National Bank Financial Ltd. v Potter, 2011 NSSC 407

SUPREME COURT OF NOVA SCOTIA Citation: National Bank Financial Ltd. v Potter , 2011 NSSC 407 Date: 20111104 Docket: Hfx No 206439 (Main) Hfx No 174293 (Debt) Hfx No. 208293 (Barthe) Hfx No. 216059 (Wadden) Hfx No. 227347 (Banks) Hfx No. 246337 (Weir) Hfx No. 278010 (Helical) Registry: Halifax BETWEEN: National Bank Financial Limited Plaintiff v.

Daniel Potter, Starr’s Point Capital Incorporated, Fiona Imrie, Gramm & Company Incorporated, 2532230 Nova Scotia Limited, 3020828 Nova Scotia Limited, 3027748 Nova Scotia Limited, Calvin Wadden, Raymond Courtney, Bernard Schelew, Blois Colpitts, Stewart McKelvey Sterling Scales, Bruce Clarke, 2317540 Nova Scotia Limited and Knowledge House Inc.

Defendants AND BETWEEN : Bruce Clarke, Fiona Imrie, Gramm & Company Incorporated, 2532230 Nova Scotia Limited, 3020828 Nova Scotia Limited, Calvin Wadden, Bernard Schelew, Daniel Potter, Knowledge House Inc., Starr’s Point Capital Incorporated, Donald Snow, Meg Research.com Limited, 3027748 Nova Scotia Limited and Raymond Courtney Plaintiffs by Counterclaim v. National Bank Financial Ltd., National Bank of Canada, Real Raymond, Jean Turmel, Michel Lebonte, Lorie Haber, Guy Roby,

Eric Hicks, Barry Morse, David Mack and Bruce Clarke Defendants by Counterclaim AND : Daniel Potter, Blois Colpitts, Stewart McKelvey Sterling Scales, and Bruce Clarke Defendants by Crossclaim AND BETWEEN : Knowledge House Inc. and Dan Potter Plaintiffs v. Stewart McKelvey Stirling Scales, Andrew V. Burke, R. Blois Colpitts and James K. Cruickshank Defendants Judge: The Honourable Justice Gregory M. Warner Heard: March 31, 2011, in Halifax, Nova Scotia Written Decision: November 4, 2011 Counsel: James A. Hodgson QC , David G. Coles QC and Robert E. Blair , counsel for NBFL and National Bank of Canada (NBC) W.

Dale Dunlop and Sean MacDonald , counsel for Calvin Wadden, Andrea Wadden, 3019620 Nova Scotia Limited, Lowell Weir, Blackwood Holdings Limited, Carol McLaughlin-Weir, Craig Dunham, the Estate of Michael Barthe, Lutz Ristow, and Helical Corporation Kevin C. McDonald and Jeff Flinn , counsel for Derek Banks and Plastics Maritime Limited Linda Fuerst , counsel for BMO Nesbitt Burns (BMO) Douglas Rudolph , self-represented, not appearing By the Court : [ 1 ] This decision sets out the Court’s determination of the order for presenting evidence in this multi-party litigation.

Part I History [ 2 ] In 2001, Knowledge House Inc. (“KHI”), a publicly traded technology company, collapsed, when National bank Financial Limited called in margin accounts secured in part by KHI shares. Twenty-six civil actions, involving more than fifty-four sets of related parties, ensued. [ 3 ] The first sixteen actions were commenced by NBFL in or about September 2001for debts arising from margin accounts secured by KHI shares. They were straight-forward actions claiming debit balances.

In February 2002, the sixteen actions were consolidated into one (“ Debt Action ”). [ 4 ] In his October 2001 defence, Daniel Potter (“Potter”), one of the Debt Action defendants as well as President of KHI, alleged that NBFL was negligent and breached its duties to the defendants by the manner in which it called in the margin accounts.

He counterclaimed for his losses. [ 5 ] On the same day, Calvin Wadden (“Wadden”) filed a defence alleging that Bruce Clarke (“Clarke”), a broker employed by NBFL, and NBFL, had been negligent, and breached NBFL’s contractual and fiduciary duties to him, by manipulative trading of KHI shares, which he claimed led to KHI’s collapse. Alternatively, Clarke, Potter, and Blois Colpitts (“Colpitts”), KHI’s legal counsel, had participated in a scheme to manipulate trading in KHI shares, leading to KHI’s collapse.

