Citation: Arbour Energy Inc., Re, 2012 ABASC 131 Date: 20120330 … Decisions... · 2019. 1....

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ALBERTA SECURITIES COMMISSION

DECISION

Citation: Arbour Energy Inc., Re, 2012 ABASC 131 Date: 20120330

Arbour Energy Inc., Dennis Morice, Milowe Brost,

The Institute For Financial Learning, Group of Companies Inc.,

Merendon Mining Corporation Ltd. and Gary Sorenson

Panel: Glenda A. Campbell, QC

Neil W. Murphy

Karen A. Prentice, QC

Appearing: Don Young and Deanna

Steblyk

for Commission Staff

Chris Archer and John

James

for Dennis Morice

Glenn Solomon, QC and

Darren Reed

for Merendon Mining

Corporation Ltd.

and Gary Sorenson

Dates of Hearing: 8 and 14-15 July 2009; 18-22 and 25-29 January

2010; 1-4, 16-17 and 19 February 2010; 13-16, 19-

23 and 26-29 April 2010; 10, 12, 17-20, 25-26 and

28 May 2010; 19-22 July 2010; and 13 December

2010

Date of Decision: 30 March 2012

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I. INTRODUCTION II. HISTORY OF THIS PROCEEDING

A. Interim Orders B. Notice of Hearing

1. Amendments 2. The Allegations

C. Pre-Hearing and Hearing Applications D. The Merits Hearing

1. Adjournments 2. Receipt of Evidence and Submissions in the Merits Hearing

(a) Overview (b) Staff's Case

(c) The Respondents' Cases (i) Arbour and Morice (ii) Brost and IFFL (iii) Merendon and Sorenson (iv) Conclusions

3. Evidentiary Matters (a) General Approach (b) Evidentiary Standard (c) Audio Recordings of Conversations (d) Video Recordings (e) Hearsay Evidence (f) Conflicting Evidence and Credibility

(g) Adverse Inference (h) Fairness of the Proceedings

III. FACTUAL BACKGROUND A. The Respondents and Other Parties

1. The Respondents (a) Arbour (b) Morice (c) Brost (d) IFFL (e) Sorenson

(f) Merendon 2. Other Parties

(a) 385765 Alberta Ltd. ("385765") (b) 1061463 Alberta Ltd. ("1061463") (c) Adair

(d) Arbour Energy Caribbean Ltd. ("Arbour Caribbean") (e) Arbour Energy US, Inc. ("Arbour US") (f) Bierwirth

(g) Casey Brost (h) Elizabeth Brost (i) Charles D. Burgess ("Burgess")

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(j) COREL

(k) Capital Alternatives (l) Ward Capstick ("Capstick") (m) Eiger (n) Expedia (o) Forrest (p) Fortris (q) Grovenor Trust ("Grovenor") (r) Hobbs (s) Houston (t) Kendall (u) La Conxion (v) Magna North

(w) Merendon Investment Group LLC ("Merendon Investment Group") (x) Merendon Colorado (y) Merendon Nevada (z) Monkman (aa) Monkman Consultants (bb) Parklane International Corporation ("Parklane") (cc) SGD (dd) Thelma Duron/Thelma Sorenson (ee) Steller (ff) Strashok (gg) Stone Mountain (hh) Strategic

(ii) TRL (jj) True North (kk) Verbeem (ll) Weeks (mm) Werner (nn) Jack Wolfe (oo) Jared Wolfe

3. Miscellaneous Entities

B. Summary of Arbour's Activities 1. Context 2. Fundraising 3. Loans to Merendon

4. Purchases of COREL and TRL C. The Brost-Sorenson Alliance

1. Brost's and Sorenson's Initial Contact

2. SGD (a) Formation (b) SGD/Merendon Relationship (c) Hoffman as SGD's President (d) Adair as SGD's President (e) Blaikie as SGD's President

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(i) Blaikie's Role

(ii) SGD/Merendon Interaction (iii) Due Diligence Reports

(f) Werner as SGD's President (g) Conclusions on SGD

3. Stone Mountain 4. Magna North 5. International Business Group ("IBG")

(a) General (b) February IBG Meeting (c) March IBG Meeting

6. Descriptions of the Brost and Sorenson Relationship 7. Conclusions on the Brost-Sorenson Alliance

D. Merendon 1. Operations 2. Financial

E. IFFL Facts 1. General 2. IFFL Structurists 3. IFFL's Interactions with Investors and Prospective Investors 4. The "International Side" and "Managed Accounts" 5. Brost and IFFL Promote Arbour

F. Arbour 1. The Resurrection of Arbour – from Bankrupt Shell to Going Concern 2. Arbour Post-Resurrection Transactions

(a) Existing Board of Directors (b) 2004 Common Share Sales (c) Crazy Hill Purchase and Sale (d) Negotiation of $10 Million Loan to Merendon (e) Arbour's New Board of Directors Appointed (f) The Roles of Brost and Sorenson

3. Arbour's Operations and Activities (a) Arbour's Operations and Expedia

(b) De-listing Arbour Common Shares (c) COREL and TRL (d) $10 Million Loan to Merendon Finalized

(e) $45 Million Loan to Merendon

(f) Purchase of COREL

(g) Purchase of TRL (h) Arbour Caribbean (i) Sedalia Transaction (j) Arbour US (k) Myanmar Transaction

4. Arbour Preferred Shares Sold (a) Offerings (b) Offering Memorandum Exemption Relied Upon

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(c) Marketing Activities

(d) The Arbour Offering Memoranda (i) General (ii) OM 1 (14 July 2004) (iii) OM 2 (19 January 2005) (iv) OM 3 (26 September 2005)] (v) Distributions Reported

5. Arbour's Use of Proceeds (a) Merendon (b) Other Uses of Proceeds

6. Disbursement of Money to Merendon and Beyond 7. Conclusions Regarding Arbour

G. Investor Testimony

1. General 2. Investor Witness LB 3. Investor Witness KA 4. Investor Witness DR 5. Investor Witness ST 6. Investor Witness DRA 7. Investor Witness SC

IV. ISSUES FOR DETERMINATION V. ANALYSIS AND FINDINGS

A. Knowledge B. The Arbour OMs

1. Trades and Distributions of the Arbour Preferred Shares

2. Availability of the OM Exemption (a) Registration and Prospectus Exemptions (b) The Law

(i) The OM Exemption Requirements (ii) Untrue and Misleading Statements Prohibited

3. Parties' Positions (a) Staff (b) Morice (c) Arbour, Brost and IFFL

4. Review of the Arbour OMs (a) Investor and Expert Evidence Not Necessary

(b) OM 1 (14 July 2004)

(i) Disclosure (ii) Other Deficiencies (iii) Conclusions on OM 1

(c) OM 2 (19 January 2005) (i) Disclosure (ii) Other Deficiencies (iii) Conclusions on OM 2

(d) OM 3 (26 September 2005) (i) Disclosure

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(ii) Other Deficiencies

(iii) Conclusions on OM 3 5. OM Exemption Not Available 6. Sections 92(3)(c) and 92(4.1) of the Act Contravened?

