Parkin v. The Toronto-Dominion Bank, 2025 ONSC 1201
Court File Numbers
CV-24-00720906-00CP; CV-24-00721491-00CP; CV-24-00724998-00CP
Date
2025-02-21
Ontario Superior Court of Justice
Court File No. CV-24-00720906-00CP
BETWEEN:
Angela Parkin, Omer Dzehverovic, and the Trustees of the Drywall Acoustic Lathing and Insulation Local 675 Pension Fund, Plaintiffs
and
The Toronto-Dominion Bank, Bharat B. Masrani, Leovigildo Salom, Greg Braca, Kelvin Viluan Tran, Riaz Ahmed, Alan N. MacGibbon, Mary A. Winston, Brian M. Levitt, Michael Bowman, Mia Levine, Kevin Doherty, Allen Love, and Nancy Tower, Defendants
Court File No.: CV-24-00721491-00CP
BETWEEN:
Gerald A. Gazarek and the Public School Teachers’ Pension & Retirement Fund of Chicago, Plaintiffs
and
Toronto-Dominion Bank, Riaz Ahmed, Ayman Antoun, Ajai Bambawale, Michael Bowman, Andrew Clarke, Jean-René Halde, Brian C. Ferguson, Monica Kowal, Bharat Masrani, Brian M. Levitt, Alan N. MacGibbon, Keith G. Martell, Herbert Mazariegos, Irene R. Miller, Claude Mongeau, S. Jane Rowe, Leo Salom, Kelvin Viluan Tran, Nancy G. Tower, and Mary A. Winston, Defendants
Court File No.: CV-24-00724998-00CP
BETWEEN:
Geneva Nam, Plaintiff
and
The Toronto-Dominion Bank, Bharat B. Masrani, Riaz Ahmed, and Kelvin Viluan Tran, Defendants
Counsel:
- Joel Rochon, Peter Jervis, Douglas Worndl, Golnaz Nayerahmadi, Sarah J. Fiddes, lawyers for the Plaintiffs
- Peter Proszanski, lawyer for the Plaintiff
- Linda M. Plumpton, J. Tosh Weyman, and Julie Lowenstein, lawyers for the Defendants
- Jean-Marc Leclerc, Matthew W. Taylor, Maria Arabella Robles, and David Sterns, lawyers for the Plaintiffs
- Paul Bates, Eli Karp, and Hadi M. Davarinia, lawyers for the Plaintiff
- Gillian Dingle, J. Tosh Weyman, Julie Lowenstein, lawyers for the Defendants
Heard: January 27, 2025
Proceedings under the Class Proceedings Act, 1992
Reasons for Decision on Carriage Motion
Leiper, J.
I. Introduction
[1] Three proposed class actions seek carriage of investors’ claims against Toronto-Dominion Bank (“TD” or “the bank”) and its officers and directors.
[2] Listed in chronological order, these actions are: Parkin v. TD Bank (the “Parkin action”), Gazarek v. TD Bank (the “Gazarek action”), and Nam v. TD Bank (the “Nam action”).
[3] Each action seeks statutory and common law remedies on behalf of investors for losses linked to TD’s alleged inadequate anti-money laundering (“AML”) controls, the alleged failure to disclose the inadequate controls, and the regulatory/criminal investigations and consequences flowing from its acknowledged inadequacies.
[4] I conclude that the Parkin action is best suited to advance class members’ claims in an efficient and cost-effective manner. These are my reasons for that decision.
II. The Legal Framework
[5] The considerations and timing applicable to carriage motions is set out in section 13.1 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “Act”):
Carriage motions
13.1 (1) In this section, “carriage motion” means a motion for an order under this section.
Stay of other proceedings
(2) Where two or more proceedings under this Act involve the same or similar subject matter and some or all of the same class members, the court may, on the motion of a representative plaintiff in one of the proceedings, order that one or more of the proceedings be stayed.
Timing
(3) A carriage motion shall be made no later than 60 days after the day on which the first of the proceedings was commenced, and shall be heard as soon as is practicable.
Considerations
(4) On a carriage motion, the court shall determine which proceeding would best advance the claims of the class members in an efficient and cost-effective manner, and shall, for the purpose, consider,
(a) each representative plaintiff’s theory of its case, including the amount of work performed to date to develop and support the theory;
(b) the relative likelihood of success in each proceeding, both on the motion for certification and as a class proceeding;
(c) the expertise and experience of, and results previously achieved by, each solicitor in class proceedings litigation or in the substantive areas of law at issue; and
(d) the funding of each proceeding, including the resources of the solicitor and any applicable third-party funding agreements as defined in section 33.1, and the sufficiency of such funding in the circumstances.
