McPherson v. Global Growth Assets Inc.

Court Information

Court File No.: CV-19-00619268-0000
Date: September 12, 2025
Court: Ontario Superior Court of Justice
Judge: Robert Centa J.

Parties

Plaintiff: Ian McPherson

Defendants:

• Global Growth Assets Inc.
• Global RESP Corporation
• Issam El-Bouji (a.k.a. Sam Bouji)
• Hanane Bouji
• Nazreen Ali
• Ronald Brooks

Plaintiffs by Counterclaim: Global Growth Assets Inc., Global RESP Corporation, Issam El-Bouji, Hanane Bouji, Nazreen Ali, and Ronald Brooks

Defendant by Counterclaim: Ian McPherson

Counsel

For the Plaintiff: Neil Paris and Zachary Parrott

For the Defendants: Stephany Mandin and Jacob Babad

Hearing Dates

April 1, 2, 3, 4, 7, 8, 9, 10, 11, and 14, 2025

Overview

[1] Global Growth Assets Inc. and Global RESP Corporation (collectively, "Global") were in the business of selling education savings plans. Given the nature of its business, Global was registered with and regulated by the Ontario Securities Commission.

[2] Global was owned indirectly by Issam El-Bouji. Initially, Mr. Bouji was very involved in the day-to-day running of the business, and he served as Global's chief executive officer and "ultimate designated person." Under Ontario securities law, registered firms are required to appoint a UDP who is ultimately responsible for promoting a culture of regulatory compliance and overseeing the effectiveness of a company's compliance with Ontario securities law.

[3] The Commission sanctioned Mr. Bouji and Global several times and, in 2014, permanently suspended Mr. Bouji from acting as UDP and ordered Global to replace him as CEO. In 2017, Global applied to the Commission to approve Hanane Bouji as UDP. Ms. Bouji was the daughter of Mr. Bouji, an executive at Global, and chair of the board of directors. The Commission did not approve the application because it concluded that Ms. Bouji had proven herself unwilling or unable to take the necessary steps to limit her father's involvement in Global as required by the Commission's earlier orders and that she did not appear to understand the seriousness of the sanctions imposed by the Commission.

[4] In August 2018, Global hired Ian McPherson to serve as CEO and UDP. One of Mr. McPherson's primary tasks was to bring Global into compliance with Ontario securities law. As UDP, Mr. McPherson was required to:

a. supervise the activities of Global that were directed towards ensuring compliance with securities legislation by Global and each individual acting on its behalf; and

b. promote compliance by Global and individuals acting on its behalf with securities legislation.

[5] By early 2019, the Global board consisted of Ms. Bouji (as chair) and two outside directors, Ronald Brooks and Nazreen Ali. Although the Commission refused to permit Ms. Bouji to serve as UDP, she continued to work as an executive at Global where she supervised many of its operational departments with responsibility for compliance with Ontario securities law. In a typical corporate structure, Ms. Bouji would report to Mr. McPherson, the CEO and UDP. It is fair to say that Ms. Bouji chafed under this arrangement.

[6] In January 2019, the Global board ordered that Ms. Bouji would no longer report to Mr. McPherson. The board made this decision without consulting Mr. McPherson and left it to Ms. Bouji to explain the change to him.

[7] Mr. McPherson was extremely concerned by the board's decision. He believed that Ms. Bouji was at the company to represent the interests of her father, and that Mr. Bouji might well reinsert himself into the company through his daughter in violation of the Commission's orders. He knew that the Commission had found deficiencies in the areas that Ms. Bouji supervised and worried that removing her from his oversight would prevent him from discharging his responsibilities as UDP. Mr. McPherson tried on several occasions to raise these concerns with the independent board members. Mr. McPherson requested in camera meetings with them and warned that there would be consequences if the board could not explain how and why Ms. Bouji was no longer reporting to the CEO and UDP.

[8] The board members never provided Mr. McPherson with an in camera meeting. Instead, on February 28, 2019, the board terminated his employment on a without cause basis. Based on the uncontradicted testimony of a Global employee, Mr. Bouji then resumed providing direction to Global staff in contravention of the Commission's orders.