(a) Statements of Arbour and Morice (b) Intention to Effect Trades in Securities (c) Knowledge Concerning the Misstatements Found (d) Business Judgment Rule (e) Reliance on Legal Advice Does Not Diminish Responsibility

C. Unregistered Advising 1. The Allegation 2. The Law 3. Parties' Positions

(a) Staff (b) Brost and IFFL

4. Analysis (a) Opinions or Recommendations (b) Business Purpose (c) Conclusion on Advising (d) Exemptions (e) Conclusion on Unregistered Advising Allegation

D. Breach of Undertakings and Order 1. The Law 2. The Undertakings and Order 3. Analysis and Finding

E. Fraud 1. The Allegation 2. Parties' Positions

(a) Staff (b) Arbour, Brost and IFFL (c) Morice (d) Merendon and Sorenson

3. The Law

(a) Statutory Regime (b) The Elements

(i) The Actus Reus

(ii) The Mens Rea

4. Analysis (a) Prohibited Acts (b) Deprivation

(c) Knowledge (d) Conclusions on Fraud

F. Conduct Contrary to the Public Interest

1. General 2. Illegal Trades and Distributions 3. Misrepresentations in Offering Memoranda

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4. Unregistered Advising

5. Breaching an Undertaking or Commission Order (or Both) 6. Fraud

VI. CONCLUSION AND NEXT STEPS

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[1] This is a proceeding before the Alberta Securities Commission (the "Commission")

initiated by Commission staff ("Staff") against six respondents (the "Respondents") – Arbour

Energy Inc. ("Arbour"), Dennis Morice ("Morice"), Milowe Brost ("Brost"), The Institute For

Financial Learning, Group of Companies Inc. ("IFFL"), Merendon Mining Corporation Ltd.

("Merendon") and Gary Sorenson ("Sorenson") – to consider whether they contravened Alberta

securities laws and engaged in conduct contrary to the public interest and, if so, whether it is in

the public interest or appropriate to make orders for sanctions and costs against them pursuant to

sections 198, 199 and 202 of the Securities Act, R.S.A. 2000, c. S-4 (the "Act").

[2] Notwithstanding suggestions to the contrary, this proceeding is not about any

participation of, or conduct by, the Respondents in an alleged overarching fraudulent Ponzi

scheme involving sales of securities by Syndicated Gold Depository S.A. ("SGD"), extending to

sales of securities of various other entities, including Arbour. Rather, this proceeding, as

circumscribed by the allegations made by Staff in a thrice-amended notice of hearing dated

27 May 2009 (the "Notice of Hearing"), is about the alleged involvement of, and conduct by, the

Respondents in matters focused on distributions of securities of Arbour, a public company, with

it allegedly used by Brost and Sorenson as a vehicle to divert investor money to entities owned

or controlled by, or associated with, Brost, Sorenson or both (the "Brost/Sorenson Entities")

while at the same time avoiding proper public disclosure. Staff's allegations (two against all of

the Respondents, the others against certain of them), as set out in the Notice of Hearing, concern:

illegal trading in, distributing of and advising in securities; untrue or misleading statements in

offering memoranda; breaches of undertakings and a Commission order; fraud; and conduct

contrary to the public interest.

[3] The hearing of this proceeding is bifurcated: first, a hearing on the merits of the

allegations made by Staff in the Notice of Hearing (the "Merits Hearing"); and, second, if

required, a hearing to address what, if any, orders for sanctions and costs ought to be made (the

"Sanction Hearing").

[4] This decision and our reasons for it conclude the Merits Hearing. In sum, we find (as

discussed below) that all of the extant allegations set out in the Notice of Hearing have been

proved to the requisite evidentiary standard, namely that:

Arbour, Morice, Brost and IFFL breached section 75(1)(a) of the Act by trading

in Arbour securities without registration or exemptions;

Arbour, Morice, Brost and IFFL breached section 110(1) by distributing Arbour

securities without a prospectus or exemptions;

Brost and IFFL breached section 75(1)(b)(i) by acting as advisors without

registration or exemptions;

I. INTRODUCTION

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Arbour and Morice breached section 92(4.1) (and its predecessor) by making

statements in three Arbour offering memoranda that they knew or reasonably

ought to have known were untrue or misleading;

Brost and IFFL breached sections 93.2 and 93.1 by failing to comply with their

written undertakings to the Commission and a Commission order accepting their

undertakings, respectively;

the Respondents breached section 93(b) (and its predecessor) by perpetrating a

fraud on Alberta investors; and

in so doing, the Respondents engaged in conduct contrary to the public interest.

[5] Accordingly, this proceeding will now move into the Sanction Hearing phase.

A. Interim Orders

[6] This proceeding was initiated when Staff issued a notice of hearing on 18 November

2005, subsequently amended on 1 December 2005 (the "Initiating Notice of Hearing"), against

Arbour, Morice, Heinz Weis ("Weis") and Arthur Wigmore ("Wigmore") in connection with an

application by Staff to extend an interim order that had been issued by a Commission panel on

16 November 2005 (the "Interim Order", cited as Re Arbour Energy Inc., 2005 ABASC 911).

The Interim Order prohibited Arbour, Morice, Weis and Wigmore from using all exemptions

contained in Alberta securities laws for 15 days.

[7] On 1 December 2005 a Commission panel extended the Interim Order "until the hearing

in this matter is concluded and a decision is rendered, or until otherwise ordered" (the "Extension

Order", cited as Re Arbour Energy Inc., 2005 ABASC 952). The Extension Order remains in

effect.

[8] On 9 May 2005 the Commission's Deputy Director of Capital Markets issued an order

barring trading in Arbour securities for 15 days based on Arbour's failure to file with the

Commission its annual audited financial statements for the year ended 31 December 2004 (the

"2004 Arbour Annual Audited Financial Statements"). According to Staff investigative

accountant Nicole Chute ("Chute"), the 2004 Arbour Annual Audited Financial Statements were

filed on 18 May 2005 with the Commission and on the System for Electronic Data Analysis and

Retrieval ("SEDAR"; SEDAR is the system for the transmission, receipt, acceptance, review and

dissemination of documents filed in electronic format with Canadian securities regulatory

authorities, including the Commission). On 5 December 2005 the Commission's Associate

Director of Corporate Finance issued another order barring trading in Arbour securities for 15

days, this time based on Arbour's failure to file with the Commission its interim unaudited

financial statements for the period ended 30 September 2005. On 5 May 2006 the Commission's

Associate Director of Corporate Finance again issued an order barring trading in Arbour

securities for 15 days, this because Arbour had failed to file with the Commission its annual

audited financial statements for the year ended 31 December 2005 (the "2006 Arbour Cease

Trade Order"). On 19 May 2006 a Commission panel extended the 2006 Arbour Cease Trade

II. HISTORY OF THIS PROCEEDING

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Order "until further order of the Commission". The 2006 Arbour Cease Trade Order remains in

effect and, in the result, Arbour securities have been cease-traded since 5 May 2006.