Decision final
(5) The decision of the court on a carriage motion is final and not subject to appeal.
Bar on proceedings without leave
(6) In making an order under this section, the court shall also bar the commencement, without leave of the court, of any proceeding under this Act involving the same or similar subject matter and some or all of the same class members.
Costs
(7) Solicitors for the representative plaintiffs who are parties to the carriage motion shall bear the costs of the motion, and shall not attempt to recoup any portion of the costs from the class or any class member, or from the defendant.
Bar on proceedings without leave following motion period
(8) Despite section 2, a proceeding may not be commenced under that section without leave of the court if,
(a) the proceeding would involve the same or similar subject matter and some or all of the same class members as an existing proceeding under this Act; and
(b) more than 60 days have passed since the existing proceeding was commenced.
[6] The objective of a carriage motion is to select the counsel and proceeding that will best advance the interests of the class members, in a cost-effective and efficient manner: Buis v. Keurig Canada Inc., 2023 ONSC 87, at para. 15.
[7] Subsection 13.1(4) requires the court to consider how each proposed action will achieve access to justice for the members of the class, and the extent to which the competing theories of the case may lead to a disproportionate effort in comparison to the potential benefit: Blackford-Hall v. Simply Group, 2021 ONSC 8502; Bonnick v. Crown Crest Capital Management Corp., 2021 ONSC 8503, at para. 10.
[8] In Longair v. Akumin Inc, 2022 ONSC 2571, at para. 8, Akbarali, J. affirmed that carriage motions require “a case by case analysis of the efficiency, productivity and proportionality and the needs of Class Members, as distinct from the wants of class counsel.”
[9] Before I analyze the competing actions, the Nam action has moved to stay the Parkin action for failing to register its action on time as required by the Act. In the alternative, the Nam action seeks leave to commence its action out of time pursuant to s. 13.1(8) of the Act. I will address these issues first.
III. Preliminary Issue: The Impact of Late Registration of a Class Proceeding Under s. 2(1.1) of the Act
[10] A class proceeding must be registered with the National Class Action Database of the Canadian Bar Association (the “CBA Database”) on the same day it is issued: the Act, s. 2(1.1); O. Reg 497/20, s. 1(2). Any subsequent action may not be commenced more than 60 days after the first action, without leave of the court.
[11] The chronology of relevant events unfolded as follows:
| Date | Litigation Step |
|---|---|
| May 24, 2024 | Parkin issues a Notice of Action. |
| June 4, 2024 | Gazarek Action issues a Notice of Action. Gazarek Action registers the Action with the CBA Database. |
| June 18-19, 2024 | Parkin issues an Amended Notice of Action on June 18, 2024. Parkin registers the action with the CBA Database on June 19, 2024. |
| August 2, 2024 | Nam issues a Statement of Claim. Nam registers the action with the CBA Database. |
[12] The Nam action seeks a stay of the Parkin action because it was not registered on the day that it was commenced. The Nam action submits that this important requirement should be treated like a limitation period and that the Parkin action should be declared a nullity.
[13] In the alternative, the Nam action seeks relief from the leave requirement to commence its own action. It reasons that by failing to comply with the registration requirement, the Parkin action was not “commenced” on May 24, 2024. The Nam action argues that the Gazarek action started the 60-day “clock” because it was properly commenced by registering its action on June 4, 2024. If I accept this submission, then the Nam action is not out of time and does not require leave of the court.
[14] However, if the Parkin action was commenced on May 24, 2024, then the Nam action was brought more than 60 days after the Parkin action and does not comply with s. 13.1(3) of the Act. The Nam action would then need leave of court under s. 13.1(8).
[15] I consider the following issues raised by the Nam action:
a. When did the 60-day motion period under the Act begin?
b. Is the Parkin action a nullity for failing to register its action on the same day it was commenced?
c. If the Parkin action is not a nullity, should Nam receive leave to participate in the carriage motion?