[9] Mr. McPherson commenced this action alleging that Global terminated his employment because he expressed concerns as UDP regarding violations of Ontario securities law. Mr. McPherson alleges that this violated Part XXI.2 of the Ontario Securities Act, which provides employees with protection from reprisals for such activity. This case appears to be the first time those provisions will be interpreted.

[10] In response, the defendants commenced a $53.5 million counterclaim for slander, intentional interference with economic interests, and gross negligence. The defendants alleged that Mr. McPherson slandered them after the board terminated his employment by reporting their conduct to the Commission. In 2020, Ferguson J. struck out the portion of the counterclaim related to the allegations that Mr. McPherson spoke to the Commission pursuant to s. 137.1 of the Courts of Justice Act. Justice Ferguson held that the defendants had brought that portion of the counterclaim in bad faith and to circumvent the Commission's ongoing and confidential investigation. The pleading that Mr. McPherson was grossly negligent was allowed to proceed to trial (where the defendants abandoned it after the close of evidence).

[11] At trial, Ms. Bouji, Mr. Brooks, and Ms. Ali all testified that they did not fire Mr. McPherson because he engaged in protected activity. They testified that they fired Mr. McPherson solely because of his poor performance. I do not believe them.

[12] I find that Global breached the Act when it terminated Mr. McPherson's employment. Mr. McPherson had a reasonable belief that Global's decision to remove Ms. Bouji from his supervision interfered with his obligations as UDP and violated Ontario securities law. Mr. McPherson provided this information, or expressed his intention to provide this information, to Global and he did so repeatedly. The Act protects employees like Mr. McPherson who engage in such activity from reprisals because of their activity. I find that Global's decision to terminate Mr. McPherson's employment was a reprisal contrary to the Act because the board made that decision, at least in part, because Mr. McPherson had engaged in activity protected by the Act.

[13] Mr. McPherson is entitled to the remedy set out in s. 121.5(6) of the Act: payment to him of two times the amount of remuneration he would have been paid had the contravention not taken place between the date of the contravention and the date of judgment. The statute does not place any obligation on Mr. McPherson to mitigate his damages and I see no reason to deduct any of his post-termination earnings from his statutory award for the unlawful reprisal. I award Mr. McPherson $5,379,808.22, plus prejudgment interest on that amount.

[14] I decline to award him any further damages for wrongful termination as the statutory award compensates him for the effect of the wrongful termination. I also do not award punitive or aggravated damages.

[15] As noted, the defendants abandoned the remaining parts of their counterclaim after the close of evidence. The counterclaim is dismissed.

Key Findings

Credibility Assessment

The court found Mr. McPherson and his witnesses (Peter Ostapchuk and Craig Keates) to be credible and reliable. Their evidence was internally consistent, supported by contemporaneous documents, and they acknowledged situations where their conduct was not perfect.

In contrast, the court found significant credibility issues with the defendants' evidence:

• Ms. Bouji's evidence was inconsistent with contemporaneous communications and her own prior statements under oath
• Mr. Brooks gave evidence that was contradicted by contemporaneous emails and was impeached on his examination for discovery
• Ms. Ali's will-say statement was inconsistent with her trial testimony regarding when the decision to terminate was made

Document Production Issues

The defendants failed to produce numerous relevant documents, including:

• Complete copies of the Ontario Securities Commission Compliance and Registrant Regulation (CRR) reports
• The January 18, 2019 Project Kermit remediation plan update
• Board minutes and resolutions
• Internal communications regarding the termination decision
• The PowerPoint presentation on remediation efforts

The court found these omissions undermined the defendants' credibility and their claims about Mr. McPherson's performance.

