Acts and Regulations

S-5.5 - Securities Act

Section 149
Disposition versions

Full text
Liability for misrepresentation in prospectus
2012, c.31, s.6
149(1)Where a prospectus together with any amendment to the prospectus contains a misrepresentation, a purchaser who purchases securities offered by the prospectus during the period of distribution shall be deemed to have relied on the misrepresentation if it was a misrepresentation at the time of purchase and has a right of action for damages against
(a) the issuer or a selling security holder on whose behalf the distribution is made,
(b) every underwriter that is in a contractual relationship with the issuer or selling security holder on whose behalf the distribution is made,
(c) every director of the issuer at the time the prospectus or the amendment to the prospectus was filed,
(d) every person whose consent to disclosure of information in the prospectus has been filed, but only with respect to reports, opinions or statements that have been made by the person, and
(e) every person who signed the prospectus or the amendment to the prospectus other than the persons referred to in paragraphs (a) to (d).
149(2)Where the purchaser purchased the securities from a person referred to in paragraph (1)(a) or (b) or from another underwriter of the securities, the purchaser may elect to exercise a right of rescission against the person or underwriter, in which case the purchaser shall have no right of action for damages against the person or underwriter.
149(3)No person is liable under subsection (1) or (2) if the person proves that the purchaser purchased the securities with knowledge of the misrepresentation.
149(4)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) if the person proves
(a) that the prospectus or the amendment to the prospectus was filed without the person’s knowledge or consent and that, on becoming aware of its filing, the person gave reasonable general notice that it was so filed,
(b) that, after the issuance of a receipt for the prospectus and before the purchase of the securities by the purchaser, on becoming aware of any misrepresentation in the prospectus or an amendment to the prospectus, the person withdrew the person’s consent to it and gave reasonable general notice of the withdrawal and the reason for the withdrawal,
(c) that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the authority of an expert or purporting to be a copy of, or an extract from, a report, opinion or statement of an expert, the person had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that the part of the prospectus or the amendment to the prospectus did not fairly represent the report, opinion or statement of the expert or was not a fair copy of, or extract from, the report, opinion or statement of the expert,
(d) that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert, but that contains a misrepresentation attributable to failure to represent fairly the person’s report, opinion or statement as an expert,
(i) the person had, after reasonable investigation, reasonable grounds to believe and did believe that the part of the prospectus or the amendment to the prospectus fairly represented the person’s report, opinion or statement, or
(ii) on becoming aware that the part of the prospectus or the amendment to the prospectus did not fairly represent the person’s report, opinion or statement as an expert, the person advised the Commission and gave reasonable general notice that such use had been made and that the person would not be responsible for that part of the prospectus or the amendment to the prospectus, or
(e) that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or an extract from, a public official document, it was a correct and fair representation of the statement or copy of, or extract from, the document, and the person had reasonable grounds to believe and did believe that the statement was true.
149(5)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
149(6)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus or the amendment to the prospectus not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, a report, opinion or statement of an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
149(7)No underwriter is liable for more than the total public offering price represented by the portion of the distribution underwritten by the underwriter.
149(8)In an action for damages under subsection (1), the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the securities as a result of the misrepresentation relied on.
149(9)All or any one or more of the persons referred to in subsection (1) or (2) are jointly and severally liable, and every person who becomes liable to make any payment under this section may recover a contribution from any person who, if sued separately, would have been liable to make the same payment unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.
149(10)Where in a distribution of securities
(a) no receipt for a prospectus was issued,
(b) no exemption from filing a prospectus exists or was granted, and
(c) a misrepresentation existed in respect of the distribution,
each purchaser of the securities has a right of rescission or a right of action for damages as if a prospectus containing a misrepresentation had been filed in respect of the distribution.
149(11)In no case shall the amount recoverable under this section exceed the price at which the securities were offered to the public.
149(12)The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the purchaser may have at law.
149(13)If a misrepresentation is contained in a document incorporated by reference in, or deemed incorporated into, a prospectus, the misrepresentation shall be deemed to be contained in the prospectus.