Wadden counterclaimed for his losses. [ 6 ] Other defendants filed similar defences and counterclaims. [ 7 ] Based on documents received from Wadden, and its own “independent” investigation, in August 2003, NBFL commenced a new action, since called the “ Main Action” , against several persons involved with KHI alleging a scheme to manipulate the market price of the shares of KHI, and claiming damages for its margin account losses.

While Wadden’s stock manipulation scheme allegations were restricted to Clarke, Potter and Colpitts, NBFL alleged a much broader membership in the conspiracy - ten individuals, nine corporations, and a law firm.

NBFL alleged that Clarke was “on a lark of his own” in respect of this scheme and NBFL was not liable either vicariously for Clarke’s actions, nor, in negligence or for breach of contract or fiduciary duties, for its own actions. [ 8 ] The Main Action lead to further claims, crossclaims, counterclaims and third party claims as well as further actions. [ 9 ] As of 2007, more than 54 groups of related persons and corporations were named in more than 11 actions.

Between September 2009 and October 2010, the number of parties and actions declined, as a result of settlements, to nine groups in seven actions. [ 10 ] At a Case Management Conference on October 22, 2010, the remaining parties agreed that all actions (with one reservation that was later withdrawn) be tried together by a judge without a jury, commencing on October 3, 2011. A motion was filed to determine the order of presentation in this litigation. [ 11 ] The motion was heard on March 31, 2011, and the decision reserved to permit other processes to be completed.

Since the hearing, another action was settled, and a second was dismissed by the Court. Outstanding are five actions involving six groups of related parties.

Part II The Outstanding Actions and Parties The Five Actions Debt Action (174293) [ 12 ] This action is described in ¶¶ 4 and 5. The remaining defendants in this action are: Wadden, Craig Dunham (“Dunham”), Lowell Weir (“Weir”), Weir’s corporation Blackwood Holdings (“Blackwood”) and Douglas Rudolph (“Rudolph”). [ 13 ] As noted, Wadden’s defence and counterclaim alleges that Clarke acted improperly with respect to the manipulation of the KHI shares and that NBFL is liable for his wrongful conduct, and its own conduct.

Potter, a former defendant in this action, alleged that NBFL was disqualified from collecting on the margin debts because it was negligent and breached its duty in the matter in which it dealt with the margin accounts. The defendants Weir, Blackwood and Rudolph relied on the allegations made by Wadden in his defence and counterclaim. Dunham’s defence and counterclaim does not rely on Wadden’s pleadings, but on specific allegations of breach of fiduciary duty, contract and standard of care of NBFL and Clarke towards Dunham.

Main Action (206439) [ 14 ] As noted, this action was commenced in August 2003 by NBFL against several KHI insiders, including its own broker Clarke, Potter, Colpitts and Wadden. The only remaining defendant in this action is Wadden. [ 15 ] Prior decisions of the Supreme Court of Nova Scotia determined that as a result of disclosures made by Wadden in the Debt Action , and their own independent investigation, NBFL believed a scheme existed and they suffered losses by reason of it.

The Main Action was not simply a response to Wadden’s allegations against itself and Clarke, or alternatively, Potter, Colpitts and Clarke. It contained more expansive allegations against a much greater number of persons. As in the Debt Action , NBFL pleaded that Clarke was a participant in the stock manipulation scheme but was “on a lark of his own”, and that NBFL was not liable for his misdeeds. Barthe Action (208293) [ 16 ] In October 2003, the late Michael Barthe (“Barthe”) and Dr.

Lutz Ristow (“Ristow”) sued NBFL for negligence, breach of contract, breach of fiduciary duties and vicarious liability for alleged wrongdoings of Clarke. They generally plead that they were convinced to invest over $5,000,000.00 for shares, existing and new, of KHI at their true market value, and that they funnelled their investment through the accounts of NBFL on the instructions of KHI principals. They allege that their share purchases were not carried

out as agreed; that they were victims of the stock manipulation scheme pleaded by NBFL in the Main Action, and other misconduct by NBFL and Clarke described in their pleading, and that NBFL is responsible for its own and Clarke’s wrongdoings. [ 17 ] NBFL’s pleadings deny liability, and claim that Barthe and Ristow were part of the stock manipulation scheme. NBFL third- partied the defendants in the Main Action for any liability it may have to Barthe and Ristow. The only remaining third party is Wadden.