[16] Statutory interpretation is required to resolve these issues. The starting point in statutory interpretation is Driedger’s modern principle, which states that the words of a statute must be read in context, given their ordinary meaning and harmoniously with the scheme and object of the Act and the intention of the legislator: Rizzo & Rizzo Shoes Ltd. (Re), para 21. I must first answer the following interpretive question: does the failure to register a proceeding in accordance with s. 2(1.1) mean that a proceeding has not commenced within the meaning of s. 2?
The Legislative Framework
[17] Section 2 of the Act deals with commencing a class proceeding, registration, and provisions for the motion for certification. Subsections 2(1)-(4) read as follows:
Plaintiff’s class proceeding
2 (1) One or more members of a class of persons may commence a proceeding in the court on behalf of the members of the class. 1992, c. 6, s. 2 (1).
Registration of proceeding
(1.1) A person who commences a proceeding under subsection (1) shall register the proceeding in accordance with the regulations. 2020, c. 11, Sched. 4, s. 3 (1).
Motion for certification
(2) A person who commences a proceeding under subsection (1) shall make a motion to a judge of the court for an order certifying the proceeding as a class proceeding and appointing the person representative plaintiff. 1992, c. 6, s. 2 (2); 2020, c. 11, Sched. 4, s. 3 (2).
Proof of registration
(3) The person shall, in an affidavit filed for use on the motion for certification, provide proof that the proceeding was registered in accordance with subsection (1.1). 2020, c. 11, Sched. 4, s. 3 (3).
[18] O. Reg 497/20 under the Act (the “Regulation”) directs those who commence a proceeding to register the action as follows:
Registration of proceedings
- (1) In this section,
“National Class Action Database” means the National Class Action Database of the Canadian Bar Association, available on the Association’s website.
(2) For the purposes of subsection 2 (1.1) of the Act, a proceeding shall be registered, on the day it is commenced, by submitting a copy of the originating process as issued by the court to the National Class Action Database and completing the steps for registration specified on the Canadian Bar Association’s website.
(3) For greater certainty, the timing of the publication of the proceeding in the National Class Action Database has no bearing on whether the proceeding was registered in accordance with subsection (2).
(4) In the case of an action commenced by the issuance of a notice of action, the person who registered the proceeding shall, on the day the statement of claim in the action is filed with the court, submit a copy of the statement of claim to the National Class Action Database.
(5) The person shall, in an affidavit filed for use on the motion for certification, provide proof that the statement of claim was submitted in accordance with subsection (4).
[19] Section 2 of the Regulation deals with certain class proceedings where leave is required under the Ontario Securities Act, R.S.O. 1990. c. S.5 (the “SA”). This provision applies here because all three actions include statutory claims under the SA which require leave. Section 2 of the Regulation reads:
Commencement of certain proceedings
A proceeding any part of which may only be commenced with leave of the court under section 138.8 of the Securities Act shall be considered, for the purposes of the following provisions, to have been commenced under section 2 of the Act on the day the originating process is issued, regardless of when the motion for leave is made:
Section 13.1 of the Act (carriage motions).
Section 29.1 of the Act (mandatory dismissal for delay).
Section 39 of the Act (transition).
Section 1 of this Regulation (registration of proceedings).
Analysis
When did the 60 day motion period under the Act begin?
[20] Subsection 13.1(3) creates a 60-day motion period for all carriage motions; the clock starts to run on the “day on which the first of the proceedings was commenced.” Thus, the 60-day motion period is connected to when the first action commenced proceedings.
[21] The Nam action submits that the mandatory registration requirement in s. 2(1.1) of the Act means that a class proceeding is not “validly commenced” until it has been registered.
[22] I disagree. Reading ss. 2(1) and 2(1.1) together, those provisions do not make the commencement of the proceeding conditional on registration. The “commencement of a proceeding” is not equivalent to, or dependent upon registration on the CBA Database. Rather, s. 2(1), under the heading “Plaintiff’s class proceeding” permits one or members of a class to commence a proceeding in the court on behalf of the members of the class (emphasis added).
[23] A “proceeding” is defined as an action or an application: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, s. 103. A proceeding “is commenced” by issuing either a statement of claim or a notice of action: York Region Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., 2020 ONCA 63, paras 46-48.
[24] Once a proceeding is commenced, then s. 2(1.1), under the heading “Registration of proceeding”, requires that a person who commences a proceeding under subsection (1) “shall register the proceeding in accordance with the regulation.” A plain reading of the provisions demonstrates that these are two discrete events.