B. Notice of Hearing

1. Amendments

[9] On 10 September 2007 Staff issued a twice-amended notice of hearing, which named

four respondents not named in the Initiating Notice of Hearing and the Interim Order – namely

Brost, IFFL, Merendon and Sorenson – and added other allegations and particulars. The thrice-

amended Notice of Hearing, issued by Staff on 27 May 2009, provided further particulars of

Staff's allegations against the then-named respondents.

[10] On 9 December 2009 Staff withdrew the allegations in the Notice of Hearing against

Weis, who had been diagnosed with a terminal illness. On 31 December 2009 Staff entered into

a Settlement Agreement and Undertaking with Wigmore concerning the allegations in the Notice

of Hearing against him. Accordingly, the Merits Hearing relates only to Staff's allegations in the

Notice of Hearing against the Respondents – namely Arbour, Morice, Brost, IFFL, Merendon

and Sorenson.

2. The Allegations

[11] In their written and oral submissions, Staff withdrew their allegations that Sorenson had

contravened sections 75(1)(a) and 110(1) of the Act and that Arbour and Morice had failed to file

or provide certain continuous disclosure required to be filed or provided under Alberta securities

laws. The remaining allegations against the Respondents, to which the Merits Hearing relates,

are:


in Arbour securities without registration or exemptions;


securities without a prospectus or exemptions;

Brost and IFFL breached section 75(1)(b) by acting as advisors without



statements in three Arbour offering memoranda that they knew or reasonably

ought to have known were untrue or misleading;

Brost and IFFL breached section 93.2 or 93.1 (or both) by failing to comply with

their written undertakings to the Commission and a Commission order accepting

their undertakings;




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[12] Our tasks are to determine whether Staff have proved these allegations and, if so, to

determine what, if any, orders ought to be made in consequence. Our findings are thus limited in

scope – to the facts and issues relevant to the extant allegations set out in the Notice of Hearing.

C. Pre-Hearing and Hearing Applications

[13] Prior to 8 July 2009, when the Merits Hearing commenced, we and other Commission

panels addressed several preliminary pre-hearing matters, issuing several interlocutory orders

and rulings in response to applications. During the Merits Hearing, we also issued several

rulings on applications. We discuss some of these orders and rulings in this decision.

D. The Merits Hearing

1. Adjournments

[14] The Merits Hearing was originally set to commence on 12 May 2008. On 1 May 2008

Arbour and Morice applied for an adjournment of the Merits Hearing on the ground that they

intended to challenge the constitutional validity of certain sections of the Act. Arbour and

Morice also requested that a Commission panel refer the constitutional questions to the Court of

Queen's Bench of Alberta (the "QB Court"), similar constitutional questions having already been

directed to the QB Court by a Commission panel in a different proceeding. Staff, Weis,

Wigmore, Brost and IFFL did not oppose this application. Over the objection of Merendon and

Sorenson, a Commission panel directed, in Re Arbour Energy Inc., 2008 ABASC 399, that the

constitutional questions raised by Arbour and Morice be referred to the QB Court for

determination by that court. In the result, this proceeding was suspended by operation of section

13(3) of the Administrative Procedures and Jurisdiction Act (Alberta) until the QB Court had

given its decision. The panel, with the agreement of the parties, adjourned the Merits Hearing to

1 December 2008 (a tentative date), pending receipt of the QB Court decision.

[15] The QB Court heard argument on the constitutional questions in September 2008. By the

end of October 2008, when the QB Court had not yet given its decision, a hearing management

meeting was scheduled for 12 November 2008 to discuss rescheduling the start of the Merits

Hearing. At that meeting a Commission panel adjourned the Merits Hearing and set a series of

tentative hearing and "cut-off" dates, with a view to commencing the Merits Hearing as soon as

practicable after issuance of the QB Court decision while still providing the parties with

sufficient time to prepare for the Merits Hearing and to consider other steps they might wish to

pursue.

[16] On 9 January 2009 the QB Court issued its decision and reasons (the "QB Decision",

cited as Lavallee v. Alberta (Securities Commission), 2009 ABQB 17). In accordance with the

previously scheduled hearing and cut-off dates, the Merits Hearing was to start on 16 March

2009 (the cut-off date for such commencement was 13 February 2009). On 6 February 2009

Arbour and Morice applied for an adjournment of the Merits Hearing to September 2009, which

application was opposed by Staff and by Merendon and Sorenson. Arbour and Morice argued

that, as the judgment roll associated with the QB Decision had yet to be finalized, there was no

decision with the result that the 16 March 2009 commencement date might yet fall away and, in

any event, they needed time to deal with any appeal and stay of proceeding application. On

6 February 2009 we denied the adjournment request and provided oral reasons for our ruling.

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[17] On 24 February 2009 Arbour and Morice brought another application to adjourn the

Merits Hearing, still set to begin 16 March 2009, on the grounds that certain disclosure had not

been provided to them by Staff and that Arbour and Morice needed time to obtain "commission

evidence" from Sorenson (then residing in Honduras). Weis and apparently Wigmore supported

this application; Brost and IFFL took no position; and Staff and Merendon and Sorenson

opposed this application. A Commission panel denied the adjournment request for reasons

delivered orally on 24 February 2009 (Re Arbour Energy Inc., 2009 ABASC 89).

[18] On 5 March 2009 Arbour and Morice again applied for an adjournment of the Merits

Hearing, this time on the ground that new, potentially relevant material had recently come to the

attention of Staff that would not be disclosed in sufficient time to allow all parties to prepare for

the Merits Hearing still set to begin 16 March 2009. Staff acknowledged same, and Weis and

Wigmore supported this application. Brost and IFFL took no position. Merendon and Sorenson

opposed this application and requested that, if the adjournment were granted, they be severed

from this proceeding such that the hearing of the allegations against them could begin on

16 March 2009. For reasons delivered orally on 5 March 2009 (Re Arbour Energy Inc., 2009

ABASC 116), we adjourned the Merits Hearing to 1 September 2009 and denied the severance

request.

[19] The Merits Hearing commenced on 8 July 2009 and proceeded on 14 and 15 July 2009 in

order to deal with a discrete issue regarding a Notice to Attend served by Arbour and Morice on

a sergeant of the Integrated Market Enforcement Team of the Royal Canadian Mounted Police

(the "RCMP"). The Merits Hearing was then to recommence on 1 September 2009, with Staff

being the first party to present evidence.