2007, c.38, s.159; 2012, c.31, s.7
Liability for misrepresentation in prospectus
2012, c.31, s.6
149(1)Where a prospectus together with any amendment to the prospectus contains a misrepresentation, a purchaser who purchases securities offered by the prospectus during the period of distribution shall be deemed to have relied on the misrepresentation if it was a misrepresentation at the time of purchase and has a right of action for damages against
(a) the issuer or a selling security holder on whose behalf the distribution is made,
(b) each underwriter of the securities who is required by the regulations to sign a certificate required to be contained in the prospectus,
(c) every director of the issuer at the time the prospectus or the amendment to the prospectus was filed,
(d) every person whose consent has been filed as required by the regulations, but only with respect to reports, opinions or statements that have been made by the person, and
(e) every person who signed the prospectus or the amendment to the prospectus other than the persons referred to in paragraphs (a) to (d).
149(2)Where the purchaser purchased the securities from a person referred to in paragraph (1)(a) or (b) or from another underwriter of the securities, the purchaser may elect to exercise a right of rescission against the person or underwriter, in which case the purchaser shall have no right of action for damages against the person or underwriter.
149(3)No person is liable under subsection (1) or (2) if the person proves that the purchaser purchased the securities with knowledge of the misrepresentation.
149(4)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) if the person proves
(a) that the prospectus or the amendment to the prospectus was filed without the person’s knowledge or consent and that, on becoming aware of its filing, the person gave reasonable general notice that it was so filed,
(b) that, after the issuance of a receipt for the prospectus and before the purchase of the securities by the purchaser, on becoming aware of any misrepresentation in the prospectus or an amendment to the prospectus, the person withdrew the person’s consent to it and gave reasonable general notice of the withdrawal and the reason for the withdrawal,
(c) that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the authority of an expert or purporting to be a copy of, or an extract from, a report, opinion or statement of an expert, the person had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that the part of the prospectus or the amendment to the prospectus did not fairly represent the report, opinion or statement of the expert or was not a fair copy of, or extract from, the report, opinion or statement of the expert,
(d) that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert, but that contains a misrepresentation attributable to failure to represent fairly the person’s report, opinion or statement as an expert,
(i) the person had, after reasonable investigation, reasonable grounds to believe and did believe that the part of the prospectus or the amendment to the prospectus fairly represented the person’s report, opinion or statement, or
(ii) on becoming aware that the part of the prospectus or the amendment to the prospectus did not fairly represent the person’s report, opinion or statement as an expert, the person advised the Commission and gave reasonable general notice that such use had been made and that the person would not be responsible for that part of the prospectus or the amendment to the prospectus, or
(e) that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or an extract from, a public official document, it was a correct and fair representation of the statement or copy of, or extract from, the document, and the person had reasonable grounds to believe and did believe that the statement was true.
149(5)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
149(6)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus or the amendment to the prospectus not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, a report, opinion or statement of an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
149(7)No underwriter is liable for more than the total public offering price represented by the portion of the distribution underwritten by the underwriter.
149(8)In an action for damages under subsection (1), the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the securities as a result of the misrepresentation relied on.
149(9)All or any one or more of the persons referred to in subsection (1) or (2) are jointly and severally liable, and every person who becomes liable to make any payment under this section may recover a contribution from any person who, if sued separately, would have been liable to make the same payment unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.
149(10)Where in a distribution of securities
(a) no receipt for a prospectus was issued,
(b) no exemption from filing a prospectus exists or was granted, and
(c) a misrepresentation existed in respect of the distribution,
each purchaser of the securities has a right of rescission or a right of action for damages as if a prospectus containing a misrepresentation had been filed in respect of the distribution.
149(11)In no case shall the amount recoverable under this section exceed the price at which the securities were offered to the public.
149(12)The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the purchaser may have at law.
149(13)If a misrepresentation is contained in a document incorporated by reference in, or deemed incorporated into, a prospectus, the misrepresentation shall be deemed to be contained in the prospectus.