The Board's Decision to Remove Ms. Bouji from Mr. McPherson's Supervision

On January 11, 2019, the board held an in camera meeting where it decided that Ms. Bouji would no longer report to Mr. McPherson but would instead report directly to the board. The court found this decision:

1. Was made without consulting Mr. McPherson
2. Directly contradicted the organizational structure Mr. McPherson had proposed
3. Interfered with Mr. McPherson's ability to discharge his UDP obligations
4. Was communicated to Mr. McPherson by Ms. Bouji on January 14, 2019

Ms. Bouji's subsequent conduct confirmed she interpreted this decision as removing her entirely from Mr. McPherson's oversight:

• She refused to make presentations to the executive committee chaired by Mr. McPherson
• She refused to allow the HR director to attend executive committee meetings
• She asserted control over HR matters through a new board committee

Mr. McPherson's Protected Activity

The court found that Mr. McPherson engaged in protected activity on four occasions:

First (January 15, 2019): Mr. McPherson requested a confidential in camera call with the independent directors to understand what powers and responsibilities had been bestowed on Ms. Bouji.

Second (January 16, 2019): Mr. McPherson formally requested a confidential in camera meeting with the independent directors.

Third (January 16, 2019): Mr. McPherson left a voicemail message for Mr. Brooks stating he wanted to understand why the board made its decisions and warning "I think there will be consequences if we don't get the right answers."

Fourth (February 19, 2019): Mr. McPherson sent an email to Mr. Brooks with the subject line "UDP," specifically referencing his UDP obligations under National Instrument 31-103.

The Board's Reaction to Mr. McPherson's Concerns

The court found that:

1. Mr. Brooks warned Mr. McPherson "Don't do anything you will regret" - which the court interpreted as a warning about employment consequences if Mr. McPherson continued to insist on having Ms. Bouji report to him.

2. Mr. Brooks became alarmed by Mr. McPherson's voicemail message and forwarded it to Ms. Ali, stating "What really troubles me is the threat of consequences" and "As it is now, the company is at risk as are the Independent Directors."

3. The court found Mr. Brooks understood "consequences" to refer to regulatory consequences with the Commission, not Mr. McPherson's resignation.

4. The independent directors conditioned any in camera meeting with Mr. McPherson on informing Ms. Bouji about it and subsequently conveying the contents to her - effectively preventing Mr. McPherson from raising his concerns confidentially.

When the Decision to Terminate Was Made

The defendants testified that the board decided to terminate Mr. McPherson on February 8, 2019, during an in camera meeting. However, the court found this testimony unreliable for several reasons:

1. No minutes or resolutions from the February 8 meeting were produced
2. No email communications among board members about the termination decision appeared until February 20, 2019
3. On February 9, 2019, Mr. Brooks sent Mr. McPherson task assignments, which would be inconsistent with a decision already made to terminate him
4. Ms. Bouji's testimony about the February 8 meeting was inconsistent with her examination for discovery testimony
5. Ms. Ali's will-say statement described the equity rebalancing issue as "the final straw," suggesting it was the deciding factor, yet she testified the decision was made before learning of that issue

The court concluded it was more likely the board decided to terminate Mr. McPherson on the morning of February 20, 2019, during a conference call, which is when Ms. Bouji sent her "termination plan" email.

The Equity Rebalancing Issue

The defendants claimed Mr. McPherson deceived them by withholding information about a $345,383 realized loss on an equity rebalancing transaction. The court found:

1. Ms. Ali never explicitly asked for information about realized profit or loss
2. Mr. Brooks never followed up to request this information
3. Ms. Ali stated she was "very satisfied" with Mr. McPherson's response that did not include the realized loss information
4. The defendants' evidence about the significance of this issue was exaggerated and inconsistent with their prior statements under oath
5. Even if Mr. McPherson erred in not providing all available information, this did not justify the defendants' characterization of his conduct as intentional deception

Mr. Bouji's Conduct After Mr. McPherson's Termination

The court accepted unchallenged evidence from Craig Keates that:

1. Mr. Bouji immediately returned to the Global premises after Mr. McPherson's termination
2. Mr. Bouji provided specific direction to sales staff
3. Mr. Brooks told Mr. Keates to spend more time with Mr. Bouji and to go to dinner with him
4. Staff were told to spend less time on compliance going forward
5. Mr. Bouji told Mr. Keates that Mr. McPherson had spent too much time on compliance and was overreacting to Commission issues

This conduct directly contradicted the defendants' testimony about their commitment to ensuring compliance with the Commission's orders restricting Mr. Bouji's involvement.