Wadden Action (216059) [ 18 ] Wadden, Andrea Wadden and a numbered company controlled by them then sued BMO Nesbitt Burns (BMO), alleging that BMO brokers were part of the stock manipulation scheme. BMO denies that any of its employees were part of a stock manipulation scheme. Weir Action (246337) [ 19 ] National Bank of Canada (“NBC”) sued Weir and Carol McLaughlin-Weir (“McLaughlin-Weir”) for debts owed to the Bank. The Weirs have defended and counterclaimed against NBC, based upon NBC’s responsibility for the conduct of Clarke and NBFL that lead to the debts owed to NBC, and for other alleged losses.

The Remaining Parties [ 20 ] The remaining seven parties, or groups of parties, are: i. NBFL, plaintiff and defendant by counterclaim in the Debt Action and Main Action , defendant and plaintiff by counterclaim in the Barthe Action , and third party plaintiff against Wadden in the Barthe Action . NBC is the plaintiff in the Weir Action . ii. Calvin Wadden, defendant and plaintiff by counterclaim in the Debt Action and Main Action, and plaintiff, with his spouse and a numbered company, against BMO Nesbitt Burns in the Wadden Action . iii.

Craig Dunham, a defendant and plaintiff by counterclaim in the Debt Action . iv. Douglas Rudolph, a defendant and plaintiff by counterclaim in the Debt Action . v. Lowell Weir and Blackwood Holdings, defendants and plaintiffs by counterclaim in the Debt Action , and Lowell Weir and Carol McLauglin-Weir, defendants and plaintiffs by counterclaim in the Weir Action . vi. The Estate of Michael Barthe and Lutz Ristow, plaintiffs and defendants by counterclaim, in the Barthe Action , and third party defendants in the Debt Action .

Part III Submissions [ 21 ] NBFL/NBC : NBFL/NBC characterize the outstanding claims as: i. Claims by NBFL for debts on margin accounts in the Debt Action against Wadden, Dunham, Rudolph, Weir, Blackwood and by NBC for a loan owed by Weir and McLaughlin-Weir. ii.

a) Claims by Wadden against BMO Nesbitt Burns for its

part in a stock manipulation scheme.

b) Claims by Barthe and Ristow against NBFL for NBFL’s and Clarke’s misconduct.

c) Claims filed by Wadden, Dunham, Rudolph, Weir and Blackwood in their defences and counterclaims in the Debt Action . iii. What NBFL describes as “contingent” claims of NBFL:

a) against Wadden in its Main Action , its defence of Wadden’s counterclaim in the Debt Action, and its third party claim for contribution and indemnity in the Main, Debt, and Barthe Actions ; and,

b) against Barthe and Ristow in its defence and counterclaim in the Barthe Action, and for any amounts not recovered by NBFL against the other defendants, in its third party claims in the Debt Action . [ 22 ] NBFL proposes that evidence should be lead in the outstanding actions as follows: i. NBFL should prove its debt claims against Wadden, Dunham, Rudolph, Weir and Blackwood in the Debt Action . ii. NBC should prove its debt claim against Weir and McLauglin-Weir in the Weir Action . iii.

The defendants in the Debt Action and Main Action and plaintiffs in the Barthe Action should prove their allegations of wrong doing against NBFL. iv. NBFL should present the evidence with respect to its “contingent claims”. v. BMO should lead evidence with respect to its defence in the Wadden Action . [ 23 ] NBFL acknowledges that it alleged a scheme to manipulate the market price of KHI shares against several former parties with

whom it has settled, and:

a) in the Main Action against Wadden;

b) in the Debt Action against Wadden and in third party claims against Barthe and Ristow; and,

c) in the Barthe Action against Barthe and Ristow, and in a third party claim against Wadden. [ 24 ] However, NBFL states that Wadden was the first to allege a stock manipulation scheme and that really NBFL’s own allegations in that regard are contingent upon the allegations first advanced by Wadden, and later relied upon by Barthe and Ristow in the Barthe Action . [ 25 ] BMO Nesbitt Burns : At the time of its submission, BMO Nesbitt Burns was a defendant in two actions: the Banks Action (Derek Banks and Plastics Maritime Limited) and Wadden Action .