2007, c.38, s.159; 2012, c.31, s.7
Liability for misrepresentation in prospectus
149(1)Where a prospectus together with any amendment to the prospectus contains a misrepresentation, a purchaser who purchases securities offered by the prospectus during the period of distribution shall be deemed to have relied on the misrepresentation if it was a misrepresentation at the time of purchase and has a right of action for damages against
(a) the issuer or a selling security holder on whose behalf the distribution is made,
(b) each underwriter of the securities who is required by the regulations to sign a certificate required to be contained in the prospectus,
(c) every director of the issuer at the time the prospectus or the amendment to the prospectus was filed,
(d) every person whose consent has been filed as required by the regulations, but only with respect to reports, opinions or statements that have been made by the person, and
(e) every person who signed the prospectus or the amendment to the prospectus other than the persons referred to in paragraphs (a) to (d).
149(2)Where the purchaser purchased the securities from a person referred to in paragraph (1)(a) or (b) or from another underwriter of the securities, the purchaser may elect to exercise a right of rescission against the person or underwriter, in which case the purchaser shall have no right of action for damages against the person or underwriter.
149(3)No person is liable under subsection (1) or (2) if the person proves that the purchaser purchased the securities with knowledge of the misrepresentation.
149(4)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) if the person proves
(a) that the prospectus or the amendment to the prospectus was filed without the person’s knowledge or consent and that, on becoming aware of its filing, the person gave reasonable general notice that it was so filed,
(b) that, after the issuance of a receipt for the prospectus and before the purchase of the securities by the purchaser, on becoming aware of any misrepresentation in the prospectus or an amendment to the prospectus, the person withdrew the person’s consent to it and gave reasonable general notice of the withdrawal and the reason for the withdrawal,
(c) that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the authority of an expert or purporting to be a copy of, or an extract from, a report, opinion or statement of an expert, the person had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that the part of the prospectus or the amendment to the prospectus did not fairly represent the report, opinion or statement of the expert or was not a fair copy of, or extract from, the report, opinion or statement of the expert,
(d) that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert, but that contains a misrepresentation attributable to failure to represent fairly the person’s report, opinion or statement as an expert,
(i) the person had, after reasonable investigation, reasonable grounds to believe and did believe that the part of the prospectus or the amendment to the prospectus fairly represented the person’s report, opinion or statement, or
(ii) on becoming aware that the part of the prospectus or the amendment to the prospectus did not fairly represent the person’s report, opinion or statement as an expert, the person advised the Commission and gave reasonable general notice that such use had been made and that the person would not be responsible for that part of the prospectus or the amendment to the prospectus, or
(e) that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or an extract from, a public official document, it was a correct and fair representation of the statement or copy of, or extract from, the document, and the person had reasonable grounds to believe and did believe that the statement was true.
149(5)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
149(6)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus or the amendment to the prospectus not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, a report, opinion or statement of an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
149(7)No underwriter is liable for more than the total public offering price represented by the portion of the distribution underwritten by the underwriter.
149(8)In an action for damages under subsection (1), the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the securities as a result of the misrepresentation relied on.
149(9)All or any one or more of the persons referred to in subsection (1) or (2) are jointly and severally liable, and every person who becomes liable to make any payment under this section may recover a contribution from any person who, if sued separately, would have been liable to make the same payment unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.
149(10)Where in a distribution of securities
(a) no receipt for a prospectus was issued,
(b) no exemption from filing a prospectus exists or was granted, and
(c) a misrepresentation existed in respect of the distribution,
each purchaser of the securities has a right of rescission or a right of action for damages as if a prospectus containing a misrepresentation had been filed in respect of the distribution.
149(11)In no case shall the amount recoverable under this section exceed the price at which the securities were offered to the public.
149(12)The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the purchaser may have at law.
149(13)If a misrepresentation is contained in a document incorporated by reference in, or deemed incorporated into, a prospectus, the misrepresentation shall be deemed to be contained in the prospectus.
2007, c.38, s.159
Liability for misrepresentation in prospectus
149(1)Where a prospectus together with any amendment to the prospectus contains a misrepresentation, a purchaser who purchases securities offered by the prospectus during the period of distribution shall be deemed to have relied on the misrepresentation if it was a misrepresentation at the time of purchase and has a right of action for damages against
(a) the issuer or a selling security holder on whose behalf the distribution is made,
(b) each underwriter of the securities who is required by the regulations to sign a certificate required to be contained in the prospectus,
(c) every director of the issuer at the time the prospectus or the amendment to the prospectus was filed,
(d) every person whose consent has been filed as required by the regulations, but only with respect to reports, opinions or statements that have been made by the person, and
(e) every person who signed the prospectus or the amendment to the prospectus other than the persons referred to in paragraphs (a) to (d).