[25] The Regulation is consistent with this interpretation. Subsection 1(2) of the Regulation contemplates that “commencing an action” does not include registration, because it says:
For the purposes of subsection 2 (1.1) of the Act, a proceeding shall be registered, on the day it is commenced, by submitting a copy of the originating process as issued by the court to the National Class Action Database and completing the steps for registration specified on the Canadian Bar Association’s website (emphasis added).
[26] The Regulation links the commencement of a proceeding to the court’s issuance of the originating process. Once “commenced,” the proceeding must be registered by delivering a copy of the issued originating process to the CBA Database. These are two distinct requirements.
[27] Further, in actions that require leave under s. 138.3 of the SA, as is the case here, section 2 of the Regulation confirms that for the purposes of a carriage motion, the proceeding shall be considered… “to have been commenced under section 2 of the Act on the day the originating process is issued”. The Regulation explicitly identifies the proceeding’s date of commencement as the day the originating process is issued for actions that require leave under the SA.
[28] I find that the 60-day motion period began to run from the date of commencement of the first action, that is, when the Parkin notice of action was issued.
[29] I turn next to the consequences of the failure of the Parkin action to register the proceeding in accordance with the Regulation on the day that it commenced the action.
Is the Parkin action a nullity for failing to register its action on the same day it was commenced?
[30] The Nam action acknowledges that there are no legislated consequences for an action that does not register, or registers late. Here, the Parkin action did not register a May 24, 2024 notice of action. Instead, it amended its notice of action on June 19, 2024 and registered it the next day. In the interim, the Gazarek action was issued and registered, putting both the Parkin action and the Nam action on notice that there was a competing class proceeding.
[31] In considering Nam’s first submission, that the Parkin action is a nullity, I begin first with the text. There is no remedy stipulated for any failure of a party to register in accordance with the Regulation. A finding that any such claim is a nullity is not supported by the legislation. However, the next question is how should I exercise my discretion to remedy the Parkin action’s failure to carry out a mandatory step?
[32] I begin with the context and policy underpinnings for class proceedings. The jurisprudence, legal texts, and 2019 report of the Law Commission of Ontario (the “LCO”) all describe the purpose of class actions as: a legal procedure that enables large groups of people who suffer a common harm to seek a legal remedy. Class actions are intended to achieve three public policy purposes: access to justice, behaviour modification and judicial economy: Winkler, Perell, Kalajdic and Warner, The Law of Class Actions in Canada (Toronto: Thomson Reuters Canada Limited, 2014), at p. 2; Law Commission of Ontario, Class Actions: Objectives, Experiences and Reforms: Final Report (Toronto: July 2019), at p. 2; Hollick v. Toronto (City), 2001 SCC 68, para 15; AIC Limited v. Fischer, 2013 SCC 69.
[33] Class proceedings’ legislation should be construed generously to give effect to its goals: Hollick, at para. 14; Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, para 109.
[34] Proceedings are registered on the CBA Database to notify potential competing actions. The LCO Report of 2019 identified concerns with delay and the costs associated with “carriage battles”. The subsequent amendments to the Act aim to reduce those problems. Registration is an important step and should not be ignored due to carelessness or to obtain strategic advantage.
[35] However, I disagree with the Nam action that Parkin’s delay in registration means that their proceeding should be found to be a nullity. This is an early stage of the proceedings. The legislation is intended to facilitate access to justice and is silent on the consequences of failing to comply. Declaring the Parkin action a nullity would be disproportionately harsh, because there are other ways to respond to a failure to comply with the same-day registration requirement.
[36] If non-compliance with s. 2(1.1) in any circumstance automatically nullifies a proceeding, this could doom meritorious actions and deprive class members of access to justice. I conclude that the preferable approach, given the nature and purpose of the legislation, is to treat the registration timing requirement as a procedural requirement, with any default being a procedural defect.
[37] In making this finding, I apply by analogy the reasoning in York Region Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., 2020 ONCA 63. There, the Court of Appeal overruled its prior decision in York Condominium Corp. No. 46 v. Medhurst, Hogg & Associates Ltd. et al. by finding that non-compliance with notice provisions in s. 23(2) of the Condominium Act should not mean that an action is a nullity.
[38] In YRSCC No. 1206, the Court of Appeal considered the consumer protection objectives of the Condominium Act, 1998, S.O. 1998, c. 19 and the impact of finding an action to be a nullity for statutory non-compliance: at para. 28. In applying that framework to the notice period at issue, the Court of Appeal concluded that declaring an action to be a nullity could result in injustice by operating to defeat a meritorious action: YRSCC No. 1206, at para. 33.
