Canada: Court Of Appeal Looks Past Unregistered Trading In Ordering Payment To Investment Finder

For many junior resource company executives, deciding whether to engage investment "finders" can be like considering whether to breathe air. Such companies tend to have early-stage projects that don't warrant debt financing and therefore need equity injections, but lack the profile to attract traditional investment dealers. Working with finders, however, requires navigating the "exempt" market – so named because it involves transactions that are exempt from the prospectus requirement and (in most cases) the registration requirement of securities law – which can be hazardous to the ill-informed. One company recently found itself in a catch-22 when a finder it had engaged demanded a fee: sanction a potential breach of securities law and stock exchange policies by paying it, or be liable for unjust enrichment and legal costs (the eventual result) by declining.

This resulting court case, Birch v. GWR Resources Inc.,¹ is of interest to issuers and their advisers for several reasons, including the rare occasion it presented for British Columbia's highest court to consider the junior capital market. It also contains guidance for issuers and finders in respect of when a fee will be payable. Above all, it highlights that engaging investment finders can attract legal and regulatory headaches, along with needed capital. Diligence and informed advice are critical to managing risks in this area, and to avoiding noxious side effects of an exempt financing.

Facts and background

Ron Birch, the finder in this case, had been involved in the securities industry since the 1980s, and was registered as an investment adviser for several years before apparently giving up his registration in the 1990s. In "about 2009 or 2010",²  he was approached to locate investors for GWR Resources (GWR), a mineral exploration company. Birch was not an employee of GWR at the time, and the arrangement was informal. The President of GWR told him to "find us some money and we'll look after you."³ There was no written agreement, but Birch took the statement to mean he would receive a finder's fee if he located investors. Not surprisingly, when meetings Birch had arranged resulted in a $1.8 million investment in GWR, he expected to get paid.

The TSX Venture Exchange (TSXV), on which GWR was listed, allows finder's fees to be paid to certain persons but generally not to employees.⁴

When the payment was raised by Birch, GWR purportedly considered paying him a finder's fee, but determined that there had been no agreement in that respect, and that in any event it was prohibited from making such a payment under the applicable regulatory framework.

The main problem it cited was that between the date of Birch's informal retainer and the date of the investment, Birch had become an employee of GWR and was, therefore, ineligible to receive any finder's fee or commission under TSXV policy. Moreover, the TSXV requires that before paying any compensation to a finder, an issuer must provide a copy of the finder's agreement. No such agreement existed in writing, so, GWR reasoned, it was doubly precluded from paying Birch as a finder. Further still, GWR argued that the verbal commitment was not sufficient to create a contract, and it cited expert evidence (uncontested by Birch) that finder's agreements are put in writing "in almost every instance."⁵

Finally, and most importantly, securities law prohibits payments to unregistered persons for brokering an investment, absent an exemption, as described under the heading Regulatory Backdrop below.

The chronology of events is worth emphasizing:

• Birch was informally engaged as an outside finder, and arranged several meetings that did not bear fruit in the short term;
• He then became a part-time investor relations employee of GWR with, he claimed, a mandate to liaise with existing shareholders rather than to find new investors;
• During the course of Birch's employment, his efforts as a finder continued;
• The President of GWR, who had informally engaged Birch as a finder and who later hired him, was terminated; and
• 10 months after becoming an employee, Birch's continuing finding efforts resulted in a significant investment in GWR.

Decision

The Court of Appeal's decision, which upheld the decision of the lower court (together, the Decisions), stated that although GWR had no contractual obligation to pay Birch a finder's fee, it still should have done so, for two reasons: (1) the TSXV may have allowed the fee to be paid, had it been asked; and (2) Birch deserved compensation for the benefit GWR received through his finding efforts, legally referred to as quantum meruit. These are discussed in turn.

As to the TSXV policies

The Court of Appeal determined that GWR should not have concluded on its own that paying the fee would contravene stock exchange policies. The TSXV had discretion to waive its prohibition on paying finder's fees to employees⁶ and may have done so, but GWR had not requested a waiver. The TSXV, therefore, did not have the chance to consider whether payment of the fee would contravene its policy or be permitted.

As quantum meruit

The scope of Birch's employment was of significance. As with his original "finding" retainer, the investor relations arrangement was not put in writing. Birch claimed that he had been hired to liaise with existing shareholders with a view to maintaining their investment in GWR, rather than on finding new investors.⁷ Accordingly, Birch claimed that his efforts to find investors fell outside the scope of his employment. GWR argued rather that he had been employed both to keep shareholders up to speed and to attract new investors. As noted, the executive who retained him had been terminated by the time the financing occurred, and was not involved in the litigation.

It was common ground that Birch was performing "investor relations activities", which captures both informing existing shareholders and seeking to attract new investment.⁸ Birch successfully argued that he was employed with a view to the former and not the latter.

Consequently, the $1.6 million investment was a benefit to GWR that it would not have obtained through Birch's employment alone. On this basis, the courts found that Birch was entitled to reasonable value for his extra-employment services, and awarded him $50,000, plus court costs.

