Law Times

PAGE 4 NEWS Nimble firms have edge Continued from page 1 "We've always worked with strong local fi rms in jurisdic- tions throughout the world, and the fact that the Toronto and London exchanges might be connected shouldn't make any diff erence to the eff ec- tiveness or reach of how we operate," says Alfred Page, national leader of the fi rm's securities and capital markets group. Page does, however, raise the possibility of the TSX becoming Pablum for the LSE with larger companies listing in London and then cross-listing in Toronto. "I'm not sure you need to have a presence in London to take advantage of that business," he says. "Many fi rms do well in that area without it." But, like Levin, Page is concerned that the 'The firms that thrive in a merg- er scenario will be those who, on the whole, work best with U.K. colleagues,' says Alfred Page. In other words, once the exchanges unite, it may be diffi cult to diff erentiate To- ronto from London. "Th at's especially so in the mining and resource area, where To- ronto shines but London has a pretty strong base as well," Page says. "It may become harder to identify the unique qualities that compel compa- nies from other jurisdictions to list here." To be sure, Toronto may have the better trading tech- nology, but liquidity and capital availability are equally important draws. "You also have to wonder whether a combined exchange would re- ally be interested in Canadian niche products like the TSX [Venture Exchange's] capi- merger may impede the TSX's growth or at least stifl e its marketing momentum. "We've now managed to attract over 100 listings from China without having strong ties to that country," he notes. "But how are we going to continue successfully promoting ourselves as a unique mid-market player when we're in the LSE fold and can't start throwing rocks at [al- ternative investment markets] or at Dubai?" tal pool companies," Page says. "On the one hand, the TSX-V is a good feeder for larger exchanges and represents an alternative way to get fi nancing but it's also riskier than what the LSE runs into on a day-to-day basis." Still, Page insists he's not painting a doom- and-gloom scenario. "It's a matter of being light on our feet and nimble enough to ad- just," he says. "Th e fi rms that thrive in a merg- er scenario will be those who, on the whole, work best with U.K. colleagues." February 28, 2011 • Law Times Ruling sparks changes at PEO Continued from page 1 all of his work. Th e process for us was surreal." Guerriero, who is still manager of legal and regulatory aff airs at PEO, declined to comment. But Kim Allen, the regulator's CEO, says things have changed at the organization since the fu- ror. Th e chairman of the disciplinary committee has since com- pleted his two-year term, and members now get extensive training from a former judge on their duties. PEO dealt with Guerriero's conduct as a "normal management issue," Allen says, declining to provide further details. "It certainly was not welcomed," he adds. "Unfortunately, these things happen, and you deal with them. We have done a number of things to ensure there is no infl uence or appearance of infl uence. Th ose changes were made 18 months ago when this all occurred." Th e roots of the dispute lay in scheduling problems for the hear- ing of a complaint made against Lim in December 2006. A hearing was to take place in December 2007, but a problem with panel availability caused a postponement. Lim was out of the country for the new date, which was set without consulting the parties. His lawyers, who were granted an adjournment, wrote to the tribunal offi ce asking to be consulted about the next date for the hearing. Th ey got no reply, and the hearing was again rescheduled without consultation. Th e complaint was fi nally heard and dismissed in No- vember 2008, but by then PEO had received another complaint about Lim. History began repeating itself as a date was set for the new hear- ing in November 2009. Lim would be out of the country, and his counsel, Ryan Breedon of Lenczner Slaght, was scheduled for a tri- al. Another adjournment motion was granted and the matter went back once again for scheduling with Breedon requesting consulta- tion on potential dates. Th at kicked off a chain of correspondence between Breedon and Guerriero that the Divisional Court judges described as "astonishing." It revealed "an overbearing, unco-oper- ative, and unprofessional attitude on the part of the tribunal offi ce, in particular Mr. Guerriero," Ferrier wrote. In an e-mail, Guerriero told Breedon and PEO's counsel, Aviva Harari, that trials, vacations, and "any other such disingenuous ex- cuses, without presentation of evidence to the contrary," weren't suf- fi cient reasons for delaying the hearing. Breedon wrote back, noting that it's routine to fi x dates on consent. He also objected to the implication that he had misled the tribunal about his unavailability in the past and demanded an apology. But Guerriero was having none of it and instead demanded an apology of his own for Breedon's "intemperate comments." "Any intimidation towards tribunal staff will be met by a com- Wendy Matheson www.mathesonforbencher.com Torys_LT_Feb28_11.indd 1 www.lawtimesnews.com 2/23/11 9:36:16 AM plaint being formally fi led before the Law Society of Upper Cana- da," Guerriero added. Harari attempted to step above the fray by writing to the com- mittee chairman to complain that Guerriero was "usurping the jurisdiction of the chair" in advising what constituted acceptable reasons for adjournment. She also expressed concern about Guer- riero's "inappropriate and disrespectful" correspondence. But the letter never made it to the chairman and instead hit a brick wall at the tribunal offi ce that had been asked to pass it on. In July 2009, Breedon fi led a motion asking for a stay of the prosecution against Lim. A month later, Guerriero asked for his own staff to be made a party to the motion. In an interim decision released on Sept. 21, 2009, Monsour said it "might be quite useful" to add PEO's administrative staff as a party but referred the matter to a pre-hearing conference for another committee member, engi- neer Bill Walker, to decide. At the conference on Oct. 7, 2009, Guerriero accused Lim's law- yers of "taking a certain amount of shortcuts on the law," remarks he withdrew at Walker's suggestion. Walker ordered the motion for stay to continue without the ad- ministrative staff being made a party because it would "only fur- ther call into question the discipline committee's impartiality." But Monsour refused to process the motion and adjourned the hearing of the main matter sine die. "If you think of how central engineers are to Canada, it doesn't really inspire public confi dence if this is how they're running their disciplinary processes," McDowell says in response. According to Allen, the root of the problem lay in a misunder- standing over who should address scheduling concerns. Counsel now have directions to contact the disciplinary committee chair, not the tribunal offi ce. If that had happened in this case, the situa- tion wouldn't have escalated because Guerriero wouldn't have been involved, Allen says. "We don't condone that kind of conduct, that kind of response. What caused the fl are-up was the process. Some- times, you shouldn't fi ght somebody else's fi ght. It's clearly the job of the chair to set dates." PEO has also expanded the disciplinary committee to ease the logistical diffi culties of putting together a panel, Allen says, noting a disciplinary task force is to report back with further recommenda- tions in the spring. "It's a process of ongoing improvement," he says.

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