In the Banks Action , the plaintiffs’ claims with respect to a stock manipulation scheme were against both NBFL and BMO. The Banks Action has since been settled. [ 26 ] The primary submission of BMO is that it is a pure defendant; as such, it should call evidence last. [ 27 ] It generally supports the order of evidence proposed by NBFL, based on its characterization of the litigation as:

(1) NBFL simply sued for debts, and the defendants in their defences, and the plaintiffs in the Barthe Action , first advanced allegations of stock manipulation and conspiracy involving NBFL; and

(2) NBFL should be entitled to respond to that evidence before calling its own evidence of stock manipulation and conspiracy involving Wadden, Barthe and Ristow. [ 28 ] Dunlop Clients: The “Dunlop” clients state that NBFL commenced the Debt Action in 2001 and the Main Action alleging a stock manipulation scheme in 2003.

It was thereafter that other investors in NBFL picked up on NBFL’s allegations and sued NBFL on the basis that it could not escape liability, for its own wrongdoings – negligence, breach of contract, and breach of fiduciary duty as well as vicariously for Clarke’s wrongdoings. [ 29 ] They note that, when NBFL commenced the Main Action in 2003, as is apparent from other decisions in these proceedings, NBFL did its own investigation and relied upon its own independent assessment of the evidence of a stock manipulation scheme, and was not relying to the allegation made by Wadden in 2001 to the effect that Clarke manipulated the shares in KHI, or alternatively, Clarke, Potter and Colpitts did. [ 30 ] Dunlop submits that to permit NBFL to force those whom it sued to prove the stock manipulation scheme and allow NBFL to, in effect, split its case, would be unfair. [ 31 ] Furthermore, with respect to the Barthe Action , while the pleadings in the Statement of Claim is broad, Mr.

Dunlop states that the claim against NBFL is in respect of the improper manner which NBFL and its broker Clarke dealt with the more than six million dollars that was paid by Barthe and Ristow into NBFL’s accounts, and is not based on the stock manipulation scheme as claimed by NBFL in the Main Action . [ 32 ] Mr. Dunlop submits that the proper order for presentation of evidence should be: i. NBFL as to all claims, whether as plaintiff, defendant by counterclaim or defendant. ii. Calvin Wadden, Craig Dunham, Lowell Weir, Blackwood Holdings and Carol McLaughlin-Weir with respect to all their evidence. iii.

Lutz Ristow and the Estate of Michael Barthe as to all their evidence. iv. Andrea Wadden and her numbered company as to all her evidence. v. BMO as to all its evidence. vi. Rebuttal for any parties in the same order as presentation.

Part IV Analysis [ 33 ] Civil Procedure Rule 51 governs the conduct of trials. CPR 51.05 sets out the order of presentation of evidence. While this Rule is helpful in the normal litigation matrix, it does not help in this case. [ 34 ] Civil Procedure Rule 51.01 and 51.05(6) authorize a presiding judge to direct any order of presentation of evidence. [ 35 ] I agree with counsel for BMO Nesbitt Burns who writes that the applicable law is simply: “An Order of this nature is entirely discretionary.

In examining its discretion, the Court should strive to achieve a just, speedy and inexpensive determination of the actions. ( CPR 1.01 )” [ 36 ] I do not agree entirely with the proposed order for the presentation of the evidence by counsel. Each says the other should advance in full their respective evidence respecting the alleged stock manipulation scheme first, because the other side advanced it first.

Based on the pleadings (I am not familiar with any of the evidence that parties may advance), in my view, each side is partly right and partly wrong. [ 37 ] The first allegation of wrong-doing was made by Wadden, Dunham, Rudolph, Weir and Blackwood in their defences in the Debt Action , commenced by NBFL to collect amounts owed on margin accounts related to KHI shareholdings.

[ 38 ] The allegations of each of these defendants differ from each, and from the stock manipulation allegations advanced by NBFL in the Main Action and its pleadings in the other actions. [ 39 ] Wadden’s defence and counterclaim to the Debt Action contains 21 paragraphs.

It alleges that NBFL and its employee Clarke breached their fiduciary duties, contractual duties and duty of care (in negligence) to him in respect of certain specific acts taken in NBFL’s own interest and in association with Potter and Colpitts. [ 40 ] Dunham’s defence and counterclaim, containing 31 paragraphs, does not cite or rely upon Wadden’s pleadings or NBFL’s much expanded pleadings.