Regulatory backdrop

Trading and dealing

Securities laws are aimed at protecting investors and creating a fair and efficient capital market.⁹ These goals are pursued, among other ways, by requiring anyone "in the business" of trading in securities to be registered as a dealer unless an exemption is available.¹⁰ The term "trade" is defined broadly to include an issuance of securities from treasury, being what GWR did in respect of the investment, and any act in furtherance of a sale of securities,¹¹ which captures the work Birch did in arranging and attending meetings that led to the investment.

The Canadian Securities Administrators provide the following indicators that a person is in the business of trading – which they refer to as trading with a "business purpose" – and is therefore required register as a dealer:

• Contacting anyone to solicit securities transactions or to offer advice may reflect a business purpose.
• Frequent or regular transactions are a common indicator that an individual or firm may be engaged in trading...for a business purpose.
• Receiving, or expecting to receive, any form of compensation for carrying on the activity, including whether the compensation is transaction- or value-based, indicates a business purpose. ¹²

Birch made a strong, if unwitting, case that finding investment (i.e. trading) was in fact his business, by describing himself as having "twenty-eight years of experience in the investment industry"¹³ and boasting "a network of individuals who listen to what I say and, if they like the story, will buy shares in the company."¹⁴

The Decisions do not, however, consider whether Birch was in the business of trading and thereby breached securities law because he was not registered.¹⁵

Many companies that raise money by issuing securities are not in the business of trading, making them exempt from the dealer registration requirement. GWR, for instance, is in the business of mineral exploration, and its share offerings would be incidental to that business purpose. If Birch had set up the meetings that led to the investment in his capacity as an employee of GWR, he likely would have been covered by the same exemption.¹⁶ By claiming that he conducted finding activities outside the scope of his employment, however, he precluded himself from such coverage.

In the circumstances, GWR was faced with a choice of either paying Birch, which would have compensated unregistered trading and underscored that he was not eligible to share its registration exemption, or taking its chances in being sued by Birch. Even though GWR was ultimately liable for the fee and costs, it arguably made a reasonable choice in that paying the finder's fee voluntarily – even if the TSXV were to have permitted it – could have meant sponsoring a breach of securities laws and exposing itself to potential regulatory sanction.¹⁷

No securities, no problem

Securities laws were applicable in this case only because securities changed hands. If Birch had been engaged and paid for finding, say, an exploration property that GWR were to acquire, securities legislation would have been irrelevant in determining his compensation.

Two finder's fee cases were cited in the Decisions, each of which involved a finder acting on behalf of a resource company.¹⁸ Both cases were decided in favour of the finder, and the Trial Decision cited them as authorities as to why Birch was entitled to a fee. Neither case involved trading in securities, however, nor any alleged breach of a law on the part of the finder. Those facts, if acknowledged, would have clearly distinguished the previous decisions from the case at hand.

Exchange policies

The policies of the TSXV are supplemental to securities laws for listed issuers. Some of those policies reflect the same goals as securities laws, such as the regulation of promoters. Thus, for example, an issuer that retains an "investor relations" employee must disclose certain things to the TSXV, such as information about the person's background.¹⁹ Similarly, an issuer must make certain filings and public disclosure before paying a finder's fee or commission.²⁰ As noted, employees generally cannot receive finder's fees, and a condition to an outside finder being paid a fee is that the finder's agreement be in writing.

Both of those policies were acknowledged in the Decisions and should have weighed in favour of GWR's claim that it was not able to pay a finder's fee. In fact, not only was there no written record of a finder's agreement between Birch and GWR, the lower court found that no such agreement existed. The Court of Appeal then found that GWR should have applied to the TSXV for a discretionary waiver of its policy, despite the absence of an agreement on which the application would be premised.²¹

Perhaps the most significant flub, however, was that the TSXV policies were both misunderstood and too much a point of focus in this case. By contrast with securities legislation, those policies do not have the force of law and, therefore, were not the most important constraint on GWR. Compounding matters, GWR made a crucial error in its appeal of the lower court decision when it stated that the TSXV policy permitting finder's fees provides an exemption from the registration requirement of securities law.²² The policy does no such thing, and in fact it provides that a statement of the applicable registration exemption is a condition of receiving TSXV approval for paying a finder's fee.²³ Having made this gratuitous mistake in its opening statement, GWR appears to have set the court on the wrong track and precluded the very point on which the appeal should have been focused.

Commentary, and implications for listed companies and finders

Agreements in writing

This case may never have gone to court had there been a written record of the investor relations agreement between Birch and GWR, particularly if it had included the terms that GWR claimed existed, being that Birch was tasked with both liaising with existing investors and attracting new money. Similarly, if Birch's initial engagement had been documented it would have helped clarify the relationship between the parties. As another commentator has suggested, this speaks to the time-honoured rule that significant agreements should be put in writing.²⁴ Failure to do so creates uncertainty, risk and, in this case, actual liability plus litigation costs.

In respect of finders' agreements, issuers should require finders to state that they will discharge their duties in accordance with securities laws. Specifically, finders should represent in writing that their actions are exempted from the registration requirement, or that they are registered in the applicable category.