149(2)Where the purchaser purchased the securities from a person referred to in paragraph (1)(a) or (b) or from another underwriter of the securities, the purchaser may elect to exercise a right of rescission against the person or underwriter, in which case the purchaser shall have no right of action for damages against the person or underwriter.
149(3)No person is liable under subsection (1) or (2) if the person proves that the purchaser purchased the securities with knowledge of the misrepresentation.
149(4)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) if the person proves
(a) that the prospectus or the amendment to the prospectus was filed without the person’s knowledge or consent and that, on becoming aware of its filing, the person gave reasonable general notice that it was so filed,
(b) that, after the issuance of a receipt for the prospectus and before the purchase of the securities by the purchaser, on becoming aware of any misrepresentation in the prospectus or an amendment to the prospectus, the person withdrew the person’s consent to it and gave reasonable general notice of the withdrawal and the reason for the withdrawal,
(c) that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the authority of an expert or purporting to be a copy of, or an extract from, a report, opinion or statement of an expert, the person had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that the part of the prospectus or the amendment to the prospectus did not fairly represent the report, opinion or statement of the expert or was not a fair copy of, or extract from, the report, opinion or statement of the expert,
(d) that, with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert, but that contains a misrepresentation attributable to failure to represent fairly the person’s report, opinion or statement as an expert,
(i) the person had, after reasonable investigation, reasonable grounds to believe and did believe that the part of the prospectus or the amendment to the prospectus fairly represented the person’s report, opinion or statement, or
(ii) on becoming aware that the part of the prospectus or the amendment to the prospectus did not fairly represent the person’s report, opinion or statement as an expert, the person advised the Commission and gave reasonable general notice that such use had been made and that the person would not be responsible for that part of the prospectus or the amendment to the prospectus, or
(e) that, with respect to a false statement purporting to be a statement made by an official person or contained in what purports to be a copy of, or an extract from, a public official document, it was a correct and fair representation of the statement or copy of, or extract from, the document, and the person had reasonable grounds to believe and did believe that the statement was true.
149(5)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus or the amendment to the prospectus purporting to be made on the person’s own authority as an expert or purporting to be a copy of, or an extract from, the person’s own report, opinion or statement as an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
149(6)No person, other than the issuer or selling security holder, is liable under subsection (1) or (2) with respect to any part of the prospectus or the amendment to the prospectus not purporting to be made on the authority of an expert and not purporting to be a copy of, or an extract from, a report, opinion or statement of an expert unless the person
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation, or
(b) believed there had been a misrepresentation.
149(7)No underwriter is liable for more than the total public offering price represented by the portion of the distribution underwritten by the underwriter.
149(8)In an action for damages under subsection (1), the defendant is not liable for all or any portion of the damages that the defendant proves do not represent the depreciation in value of the securities as a result of the misrepresentation relied on.
149(9)All or any one or more of the persons referred to in subsection (1) or (2) are jointly and severally liable, and every person who becomes liable to make any payment under this section may recover a contribution from any person who, if sued separately, would have been liable to make the same payment unless the court rules that, in all the circumstances of the case, to permit recovery of the contribution would not be just and equitable.
149(10)Where in a distribution of securities
(a) no receipt for a prospectus was issued,
(b) no exemption from filing a prospectus exists or was granted, and
(c) a misrepresentation existed in respect of the distribution,
each purchaser of the securities has a right of rescission or a right of action for damages as if a prospectus containing a misrepresentation had been filed in respect of the distribution.
149(11)In no case shall the amount recoverable under this section exceed the price at which the securities were offered to the public.
149(12)The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the purchaser may have at law.
149(13)If a misrepresentation is contained in a document incorporated by reference in, or deemed incorporated into, a prospectus, the misrepresentation shall be deemed to be contained in the prospectus.