It claims NBFL and Clarke breached their fiduciary duty, contractual duty and standard of care owed to Dunham in certain enumerated particulars. they have limited, if any, similarity to the allegations made by NBFL in the Main Action and its pleadings in the other actions. [ 41 ] The pleadings of Weir and Blackwood, consisting of 21 paragraphs in all, relate to specific communications between NBFL and these defendants.

In one paragraph, Weir and Blackwood incorporate by reference some of the allegations made by Wadden in six paragraphs of his defence. [ 42 ] Rudolph appears to have incorporated into his defence allegations made by Potter (at that time a defendant in the Debt Action ). Potter did allege wrongdoing by NBFL but did not allege a stock manipulation scheme. [ 43 ] In contrast to these short pleadings containing narrowly-described particulars, NBFL’s pleadings in the Main Action set out its allegation of a stock manipulation scheme involving twenty entities in 131 paragraphs.

Its pleadings in the other actions contain similar and lengthy allegations than are substantially broader than anything alleged by the Dunlop clients. NBFL alleges that Wadden, Barthe and Ristow, and the other seventeen entities with whom it has since settled, conspired and acted together or in concert with the intent to manipulate the public market in KHI shares, thereby perpetrating a fraud on the capital markets and upon NBFL. [ 44 ] Contrary to NBFL’s submission to the Court, this is not a “contingent claim”.

The Main Action is a separate action commenced by NBFL alleging far more against the named defendants, than anything pleaded by the Dunlop clients. In previous court applications, NBFL claimed that its stock manipulation claims that led to its commencement of the Main Action and pleadings in the other actions was the product of an independent investigation entered into by NBFL after allegations against, and materials disclosed to, NBFL by Wadden. [ 45 ] The only remaining defendant in the Main Action is Wadden.

NBFL’s claims, as set out in the Main Action, are the same claims as pleaded by NBFL in the Debt Action and the other actions. [ 46 ] Justice Moir’s decision in Saturley v CIBC World Markets Inc , 2011 NSSC 129 , contains a useful outline of the possible options in matrices where different parties have onuses in respect of different issues. In Saturley , there were only two parties, but each held the burden in respect of different issues.

In that case, Justice Moir chose not to endorse the suggestion of allowing the plaintiff to split its case in a “ping-pong” like process, and ordered the plaintiff to go first on all issues, with presumably a generous

interpretation of the right to present rebuttal evidence. If I endorsed the same approach to this multi-action and multi-party proceeding, NBFL, who is the primary protagonist in the Main Action , and in the breadth of its allegations of a stock manipulation scheme, would present all its evidence first, with a generous

interpretation of its right to present rebuttal evidence. [ 47 ] It would be unfair to require NBFL to lead evidence defending itself from the particulars pleaded and claimed by Wadden, Dunham, Weir, Blackwood, Rudolph, Barthe and Ristow before their evidence in respect of their specific allegations of wrong doing against NBFL.

In the first instance, most of the primary allegations against NBFL do not rely upon the stock manipulation scheme between Clarke, Potter, and Colpitts, set out as an alternative in Wadden’s defence and counterclaim in the Debt Action . [ 48 ] Similarly, it would be unfair to require Wadden, Barthe and Ristow to present evidence negating the very extensive allegations and pleadings against them made by NBFL before NBFL had presented that evidence. In the Barthe Action , the plaintiffs appear to have primarily pleaded that NBFL was in breach of its duties to them, not that a stock manipulation scheme existed.

The Barthe Action was commenced after NBFL commenced the Main Action ; the Barthe Action plaintiffs simply piggyback on NBFL’s pleadings in respect of a scheme in which NBFL claimed that Clarke was a party. [ 49 ] First, the Dunlop clients and Rudolph, should present all the evidence they intend to tender in support of their respective claims, in denial of the simple debt claims of NBFL and NBC, and respecting the wrongdoing of NBFL and Clarke, and, to the extent that they rely upon a stock manipulation scheme involving Clarke, Potter and Colpitts, that evidence as well.

The Wadden group should present all the evidence they intend to tender in support of their claims of wrongdoing against BMO Nesbitt Burns, including any claim of their participation in a stock manipulation scheme. [ 50 ] Second, NBFL/NBC should present all the evidence they intend to tender in defence of wrongdoing by them (including any wrongdoing by Clarke).