Application to TSXV policies on finding

This decision, taken on its face, has implications for parties involved in or benefitting from investment finding activities in relation to TSXV-listed companies.

From a finder's perspective, the decision bolsters claims for receiving finder's fees, even where a written contract is not present. In addition, both employees and non-employees may be entitled to compensation if they secure financing that a TSXV-listed company would not have otherwise obtained.

On the employer side, some companies will be pleased to be reminded that TSXV policy does not prohibit payment of finder's fees to employees in all circumstances. The flip side is that listed companies should avoid using their own discretion to determine whether paying a finder's fee is contrary to TSXV policy.

Finders, courts and securities law

The securities regulatory regime is complex and specialized. Most decisions in this field, particularly in the context of enforcement, are rendered by securities commissions and the outcomes are somewhat consistent and predictable. This case, however, involved applying civil remedies (unjust enrichment, quantum meruit) by a court to a securities transaction, which can lead to unpredictable outcomes.

Moreover, the parties did not demonstrate diligence or a full understanding of applicable law. Birch's argument would have been strengthened by showing that he satisfied an exemption from the registration requirement (though it's not clear which, if any, would be available²⁵), or if he had been registered, for example in the category of exempt market dealer. GWR should have focused on the securities law prohibition on unregistered trading, with a clear focus on why paying Birch for finding activities – if done outside of his employment, as he alleged – could have meant sponsoring and perhaps even inducing a breach of securities law. They also would have been well-served in engaging specialized securities counsel.

In the result, GWR exposed itself to a perverse fate by being forced to sponsor a seemingly illegal trade in its securities, to say nothing of the time and financial costs associated with two court actions. Such is the risk of entering a complex area of the law without the proper safeguards.

This article was co-authored by Daniel McElroy, Knowledge Management Lawyer, and Katie Gordon, Articling Student, both in Dentons' Vancouver office.

Footnotes

1. Birch v. GWR Resources Inc., 2016 BCSC 117 (CanLII) (the Trial Decision) and Birch v. GWR Resources Inc., 2017 BCCA 184 (CanLII) (the Appeal Decision). GWR'sname has since been changed to Engold Mines Ltd.

2. Paragraph 6 of the Trial Decision.

3. As above.

4. TSXV Policy 5.1, section 3.2(a). This Policy has been amended subsequent to the events of this case, but the provisions cited here are substantively the same.

5. Paragraph 18 of the Trial Decision.

6. TSXV Policy 5.1, section 3.2(a).

7. Paragraph 22 of the Trial Decision.

8. TSXV Policy 1.1, section 1, and Securities Act (British Columbia), section 1. The regulation of investor relations activities is described below.

9. See, for example, Securities Act (Ontario), section 1.1 and, with respect to the policy for the registration requirement in particular, Companion Policy to National Instrument 33-109 Registration Information, section 1.1.

10. Companion Policy to National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (CP 31-103), section 1.3.

11. For example, Securities Act (British Columbia), section 1(1), definition of "trade", paragraphs (a) and (f).

12. CP 31-103, section 1.3.

13. Part 1, Paragraph 3 of the Notice of Civil Claim dated April 5, 2012.

14. Paragraph 34 of the Trial Decision.

15. This appears to be an oversight but, as discussed under the heading "Exchange policies", GWR may have confused both the courts and itself in its argument relating to the registration requirement.

16. This is part of the rationale for the TSXV's prohibition on paying commissions or finder's fees to employees (or any other "Non-Arm's Length Party"), in that allowing such fees could incentivize avoiding the registration requirement by bringing sales people in house. Other exchanges have similar rules. 

17. There is no specific provision in British Columbia's securities legislation that explicitly prohibits sponsoring unregistered trading. It is certainly possible, however, that the Securities Commission could take enforcement action in such circumstances under its broad and frequently exercised "public interest" authority , per section 161 of the Securities Act (British Columbia). It also raises potential issues of vicarious liability, in that GWR as principal could be liable for the actions of its agent Birch.

18. The decisions cited were Malik (Estate of) v. State Petroleum Corporation, 2009 BCCA 505 (CanLII) and Brule v. Rutledge, 2015 BCCA 25 (CanLII).

19. TSXV Policy 3.4, section 6.

20. TSXV Policy 5.1, section 3.1.

21. Paragraph 32 of the Appeal Decision.

22. Extracts of GWR's argument on appeal that highlight this error are set out in paragraphs 12 and 20 of the Appeal Decision.

23. TSXV Policy 5.1, section 5.1.

24. BC case highlights need for written agreements for securities issuers, Amanda Jerome, Lawyers' Daily, March 19, 2017.

25. The "Northwestern Exemption" set out, among other places, in BC Instrument 32-513 Registration Exemption For Trades In Connection with Certain Prospectus-Exempt Distributions is commonly used by investment finders. This exemption allows persons who have never been registered to act as finders in the four Western provinces and the territories, subject to certain conditions such as filing a notice with the securities regulator in the jurisdictions where they are performing finding activities. However, as a former registrant, it appears that Birch would not qualify for this exemption.

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