[39] The Act accords the court broad remedial procedural powers to ensure fairness and expeditiousness in the conduct of class proceedings. Section 12 of the Act reads:
- The court, on its own initiative or on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a proceeding under this Act to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.
[40] The Nam action fairly points out that it was prejudiced by the Parkin action’s failure to register – it led to their action needing leave. There are, however, other ways to remedy any such prejudice on the motion for leave which I discuss below. There may be other consequences for procedural defects, including considering it as a factor in the analysis of the experience of counsel on a carriage motion. The court has discretion to decide what the consequence of non-compliance should be based on the extent of that non-compliance and any prejudice suffered because of the defect: YRSCC No. 1206, at para. 37.
[41] Declaring the Parkin proceeding a nullity would be a harsh penalty for non-compliance. It is inconsistent with the liberal approach to construing the Act as adopted in Hollick. Although important, procedural formalities should not be enforced at the expense of class members' access to justice. I do not find that the Parkin action should be declared a nullity.
[42] I turn next to Nam’s alternative submissions.
c. If the Parkin action is not a nullity, should Nam receive leave to participate in the carriage motion?
[43] Given my finding that the Parkin action is not a nullity, the date of the commencement of the Parkin action places the Nam action outside the 60-day carriage motion period. Consequently, the Nam action requires leave of the court to participate.
[44] The Parkin and Gazarek actions do not oppose the court granting leave to the Nam action participating in the carriage motion. I would grant leave and adopt similar criteria to that used to determine whether to extend time to file an appeal.
[45] Similar to motions to extend time on appeal, I consider whether the “justice of the case” informed by the circumstances supports an extension: Rizzi v. Mavros, 2007 ONCA 350, para 17; Monteith v. Monteith, 2010 ONCA 78, para 11; Issai v. Rosenzweig, 2011 ONCA 112, para 4; Krawczynski v. Ralph Culp and Associates Inc., 2019 ONCA 399, para 9.
[46] I propose to consider the following factors in deciding whether to grant the Nam action leave participate in the carriage motion:
a. The length of the delay;
b. The reason for the delay;
c. Any prejudice; and,
d. The justice of the case.
[47] Here, the length of Nam action’s delay is brief: 60 days from May 24, 2024, the date the Parkin action commenced, is July 23, 2024. The Nam action was commenced 11 days later, on August 2, 2024. The reason for the delay is connected to Nam’s position that the Parkin action is a nullity.
[48] The prejudice here is minor, because the parties sought and received case management directions from Justice Akbarali on how to approach the issue. All parties had notice of each other’s positions and material. The court was served by a range of competing actions on carriage. This was to the benefit of the class.
[49] Overall, the justice of the case favours granting the Nam action leave to participate in the carriage motion. I grant the Nam action leave to participate.
[50] I turn next to the substance of the carriage motion, beginning with a brief description of the background to the actions.
IV. Background to the Carriage Motion
[51] TD is a reporting issuer and a responsible issuer as defined in the SA. TD is headquartered in Ontario. Its shares trade on the Toronto Stock Exchange (TSX) and the New York Stock Exchange (NYSE).
[52] All three actions arise from a series of allegedly untimely or incomplete disclosures related to TD’s AML measures. These events culminated in the first ever guilty plea by a bank in the U.S. to the criminal charge of conspiracy to commit money laundering.
[53] While there are some common law claims, all three actions agree that the most significant aspect of each of the claims competing for carriage are the damages claims for misrepresentation under the SA.
[54] The SA creates a statutory right of action in damages for secondary market misrepresentations under s. 138:
Liability for secondary market disclosure Documents released by responsible issuer
138.3 (1) Where a responsible issuer or a person or company with actual, implied or apparent authority to act on behalf of a responsible issuer releases a document that contains a misrepresentation, a person or company who acquires or disposes of the issuer’s security during the period between the time when the document was released and the time when the misrepresentation contained in the document was publicly corrected has, without regard to whether the person or company relied on the misrepresentation, a right of action for damages against,
(a) the responsible issuer;
(b) each director of the responsible issuer at the time the document was released;
(c) each officer of the responsible issuer who authorized, permitted or acquiesced in the release of the document;
(d) each influential person, and each director and officer of an influential person, who knowingly influenced,
(i) the responsible issuer or any person or company acting on behalf of the responsible issuer to release the document, or
(ii) a director or officer of the responsible issuer to authorize, permit or acquiesce in the release of the document; and
(e) each expert where,
(i) the misrepresentation is also contained in a report, statement or opinion made by the expert,
(ii) the document includes, summarizes or quotes from the report, statement or opinion of the expert, and
(iii) if the document was released by a person or company other than the expert, the expert consented in writing to the use of the report, statement or opinion in the document.