[20] On 26 August 2009 Weis applied for an adjournment of the recommencing Merits

Hearing on the ground that he was unable to attend for medical reasons. Staff, while sympathetic

to Weis's situation, suggested alternatives to an adjournment. Arbour, Morice, Wigmore,

Merendon and Sorenson did not object to the adjournment; Brost and IFFL were not in

attendance or represented. We granted Weis's application on 27 August 2009 and adjourned the

recommencing Merits Hearing to 18 January 2010.

2. Receipt of Evidence and Submissions in the Merits Hearing

(a) Overview

[21] The hearing and receipt of evidence in the Merits Hearing took place over 43 days from

January through July 2010. The testimony and exhibits were extensive – 19 witnesses testified

and 292 exhibits were entered in evidence. We received written submissions from Staff, Morice

and Merendon and Sorenson in September and November 2010 and on 13 December 2010 heard

oral submissions from Staff, Morice and Merendon and Sorenson.

(b) Staff's Case

[22] During the Merits Hearing, we heard testimony from the following witnesses called by

Staff:

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Chute – She is a Staff investigative accountant who participated in Staff's

investigation of this matter.

Bradley Dean Regier ("Regier") – He was hired by Brost, a long-time

acquaintance, in 1999 to provide part-time bookkeeping for Capital Alternatives

Inc. ("Capital Alternatives"). This evolved in mid-2003 into Regier working full-

time for Brost at IFFL, where Regier provided office management and accounting

services. In early 2004 Regier became the office manager at Expedia Logistics

Inc. ("Expedia"), which involved his provision of accounting services for several

companies, including Strategic Metals Corp. ("Strategic"). Regier was also a

member of the advisory committee (the "IBG Advisory Committee") of the

International Business Group ("IBG"), and an officer of Merendon Mining

(Nevada), Inc. ("Merendon Nevada"), Merendon Mining (Arizona) Inc.,

Merendon Mining (California) Inc., Strategic and True North Productions LLC

("True North").

Five IFFL members and the son of two others (to protect their privacy, we refer to

these witnesses by their initials in this decision) – Five of these seven IFFL

members purchased preferred shares of Arbour.

Owen David Hoffman ("Hoffman") – He was SGD's president from 2000 (or

from "its actual inception" in late 1999) until 31 December 2001, and while such

also a Merendon director. After Hoffman left Honduras in March or April 2002,

he did "some work for Merendon" in Canada, until approximately mid-2003.

[23] Staff also relied on excerpts from transcripts of investigative interviews of individuals,

including some of the Respondents, as well as other documentary evidence, audio recordings of

conversations and video recordings.

(c) The Respondents' Cases

(i) Arbour and Morice

[24] Arbour and Morice, an Arbour principal, were jointly represented by counsel at the first

three days of the Merits Hearing. However, immediately prior to the start of Staff's case, we

were informed that Arbour was no longer able to retain their counsel. Thereafter, Morice was

represented by counsel at the Merits Hearing and Arbour did not participate in the Merits

Hearing.

[25] Morice did not testify at the Merits Hearing, nor did any other Arbour director or officer,

or any Arbour employee. Morice called two witnesses to testify on his behalf (we do not include

the above-mentioned RCMP sergeant in this enumeration):

Ross Sam Chow ("Chow") – He was the manager of the Mineable Oil Sands

business unit of the Alberta Research Council ("ARC") when he was hired in

2003 by Tarsands Recovery Limited ("TRL") to evaluate its oil sands technology.

He and other ARC personnel prepared an evaluation report dated November 2005

(the "November 2005 ARC Report"). Chow was qualified as an expert, and thus

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to give opinion evidence, "in the area of laboratory-based recovery testing and as

an evaluator of the technology for the recovery of bitumen from the Athabasca

Oilsands from a scientific perspective".

Donald Richard Skeith ("Skeith") – He is an experienced Calgary securities

lawyer. Skeith first met Brost in the early 1990s when Skeith was providing legal

services to Bellringer Resources Ltd. ("Bellringer"). Skeith or his firm has

provided legal services to Capital Alternatives, Strategic and Merendon, and

Skeith provided legal services to Arbour before and during the period relevant to

the allegations.

[26] Morice also relied on transcripts, in whole or in part, of investigative interviews of

individuals, including some of the Respondents, as well as other documentary evidence and

video recordings.

(ii) Brost and IFFL

[27] Brost, an IFFL principal, and IFFL were jointly represented by counsel at some of the

pre-hearing applications and management meetings. Despite having been given notice of the

Merits Hearing and the allegations against them and having participated in some of the pre-

hearing applications and management meetings, neither Brost nor IFFL participated in the Merits

Hearing. Brost did not testify at the Merits Hearing, nor did any other IFFL director or officer.

(iii) Merendon and Sorenson

[28] Merendon and Sorenson, a Merendon principal, were jointly represented by counsel at

the Merits Hearing. Sorenson testified, on his and Merendon's behalf, at the Merits Hearing.

Merendon and Sorenson also called the following witnesses to testify on their behalf:

Harry Charles Blakey ("Blakey") – He is a former RCMP officer and lawyer and

was employed by the Commission as its Director of Market Standards until

September 2000. Blakey was retained by Brost in 2004 to provide legal services

to IFFL. In March 2005 Brost hired Blakey to complete a due diligence report on

Merendon and its subsidiaries for SGD. In September 2005 Sorenson retained

Blakey to provide legal services to Merendon. This evolved into a general

counsel position with Merendon, a position Blakey held until December 2007,

after which he continued to provide legal services to Merendon until April 2008.

Graham Ronald Blaikie ("Blaikie") – In October or November 2002 Sorenson

hired Blaikie as the general manager of Merendon Hospitality Group de

Venezuela C.A. ("Merendon Hospitality Venezuela"). Blaikie held this position

until October 2004, when Sorenson hired him as Merendon's budget director, a

position he held at the time of the Merits Hearing. Blaikie was also a Merendon

director from sometime in 2004 until sometime in 2007. He was SGD's president

from 1 January 2004 until 31 March 2007, and a member of the IBG Advisory

Committee.

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Donald John Gleason ("Gleason") – He is a certified general accountant and was

Merendon's chief financial officer ("CFO") from June or July 2006 until

November 2007.

Kenneth Leroy Sorensen ("Ken Sorensen") – He is Sorenson's brother (despite

their differently spelled surnames) and was Merendon's president and chief

administrative officer and a Merendon director from approximately April 2005

until November 2007.

Vinicio Pazmay Ruiz – He is a geologist who was employed by Merendon de

Ecuador S.A. ("Merendon Ecuador") from 2008 to 2009, working in the Tena

concessions in Ecuador.

Shad Prashad – He worked at Merendon de Honduras S.A. ("Merendon

Honduras") from October 2002 until January 2004, when he was asked by

Sorenson to help manage operations at Merendon de Peru S.A. ("Merendon

Peru"). In or about June 2005 Prashad became Merendon Peru's general manager,

a position he held at the time of the Merits Hearing.

