"CLASS ACTION" Scarfone Hawkins LLP

The Court Order certifying this case as a class proceeding required the defendants to send out a Court-approved notice under the Class Proceedings Act. The Banyan Tree Foundation sent-out the Court-approved notice but did so with its own letter dated May 25, 2010.

The Banyan Tree Foundation letter was NOT approved by the court and should not have been sent-out to Class Members.

The Superior Court of Justice approved a clarification notice to be sent-out to all Class Members indicating that they should not rely on the Banyan Tree Foundation letter as it is inaccurate and misleading.

Persons who opted-out of the class proceeding have an opportunity to change their mind and revoke their decision to opt-out.

If you opted-out because of the Banyan Tree Foundation letter dated May 25, 2010, you have an opportunity to change your mind and revoke your decision to opt-out by signing a revocation of opt-out form which must be completed and filed with the Opt-Out Administrator on or before October 1, 2010.

The motion of all defendants seeking leave to appeal to the Divisional Court from the Order of the Honourable Madam Justice Lax dated January 19, 2010, certifying this action as a class proceeding, was dismissed by the Honourable Mr. Justice Dambrot of the Divisional Court on April 1, 2010.

This action can now move forward as a class proceeding pursuant to the Order of the Honourable Madam Justice Lax, January 19, 2010.

Certification of Action

This action was certified as a class proceeding by the Honourable Madam Justice Lax pursuant to reasons for decision issued January 19, 2010.

Click Here to Read the Order of Madam Justice Lax

Click Here to Read Notice of Certification

Click Here to Read Opt-Out Form

Click Here to Read the Reasons for Decision of Madam Justice Lax

The plaintiffs' motion seeking certification of this action as a class proceeding was argued in Toronto June 23, 24 and 25, 2009.

At that time, the Gift Program Defendants sought an order staying the action.

Click Here to Read the Order of Justice Lax dismissing the stay motion of the Gift Program Defendants

Fraser Milner Casgrain LLP sought an order dismissing the plaintiffs' action.

Click Here to Read the Order of Justice Lax dismissing the motion of FMC

Subject to any rights of appeal, the action will now move forward as a class proceeding.

Further updates will be posted here shortly.

Overview of Claim

A Statement of Claim was issued in the Ontario Superior Court of Justice in Toronto on February 27, 2008 claiming damages for breach of contract and negligence relating to the Banyan Tree Foundation Gift Program.

The action is brought under the Class Proceedings Act, 1992 on behalf of the class of persons who participated in the Banyan Tree Gift Program for the taxation years 2003 - 2007.

The Statement of Claim, which contains allegations which have yet to be proven in Court, alleges that Promittere Capital Group Inc., Promittere Asset Management Ltd. and Banyan Tree Foundation, with the assistance of Rochester Financial Limited, developed, promoted, sold and administered a gift program under which participants borrowed money to make charitable donations in order to receive charitable donation receipts and concomitant tax credits.

Participants borrowed substantially all of the funds donated and actually paid in cash only a small portion of the total donation amounts.

Law firm Fraser Milner Casgrain LLP is also named in the lawsuit as it is alleged that it issued favourable tax opinion letters which were a necessary pre-requisite to the promotion of the gift program to participants.

We are compiling a database of individuals who participated in the Banyan Tree Foundation Gift Program for the taxation years 2003 - 2007.

If you have not already contacted us, we would appreciate hearing from you as it may assist us in pursuing this claim.