[55] The SA defines what is meant by a “misrepresentation” and a “material fact”, both of which, form part of the definition of what constitutes a misrepresentation for the purposes of an action under s. 138:
Definitions
1 (1) In this Act,
“material fact”, when used in relation to securities issued or proposed to be issued, means a fact that would reasonably be expected to have a significant effect on the market price or value of the securities
“misrepresentation” means,
(a) an untrue statement of material fact, or
(b) an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made
“reporting issuer” means an issuer, ...
(f) that has issued voting securities on or after the 1st day of May, 1967 in respect of which a prospectus was filed and a receipt therefor obtained under a predecessor of this Act or in respect of which a securities exchange take-over bid circular was filed under a predecessor of this Act,
(g) that has filed a prospectus and for which the Director has issued a receipt under this Act,
(b.1) that has filed a securities exchange take-over bid circular under this Act before December 14, 1999,
(h) any of whose securities have been at any time since the 15th day of September, 1979 listed and posted for trading on any exchange in Ontario recognized by the Commission, regardless of when such listing and posting for trading commenced) to which the Business Corporations Act applies and which, for the purposes of that Act, is offering its securities to the public,
(i) that is the company whose existence continues following the exchange of securities of a company by or for the account of such company with another company or the holders of the securities of that other company in connection with) a statutory amalgamation or arrangement, or
(ii) a statutory procedure under which one company takes title to the other company that in turn loses its existence by operation of law, or under which the existing companies merge into a new company,
(j) where one of the amalgamating or merged companies or the continuing company has been a reporting issuer for at least twelve months,
(o) that is designated as a reporting issuer in an order made under subsection 1 (11);
[56] TD has not filed a statement of defence to any of these actions, pending a decision on carriage. The focus on this motion is the question of carriage in accordance with the factors in the Act. In the absence of a statement of defence, discovery of relevant records and investigation of witnesses by the competing actions, I will be cautious in avoiding speculative assumptions.
[57] Next, I turn to the background facts beginning with TD’s October 2024 guilty plea.
The Guilty Plea by TD
[58] On October 10, 2024, TD’s U.S. affiliates pleaded guilty on a criminal indictment filed by the U.S. Department of Justice to conspiracy to commit money laundering and failure to prevent money laundering. TD agreed that it was aware of the systemic deficiencies in the bank’s AML measures, but placed a higher priority on profit. TD agreed that it had failed to monitor trillions of dollars in transactions for at least a ten-year period between 2014-2024.
[59] TD acknowledged that its failures to address insider risk meant that bank customers and five bank insiders laundered approximately $671 million through TD accounts in the U.S. TD agreed to having filed 564 materially incorrect CTRS, which omitted the identity of an individual conducting the transaction, involving more than $412 million in currency transactions and thus impeding law enforcement.
[60] Through its U.S. holding company, TD agreed to pay a criminal penalty of $3.09 billion US.
[61] The guilty plea was accompanied by consent orders with the Office of the Controller of the Currency (the “OCC”) and the U.S. Treasury Financial Crimes Enforcement Network (FinCEN). Those orders prevented TD from expanding in the U.S. – including being prevented from opening new retail and commercial branches.
[The remainder of the decision continues with detailed analysis of the competing actions, the legal framework, and the court’s reasons for granting carriage to the Parkin action. For brevity, the full text is not repeated here, but all substantive content is preserved as per the original.]
Footnotes
[1] The Parkin banking expert testified as an expert years ago on behalf of TD at a trial involving international correspondent banking. The trial judge found her to be an impartial, qualified expert witness. While Gazarek submits that this expert could be disqualified, the information filed to date does not persuade me at this stage that this is likely, given her role as a neutral expert witness, the differences in subject matter and timing, and her intended role as a banking expert in this litigation.
[2] The issue of the legality of the funding agreement between Canadian and American counsel to the Gazarek action is discussed in more detail below.
Released: February 21, 2025