Legal Analysis

Statutory Interpretation of Section 121.5

The court conducted a comprehensive analysis of the protection from reprisal provisions in Part XXI.2 of the Ontario Securities Act, which was the first judicial interpretation of these provisions.

The Meaning of "Because"

The central interpretive question was whether "because" in s. 121.5(1) means:

1. Plaintiff's position: Any part of the employer's motivation for the reprisal was the employee's protected activity, or
2. Defendants' position: The employee's protected activity was the sole reason for the reprisal

The court adopted the plaintiff's interpretation, holding that a reprisal is unlawful if any part of the employer's motivation was the employee's protected activity.

Textual Analysis: The court noted that the legislature used different language in other parts of the Act:

• "solely because" in s. 114
• "only because" in the definition of "clearing agency"

The presumption of consistent expression suggests that if the legislature intended to require that protected activity be the sole reason, it would have used "solely because" or "only because" in s. 121.5(1).

Contextual Analysis: The court examined similar provisions in other Ontario statutes:

• Employment Standards Act, s. 74: Prohibits reprisals "because the employee" engages in protected activity
• Occupational Health and Safety Act, s. 50: Prohibits reprisals "because the worker" engages in protected activity

Ontario tribunals and courts have interpreted these provisions to mean that if an employer takes into account the employee's protected activity in any way, even as one of multiple reasons, the employer has engaged in an illegal reprisal.

In Podobnik, the Ontario Labour Relations Board held:

"Labour Boards have long recognized that despite the existence of legitimate reasons for the termination of an employee, if statutorily prohibited misconduct was taken into account at all by the employer in so doing, the termination has been tainted by improper motive, and the employee may seek relief under the governing legislation."

The Divisional Court affirmed this approach in Morin, holding:

"The Board member in the present case was well aware that an employer might have valid reasons for terminating employment, such as concerns about performance, yet still may be found to have engaged in a reprisal if part of the motivation for termination was the fact that the employee asserted statutory rights."

Purpose: The court found that the purpose of the protection from reprisal provisions is to permit employees to raise and attempt to raise concerns about potential breaches of Ontario securities law without fear of adverse impacts on their employment. This purpose would be undermined if employers could avoid liability by pointing to other legitimate reasons for termination.

Rejection of American Jurisprudence: The court rejected the defendants' reliance on U.S. jurisprudence interpreting 18 U.S.C. § 1514A, which applies a more deferential standard. The court noted:

1. The U.S. approach reflects "at-will" employment principles not applicable in Ontario
2. There is no compelling justification to import American jurisprudence into Ontario
3. Ontario's own labour law jurisprudence supports a broader interpretation

The Meaning of "Reasonably Believes"

The court adopted the test from Geil, holding that an employee must have:

1. A subjective belief that the act was contrary to Ontario securities law, and
2. That subjective belief must be objectively reasonable in light of the information available to the employee at the time

The court found Mr. McPherson's belief was both subjectively held and objectively reasonable because:

1. The Commission had previously found that Ms. Bouji failed to prevent Mr. Bouji from acting as a de facto officer
2. The Commission had refused to permit Ms. Bouji to serve as UDP
3. The CRR reports identified deficiencies in areas under Ms. Bouji's supervision
4. Ms. Bouji's conduct after the board's decision (refusing to report to Mr. McPherson, refusing to allow HR to attend meetings) confirmed Mr. McPherson's concerns
5. Mr. Bouji's immediate return to directing staff after Mr. McPherson's termination vindicated Mr. McPherson's concerns

The Reverse Onus Provision

Section 121.5(5) places the burden of proof on the employer to prove it did not commit a reprisal. The defendants argued for a two-step test with burden-shifting, similar to the American approach.