Catalina Feijoo Marin ("Feijoo") – She was hired by Sorenson in 2005 as

Merendon Ecuador's general manager, a position she held at the time of the

Merits Hearing.

[29] Merendon and Sorenson also relied on excerpts from transcripts of investigative

interviews of individuals, including some of the Respondents, as well as other documentary

evidence, tape recordings of conversations and video recordings.

(iv) Conclusions

[30] While a respondent is not required to participate in an enforcement proceeding

commenced under Alberta securities laws, we will not consider allegations against a non-

participating respondent unless we are satisfied that Staff provided adequate notice to the

respondent of the hearing and the allegations Staff are making against the respondent. Here, we

are satisfied that Arbour, Brost and IFFL received adequate notice of the Merits Hearing and

Staff's allegations against them. We therefore consider it appropriate to consider the allegations

against Arbour, Brost and IFFL despite their apparent choice not to participate, or participate

fully, in the Merits Hearing.

3. Evidentiary Matters

(a) General Approach

[31] We make some general comments on this proceeding and our approach.

[32] There were, in the evidence before us, minor variations – of no substantive effect – in the

names of certain entities. When referring to any such entity in this decision, we have done so

using one variation of its name.

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[33] The facts of this case are complex, involving a tangled web of corporate and personal

relationships and a complicated flow of investor and corporate money. Indeed, we are of the

view that some of this complexity was aimed at obscuring or concealing certain conduct by the

Respondents.

[34] Although this decision and our reasons for it do not address each and every argument

made by the parties, we have fully considered all arguments presented to us.

[35] We have carefully reviewed the evidence introduced to find the facts relevant to the

issues to be decided by us. During the Merits Hearing, we permitted the introduction of evidence

in some areas (allowing direct and cross-examination on such evidence) on the basis that it

would be helpful to our understanding of the misconduct alleged in the Notice of Hearing and

thus was relevant, or that its relevance was initially unclear. Indeed, evidence of facts and

conduct prior to the period relevant to the allegations has assisted us to understand and reach

conclusions about the relationships among the Respondents and among the Respondents and

various other parties during the period relevant to the allegations. Similarly, evidence of conduct

by the Respondents prior to the period relevant to the allegations has assisted us by providing

context for certain of their conduct during the period relevant to the allegations. Apart from

these caveats, however, we have largely ignored as irrelevant (and thus of no assistance to us in

our determination of the allegations in the Notice of Hearing) evidence and submissions relating

to purported fraudulent activity involving other issuers and other parties, or relating to any other

purportedly improper conduct by some of the Respondents that was not alleged in the Notice of

Hearing.

(b) Evidentiary Standard

[36] As noted, our task in the Merits Hearing is to determine whether Staff have proved, to the

requisite evidentiary standard, the allegations in the Notice of Hearing. The evidentiary standard

applied in Commission enforcement hearings is the balance of probabilities civil standard (Re

Kustom Design Financial Services Inc., 2010 ABASC 179 at para. 5).

[37] The civil standard of proof was discussed by the Supreme Court of Canada in F.H. v.

McDougall, 2008 SCC 53, in which the court confirmed (at para. 49) that the balance of

probabilities requires that the trier of fact must decide "whether it is more likely than not that an

alleged event occurred". The court also stated (at paras. 40, 45-46):

. . . I think it is time to say, once and for all in Canada, that there is only one civil standard of proof

at common law and that is proof on a balance of probabilities. Of course, context is all important

and a judge should not be unmindful, where appropriate, of inherent probabilities or

improbabilities or the seriousness of the allegations or consequences. . . .

. . .

To suggest that depending upon the seriousness, the evidence in the civil case must be scrutinized

with greater care implies that in less serious cases the evidence need not be scrutinized with such

care. I think it is inappropriate to say that there are legally recognized different levels of scrutiny

of the evidence depending upon the seriousness of the case. There is only one legal rule and that

is that in all cases, evidence must be scrutinized with care by the trial judge.

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. . . evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of

probabilities test. . . .

[38] Thus, we decide this case on the balance of probabilities. In doing so, we must be

satisfied that there is sufficiently clear, convincing and cogent evidence that the existence or

occurrence of any alleged fact required to be proved is more likely than its non-existence or non-

occurrence.

[39] We are also entitled to draw inferences from the evidence as a whole, and have done so in

reaching some of our conclusions, an approach consistent with that recently enunciated by the

Ontario Securities Commission (the "OSC") in Re Biovail Corporation (2010), 33 OSCB 8914 at

para. 85: a panel is "entitled to make reasonable inferences from the evidence and to reach

conclusions based on the balance of probabilities".

[40] Accordingly, in finding that all of the extant allegations set out in the Notice of Hearing

have been proved, we have found that the evidence before us is sufficiently clear, convincing and

cogent to prove the allegations on the balance of probabilities.

(c) Audio Recordings of Conversations

[41] Hoffman made audio recordings (the "Hoffman Tapes") of conversations he had –

typically with one or more of Brost, Sorenson, Steve Kendall ("Kendall") and Christopher

Houston ("Houston") – certain of which (in whole or in part) Staff and Merendon and Sorenson

entered in evidence through Hoffman. Hoffman said that he made the Hoffman Tapes because

he had concerns about what was being done and as a means of having a record of events.

Hoffman used a micro-recorder and did not disclose to Brost, Sorenson or apparently any other

party to conversations that he was recording the conversations. Hoffman explained that he began

recording conversations from about February 2000 to the end of 2008, and he attempted to

record as many conversations as he could with each of Brost and Sorenson. However, Hoffman

testified that all of the audio recordings made prior to the time he left Honduras (in March or

April 2002) were destroyed when the tapes – about 40 of them – were inadvertently laundered;

Hoffman said that he kept the tapes hidden in his closet, so "[i]t was quite a mystery" to him how

the tapes ended up in the washer and destroyed.

[42] Merendon and Sorenson contended that the Hoffman Tapes entered in evidence should be

given limited weight, claiming that they "lack[ed] the entirety of their context" due to the

destruction of the earlier audio recordings and that they often dealt with issues of doubtful

relevance. Merendon and Sorenson also questioned Hoffman's credibility and motives in making

the Hoffman Tapes, suggesting he did so because he wanted money from Sorenson, Brost, SGD

or all of them. Nevertheless, the Hoffman Tapes in evidence were entered, in part, by Merendon

and Sorenson, and they conceded the relevance of certain of the conversations (in whole or part)

recorded on the Hoffman Tapes in evidence (for example, those indicating that Sorenson was not

aware of all of Brost's activities).