In addition, because NBFL still pleads a broad conspiracy involving 20 entities, including Clarke, Potter and Colpitts, and also including Wadden, Barthe and Ristow, it should present all the evidence it intends to tender in support of its claims in respect of this broad stock manipulation scheme, and the involvement of Wadden, Barthe and Ristow in it, and any evidence in support of any other claims of wrongdoing against Wadden, Barthe and Ristow. [ 51 ] Third, Wadden, Barthe and Ristow should present all the evidence they intend to tender in response to NBFL’s stock manipulation scheme, and any other evidence by NBFL of other wrongdoing by Wadden, Barthe and Ristow.

Dunham, Weir, Blackwood and Rudolph should present evidence limited to rebutting NBFL/NBC’s evidence of its broad stock manipulation scheme. [ 52 ] Fourth, NBFL should present evidence limited to rebutting evidence presented by Wadden, Barthe, and Ristow. [ 53 ] Fifth, BMO Nesbitt Burns should present all the evidence it intends to tender in defence of the Wadden group’s claims of wrongdoing by it.

[ 54 ] Sixth, the Wadden group should present evidence limited to rebutting evidence presented by BMO Nesbitt Burns. [ 55 ] Normally a proposed order for the presentation of evidence should avoid to the extent possible the need to have witnesses to testify more than once. At this time, I do not know any of the evidence that may be tendered in support of the pleadings.

To require Wadden, representatives of the estate of Barthe, and Ristow to testify first in respect to all issues at the trial and be limited in the extent that they can present evidence in response to NBFL’s stock manipulation scheme, as NBFL submits, would be unfair. Similarly, it would be unfair to require NBFL to rebut claims of wrongdoing by it and Clarke before the Dunlop clients and Rudolph had tendered that evidence. [ 56 ] Because of the unique circumstances of this case, the presentation of evidence requires a more nuanced approach than the courts are normally comfortable with.

The possibility of inefficiency and abuse exists, but it is unfair to either side to require them to put forward all of their evidence in respect of all allegations that may be advanced by a party’s whose evidence will follow their own. [ 57 ] In the result, the Court proposes the order for the presentation of evidence as follows: i. NBFL will lead evidence in support of its claims in the Debt Action against Wadden, Weir, Blackwood and Rudolph which simply raise issues respecting monies lent and owing by the named defendants. ii.

Wadden will present all his evidence in support of the allegations of fact set forth in his defence and counterclaim in the Debt, Main, and Barthe Actions , and his group’s claims against BMO Nesbitt Burns in the Wadden Action . iii. Dunham will lead all his evidence in support of the allegations of fact contained in his defence and counterclaim in the Debt Action . iv. Weir, Blackwood, and McLaughlin-Weir, will lead all their evidence in support of their allegations of fact against NBFL in their defence and counterclaim in the Debt Action, and against NBC in the defence and counterclaim in the Weir Action . v.

Barthe and Ristow will lead all their evidence in support of the allegations of fact contained in their Statement of Claim. vi. Rudolph will lead all his evidence in support of the allegations of fact contained in his defence and counterclaim in the Debt Action . vii.

NBFL/NBC will lead all its evidence in support of its response to the allegations of fact advanced by Wadden, Dunham, Weir, Blackwood, McLaughlin-Weir, Barthe, Ristow and Rudolph, as well as all its evidence in respect of the allegations of fact that support its theory that the 20 entities sued in the Main Action (and claimed against in pleadings in the other actions) conspired and acted jointly or in concert with each other with the intent of manipulating the public market and shares in KHI shares, and thereby perpetrated a fraud on the capital markets and specifically on NBFL, and including, amongst those 20 entities sued, Wadden, Barthe and Ristow. viii.

Wadden, Barthe and Ristow will lead evidence in support of the allegations of fact that respond to (

i) NBFL’s claims of wrongdoing by Wadden, Barthe and Ristow, and (ii) NBFL’s theory of the stock manipulation scheme and their roles in it. ix. BMO Nesbitt Burns will lead evidence in support of allegations of fact that respond to the Wadden group claims against it. x. Finally, the Wadden group will lead proper rebuttal evidence limited to BMO Nesbitt Burns’ evidence. J.