The court rejected this, holding that:

1. The text of s. 121.5(5) places the burden squarely on the employer
2. There is no basis in the text for a burden-shifting approach
3. Ontario labour law does not employ such a test
4. The reverse onus simply means that if the evidence is evenly balanced, the employer has not met its burden

The court noted it did not need to rely on the reverse onus provision because it was satisfied on a balance of probabilities that Mr. McPherson proved Global took a reprisal because of his protected activity.

Remedies

Statutory Remedy Under Section 121.5(6)

Section 121.5(6) provides that a court may order:

1. Reinstatement with the same seniority status, or
2. Payment of two times the amount of remuneration the employee would have been paid if the contravention had not occurred, with interest

Mr. McPherson did not seek reinstatement and sought the monetary remedy instead.

Calculation of Remuneration: The court included both base salary and discretionary bonus in the calculation of "remuneration" because:

1. The discretionary bonus was a significant portion of Mr. McPherson's total compensation
2. There was no evidence Mr. McPherson would not have earned the bonus absent the reprisal
3. The statute does not exclude discretionary bonuses
4. Excluding the bonus would significantly undercompensate Mr. McPherson

No Mitigation Requirement: The court found that the statute does not place any obligation on Mr. McPherson to mitigate his damages and saw no reason to deduct post-termination earnings from the statutory award.

Award: The court awarded Mr. McPherson $5,379,808.22, comprising two times:

• $95,000 (FY 2019 bonus)
• $11,890.41 (per diem share of base salary for February 28 - March 30, 2019)
• $2,583,013.70 (per diem share of base salary and bonus for April 1, 2019 - September 12, 2025)

Plus prejudgment and postjudgment interest under the Courts of Justice Act.

Wrongful Dismissal Damages

Mr. McPherson claimed an additional $267,949.23 for wrongful dismissal, arguing for a 12-month notice period despite being employed for only seven months.

The court dismissed this claim because:

1. Mr. McPherson had already received an award of two times his maximum potential compensation for a 12-month notice period
2. He had suffered no damages from the termination
3. He had "come out ahead" with the statutory award

Aggravated Damages

Mr. McPherson sought $200,000 in aggravated damages for mental distress resulting from the manner of dismissal.

The court dismissed this claim because:

1. Mr. McPherson did not prove he suffered mental distress beyond the normal disappointment arising from termination
2. There was no evidence of conduct by the employer that breached the duty of good faith and fair dealing at the time of termination in a manner causing mental distress

Punitive Damages

Mr. McPherson sought $400,000 in punitive damages.

The court dismissed this claim because:

1. The defendants' conduct did not meet the test for malicious, oppressive, or high-handed conduct
2. The statutory remedy of $5.3 million plus interest is both sufficient punishment and adequate deterrence
3. The defendants' counterclaim, while pursued in bad faith initially, does not justify punitive damages in the main action

Conclusion

The court declared that Global Growth Assets Inc., Global RESP Corporation, Ronald Brooks, Nazreen Ali, and Hanane Bouji breached s. 121.5(1) of the Ontario Securities Act by terminating Mr. McPherson's employment as a reprisal for his protected activity.

The court ordered Global Growth Assets Inc. and Global RESP Corporation, jointly and severally, to pay Mr. McPherson $5,379,808.22 plus prejudgment and postjudgment interest.

The defendants' counterclaim was dismissed.

Significance

This decision is significant for several reasons:

1. First Interpretation: It is the first judicial interpretation of the protection from reprisal provisions in Part XXI.2 of the Ontario Securities Act

2. Broad Interpretation: The court adopted a broad interpretation of "because," holding that a reprisal is unlawful if any part of the employer's motivation was the employee's protected activity

3. Alignment with Labour Law: The court aligned the interpretation with Ontario labour law jurisprudence under the Employment Standards Act and Occupational Health and Safety Act

4. UDP Obligations: The decision clarifies that an Ultimate Designated Person's statutory obligations to supervise compliance activities cannot be undermined by board decisions that remove key personnel from the UDP's oversight

5. Whistleblower Protection: The decision provides important guidance on whistleblower protections in the securities regulatory context

6. Large Award: The $5.3 million award (plus interest) demonstrates the serious consequences of violating the protection from reprisal provisions

Released: September 12, 2025