[43] In determining the weight to attach to the Hoffman Tapes in evidence, we accept them as

authentic – there was no dispute as to the identity of the speakers recorded (Sorenson admitted

that the voice identified as his was his), and there was no suggestion or evidence that the

recordings were anything other than genuine. The Hoffman Tapes in evidence are thus evidence

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that conversations took place and of the words used, although not necessarily of the truth of the

statements made. While certain of the conversations recorded on the Hoffman Tapes in evidence

are irrelevant to the issues before us and thus deserving of no weight, many of the recorded

conversations are relevant to the issues we must decide. In giving weight to the relevant

conversations recorded on the Hoffman Tapes in evidence, we have considered them in the

context of the totality of the evidence, mindful of any shortcomings in the quality of the

recordings and that the destroyed recordings of earlier conversations may have assisted in our

understanding or, as Merendon and Sorenson put it, "provided much more context".

(d) Video Recordings

[44] Video recordings were entered in evidence by Staff, Morice and Merendon and Sorenson.

In determining the weight to attach to the video recordings in evidence, we accept them as

authentic – there was no suggestion or evidence that the recordings were anything other than

genuine. The video recordings in evidence are thus evidence that events occurred and statements

were made, although not necessarily of the truth of any statements made. While certain of the

content of the video recordings in evidence is irrelevant to the issues before us and thus

deserving of no weight, other of the content is relevant to the issues we must decide. In giving

weight to the relevant content of the video recordings, we have considered it in the context of the

totality of the evidence, cognizant of any shortcomings in the quality of the recordings.

(e) Hearsay Evidence

[45] It is not unusual for hearsay evidence to be adduced, whether by Staff or respondents, in

Commission enforcement hearings. Section 29(f) of the Act provides that "the laws of evidence

applicable to judicial proceedings do not apply" in Commission enforcement hearings. A

Commission panel's primary consideration in determining the admissibility of evidence is its

relevance – under section 29(e) a panel is to "receive that evidence that is relevant to the matter

being heard". Therefore, a panel is legally entitled to admit relevant hearsay evidence, provided

the rules of natural justice and procedural fairness are observed. In The Law of Evidence in

Canada, 3rd ed. (Markham, Ont.: LexisNexis Canada, 2009), Alan W. Bryant, Sidney N.

Lederman and Michelle K. Fuerst commented (at para. 6.483):

In proceedings before most administrative tribunals and labour arbitration boards, hearsay

evidence is freely admissible and its weight is a matter for the tribunal or board to decide, unless

its receipt would amount to a clear denial of natural justice. So long as such hearsay evidence is

relevant, and can be fairly regarded as reliable, it can serve as the basis for the decision, whether

or not it is supported by other evidence which would be admissible in a court of law. [Footnotes

omitted.]

[46] Thus, a Commission panel is mindful of the frailties of hearsay evidence when deciding

whether to admit it in a Commission enforcement hearing and, if admitted, what weight (if any)

to accord to it. For example, a panel would not make a factual finding based solely on

uncorroborated hearsay evidence with insufficient indicators of reliability. As this Commission

noted in Re Ironside, 2006 ABASC 1930 (at paras. 97-98):

Corroboration is another important factor used to assess the weight to be given to hearsay

evidence. While the circumstances surrounding hearsay evidence may provide some comfort as to

the reliability of the hearsay evidence, we gave greater weight when the hearsay evidence was

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corroborated by or consistent with other evidence. As stated in Re E.A. Manning Limited (1995),

18 O.S.C.B. 5317 at 5322:

. . . However, when such [hearsay] evidence was the only evidence on a

particular issue, we have given it very little weight. To the extent that the

evidence was corroborative of other evidence, on the other hand, we were

prepared to give it greater weight.

In Starson v. Swayze, [2003] 1 S.C.R. 722 at para. 115, the majority of the court commented that it

is generally within a tribunal's discretion to determine the weight to be given to hearsay evidence.

However, the court cautioned that the tribunal "must be careful to avoid placing undue emphasis

on uncorroborated evidence that lacks sufficient indicia of reliability".

[47] During the Merits Hearing, Staff, Morice and Merendon and Sorenson adduced various

forms of hearsay evidence, including:

transcripts of a compelled investigative interview of Morice conducted by Staff

on 11 December 2006 and 25 April and 17 October 2007 (the "Morice

Interview"), during which Morice was under oath and, except for 17 October

2007, represented by counsel;

excerpts from transcripts of a compelled investigative interview of Brost

conducted by Staff on 4 and 9 April 2008 (the "Brost Interview"), during which

Brost was under oath and represented by counsel;

excerpts from a transcript of an investigative interview of Brost conducted by the

Department of Financial Institutions, Securities Division in Washington state on

16 August 2004 (the "Brost US Interview"), during which Brost was under oath

and represented by counsel;

excerpts from a transcript of a compelled investigative interview of Weis

conducted by Staff on 8 January 2007 (the "Weis Interview"), during which Weis

was under oath and represented by counsel;

excerpts from a transcript of an investigative interview of Wigmore conducted by

staff of the British Columbia Securities Commission (the "BCSC") in Vancouver,

British Columbia on 15 April 2005 and from a transcript of a compelled

investigative interview of Wigmore conducted by Staff and BCSC staff in

Vancouver on 5 April 2007 (together, the "Wigmore Interview"), during which

Wigmore was under oath and represented by counsel;

transcripts, in whole or in part, of investigative interviews of Regier conducted by

Staff on 12 September and 4 October 2005 and 12 March 2009 and of an

interview conducted by the RCMP on 15 January 2009 (together, the "Regier

Interview"), during which Regier was under oath and at times represented by

counsel;

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excerpts from a transcript of an investigative interview of Hoffman conducted by

Staff on 2 October 2008, during which Hoffman was under oath but not

represented by counsel;

excerpts from a transcript of a compelled investigative interview of Ken Sorensen

conducted by Staff on 8 March 2007, during which Ken Sorensen was under oath

and represented by counsel;

excerpts from a transcript of a compelled investigative interview of Justin

Christopher Bierwirth ("Bierwirth") conducted by Staff on 1 October 2009,

during which Bierwirth was under oath but not represented by counsel;

excerpts from a transcript of a compelled investigative interview of Carol Rose

Sieberer Hobbs ("Hobbs") conducted by Staff on 19 December 2006 (the "Hobbs

Interview"), during which Hobbs was under oath and represented by counsel;

excerpts from a transcript of a compelled investigative interview of Philip Dean

Strashok ("Strashok") conducted by Staff on 19 September 2007 (the "Strashok

Interview"), during which Strashok was under oath and represented by counsel;

excerpts from transcripts (some transcribed by Staff) of investigative interviews

(some compelled) of Arbour investors, IFFL members and IFFL salespersons

(facilitators or structurists) conducted by Staff, BCSC staff or staff of the United

States Securities and Exchange Commission (the "SEC"), during which some of

the interviewees were under oath and some were represented by counsel; and

Chute's testimony as to conversations she had with individuals, and copies of

emails, faxes and other documents that she told us were forwarded to her by those

individuals, in the course of Staff's investigation of this matter.

