of emails your have to responds

7. Try more face-to-face & over the phone

While these options aren’t always the most practical choice, it can be the most effective in certain situations. When emails start going back-and-forth, it can become very time-consuming. In most cases, a simple discussion with the co-worker across from you or a quick phone call could save some valuable time.

8. Schedule email time

When we’re constantly checking and responding to emails, projects that take one hour can easily take three. By either devoting certain parts of the day to answering emails, or turning off emails altogether when doing tasks, you can focus and expect time spent on things like drafting legal documents and conducting research, to be far more effective.

Pro Tip: Turn off email notifications as they can become distracting when trying to focus on other tasks.  We suggest reviewing your Mail Options and turning off your notifications to avoid the lure of that new email arriving in your inbox every 5 minutes.