[48] Merendon and Sorenson submitted that very little of the Regier Interview is relevant.

They also submitted that we ought to give little or no weight to uncorroborated hearsay evidence,

and to evidence in respect of which there was no opportunity to cross-examine. Merendon and

Sorenson argued that they were effectively denied their right to cross-examine on much of the

evidence received in the Merits Hearing. They also argued that natural justice and procedural

fairness require that they have the right to test, to the extent possible, all evidence through cross-

examination and that they should not be found to have perpetrated a fraud based on compelled

statements such as the Morice Interview, the Brost Interview, the Weis Interview and the

Wigmore Interview.

[49] Staff are entitled to adduce in a Commission enforcement hearing evidence obtained by

them pursuant to sections 40 to 42 of the Act, including transcripts of compelled investigative

interviews. Natural justice and procedural fairness require that a respondent be given a

reasonable opportunity to comment on and challenge such evidence. However, hearsay evidence

can be challenged by means other than cross-examination, means that are in accord with natural

justice and procedural fairness.

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[50] In the recent QB Decision, Wittmann A.C.J. (as he then was) stated (at para. 205):

. . . Contrary to what the Applicants [Arbour and Morice], Merendon, Sorenson and Brost [and

IFFL] argue, the case law is clear that, in a regulatory context, the admission of hearsay or

compelled testimony or the lack of opportunity to cross-examine will not necessarily breach

procedural fairness . . . .

[51] In determining that a Commission panel did not err in admitting and relying on

transcripts of investigative interviews, the Alberta Court of Appeal in Alberta (Securities

Commission) v. Brost, 2008 ABCA 326 observed that the panel did not deny the respondents "an

opportunity to test the impugned hearsay evidence". Noting that the respondents did not testify

or apply to the Commission for subpoenas to have the interviewees testify, the court said (at

paras. 32, 36):

. . . It was up to the Commission staff to decide what case they would present. As L'Heureux-

Dubé said in R. v. Cook, [1997] 1 S.C.R. 1113 . . . at para. 39, we "fail to see why the defence

should not have to call witnesses which are beneficial to its own case." Brost had the opportunity

to testify at the hearing to explain the circumstantial case against him. He chose not to do so. The

other appellants could have sought to call Brost if they believed his evidence would help them.

They chose not to do so.

. . .

. . . The proceedings before the Commission were regulatory not prosecutorial or penal in nature

and the Commission did not deny the appellants an opportunity to test the impugned hearsay

evidence. Any of the appellants could have applied to the Commission for a subpoena to have any

of the other appellants testify: ss. 29(c) and 215 of the Act. No such applications were made and

all of the appellants elected not to testify. In other words, the appellants chose not to challenge the

reliability and content of the impugned hearsay evidence. To exclude that evidence in these

circumstances would effectively exempt the appellants from the authority under the Act to acquire

the evidence and from the evidential provisions of the Act. A party cannot claim he or she is

exempt from the effect of the conscriptive authority of the Act on the basis of tactical decisions

taken at hearing that are fully within their control.

[52] The court in Brost recognized that a Commission panel can appropriately admit and rely

on transcripts of investigative interviews provided that a respondent is afforded an opportunity to

challenge the reliability and content of such hearsay evidence, through (for example) testifying

himself or herself or compelling other respondents to testify. Here, the only Respondent to

testify at the Merits Hearing was Sorenson, and, of the nine interviewees who testified at the

Merits Hearing, only one was called by a Respondent.

[53] In accordance with sections 29(e) and (f) of the Act, we admitted hearsay evidence,

including the transcripts of investigative interviews, subject to our determination of the ultimate

weight to give such evidence. We appreciate that our findings, which could have serious

consequences for the Respondents, must be based on reliable evidence. In the result, we have

carefully considered the hearsay evidence admitted, as we have all other evidence admitted, and

ascribed what we consider to be the proper weight to the hearsay and other evidence.

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[54] We have not treated all hearsay evidence equally. We are cognizant that such evidence

may be proffered to prove the truth of statements made, to prove some objective fact or to

demonstrate something about credibility. For some of our findings, we have relied, in whole or

in part, on hearsay evidence adduced by Staff, Morice or Merendon and Sorenson that was

corroborated by or consistent with other evidence, which may have included hearsay evidence.

In assessing the weight to attach to statements made in any of the transcribed investigative

interviews, we have considered: whether the interviewee was examined under oath, indicating

sufficient appreciation of the solemnity of the process; whether the interviewee was represented

by counsel during the interview; whether the interviewee testified, or could have been summoned

to testify, at the Merits Hearing, thereby allowing testing or clarification by way of cross-

examination or panel questioning; and whether there was other evidence of the interviewee's

trustworthiness. That said, mindful that the Respondents are entitled to natural justice and

procedural fairness, we generally have given statements made in the investigative interviews less

weight than direct evidence and we generally have not relied exclusively on any particular

interview content in making any of our findings, with this caveat: because Morice and Brost

chose not to testify at the Merits Hearing and were not summoned to testify by any other

Respondent, we generally have treated statements made by Morice in the Morice Interview and

statements made by Brost in the Brost Interview and the Brost US Interview as we would direct

evidence and have sometimes relied on them exclusively in making findings, even though such

statements were untested during the Merits Hearing.

(f) Conflicting Evidence and Credibility

[55] It is not unusual in a Commission enforcement hearing for a panel to receive, and thus to

assess, conflicting evidence. It is also not unusual for a panel to assess the credibility of the

witnesses appearing before it, particularly when parties claim that their witnesses are more

credible than witnesses called by other parties.

[56] In deciding the weight to give certain evidence before us, we have needed to assess the

credibility of various witnesses from whom we heard, to grapple with conflicting evidence, or

both. When faced with conflicting testimony or documentary evidence in this case, we have

generally attached greater weight to evidence corroborated by other testimony, documentary

evidence or both. In our assessments and determinations, we have been mindful of the following

statement from R. v. Boyle, 2001 ABPC 152 at para. 107, citing Faryna v. Chorney, [1952] 2

D.L.R. 354 (B.C.C.A.) at 357, as referred to in Ironside at para. 103:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be

gauged solely by the test of whether the personal demeanour of the particular witness carried

conviction of truth. The test must reasonably subject his story to an examination of its consistency

with the probabilities that surround the currently existing conditions. In short, the real test of the

truth of the story of a witness in such a case must be its harmony with the preponderance of the

probabilities which a practical and informed person would readily recognize as reasonable in that

place and in those conditions.

[57] While specific conclusions on credibility and conflicting evidence are noted elsewhere in

our reasons, we here provide some general conclusions on credibility.

[58] Before addressing in somewhat greater detail the credibility of Regier, Hoffman, Skeith,

Sorenson, Blakey, Blaikie, Gleason and Ken Sorensen, we note that we have accepted as

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generally credible all other witnesses from whom we heard, relying on their testimony to a

greater or lesser extent having regard to its relevance and in certain respects its reliability in light

of the evidence in totality. In so saying, we have attached no importance to Chute's presence

during Regier's testimony when under cross-examination herself (as noted by Merendon and

Sorenson) given that Chute's testimony was, for the most part, non-controversial – that is,

directed at explaining Staff's investigation and entering exhibits for Staff's case.

Regier

[59] Merendon and Sorenson submitted that Regier's credibility "is very seriously in issue in

this case", noting (among other things) that he was charged criminally, and pleaded guilty to a

lesser charge, in respect of some misrepresentations made to Staff in another Commission

enforcement proceeding and that he acknowledged being untruthful in making certain statements

to Staff during the Regier Interview. Staff conceded that Regier's testimony should be viewed

with caution but submitted that, whatever Regier's reasons for previously lying, there was no

evidence to indicate he was untruthful when testifying at the Merits Hearing. Staff argued that

Regier has "candidly admitted his actions were wrong" and "has since cooperated with Staff, the

RCMP" and others.

[60] Regier's credibility, given his past actions, was indeed in issue. A different Commission

panel found Regier liable for breaches of the Act and conduct contrary to the public interest in

Re Capital Alternatives Inc., 2007 ABASC 79 and subsequently ordered him to pay an

administrative penalty and costs totalling more than $200 000. Regier testified that he paid the

amount ordered, but with money originating from Merendon Mining (Colorado) Inc. ("Merendon

Colorado"), a company of Brost. Relating specifically to his credibility, Regier admitted that the

Commission found him to have made misrepresentations to Staff during the Capital Alternatives

investigation and that he was charged criminally in respect of certain of those misrepresentations.

In 2007 Regier pleaded guilty to, and was convicted of and fined for, misleading a peace officer.

Despite this, Regier stated that he would tell the truth at the Merits Hearing and that we should

believe that because:

I made a number of mistakes along the way. This was one of them.

. . .

. . . Misleading the [Commission] was one of them, and I did pay a price. I carry with me a

criminal record, and I hurt a lot of people that I love. Since that time I have been very

cooperative. I've been assisting the RCMP as -- and giving them testimony. I've worked with the

Alberta Securities and Exchange Commission [sic], the FBI [Federal Bureau of Investigation] and

the IRS [Internal Revenue Service] in the U.S., and I've also recently given evidence to the CRA

[Canada Revenue Agency].

[61] As noted, Regier acknowledged (under cross-examination by Merendon and Sorenson)

that he was untruthful in making certain statements to Staff during the Regier Interview,

including the following statements on 12 September and 4 October 2005: that he owned

Expedia, had no business relationship with Brost, and was not involved with other businesses at

the time. Regier agreed that, after the Regier Interview in September 2005, he realized that the

Strategic transactions were not supported by documentation. Regier further agreed that he, Brost

and Edna Forrest ("Forrest") then met, talked about what testimony to give to Staff and created

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falsified documents to provide to Staff. Regier did not believe that Merendon or Sorenson had

anything to do with the creation of these documents.

[62] While under cross-examination, Regier also agreed that among the documents he and

others fabricated for the Commission's Capital Alternatives enforcement proceeding were

distribution instructions from True North: "I was aware that they were fabricated, yes. I just

can't recall whether I created them or whether that was done by somebody else." Regier further

agreed with the following statements by Merendon and Sorenson: "it was Brost's idea to set out

where funds were being directed to and by whom"; no documentation had existed at the time of

fund transfers "to substantiate those transactions"; "Brost was directing things"; and Regier

"received [his] instructions solely from [Brost]".

[63] Under further cross-examination, Regier acknowledged that he was not involved in

conducting business or fundraising for Arbour, in Arbour's day-to-day operations, or with

Arbour's accounting. Regier also testified that he had no specific knowledge of when

agreements between Arbour and Merendon were prepared – that is, before or after the fact.

[64] Despite his past actions, we have concluded that, generally, the testimony of Regier on

key points was credible. To that end, we note that Regier was forthright with us about his

previous untruthfulness and that he has since been cooperating with Staff and the RCMP. Most

important, his testimony on key points was corroborated by or consistent with other evidence

before us, or otherwise believable given the evidence as a whole.

Hoffman

[65] As mentioned, Merendon and Sorenson questioned Hoffman's credibility and motives in

making the Hoffman Tapes, and in, it seems, his testimony generally.

[66] While we have some difficulty with Hoffman's explanation for the destruction of certain

of the Hoffman Tapes, we have nonetheless concluded that, generally, Hoffman's testimony on

key points was credible. To that end, we note that there was nothing in Hoffman's demeanour

that caused us to question the general truthfulness of his testimony before us. Most important,

his testimony on key points was corroborated by or consistent with other evidence before us, or

otherwise believable given the evidence as a whole.

Skeith

[67] Although we have found Skeith and his testimony to be generally credible, it seemed to

us that he was reticent to testify on certain matters in issue (perhaps out of a sense of loyalty to

his former clients) and that the content of some of his testimony was more a reflection of his

former clients' viewpoint than of his experience as a lawyer.

Sorenson

[68] Staff submitted that Sorenson "lacked credibility entirely". Staff contended – a

contention with which we agree – that Sorenson's decision to testify after listening to all other

testimony during the Merits Hearing affects the weight that can be given to his testimony. Staff

ultimately contended that we ought to disregard Sorenson's testimony in its entirety, except

where Sorenson testified as to uncontested matters or made admissions against his own interest.

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[69] Sorenson's testimony concerning non-controversial matters was generally credible, and

evidence to which Merendon and Sorenson referred us concerning such matters was not

inconsistent with other evidence.

[70] However, Sorenson's testimony in important aspects – generally regarding matters that

might implicate, or be damaging to, him in relation to issues in the Merits Hearing – was not

credible. Concerning such matters, Sorenson was at times evasive or conveniently forgetful, and

his testimony in relation thereto was inconsistent with other evidence before us, simply defied

belief as nonsensical, simply defied belief given the evidence as a whole, or seemed tailored to

address the earlier testimony of others. For instance (and as discussed below), we have found

not credible Sorenson's testimony that, or to the effect that, he: was not a hands-on chief

executive officer ("CEO") directly involved in Merendon's management decisions related to

issues in the Merits Hearing; was not involved in the management or operation of, and made

decisions about, SGD; was not involved in the IBG discussions about Arbour; and was not

involved in negotiating the Canadian Oilsands Recovery Enterprises Ltd. ("COREL") and TRL

sales transactions. As discussed below, we also reject Sorenson's testimony claiming or

suggesting he was unaware that Arbour was reactivated for the purpose of collecting investor

money being raised by Brost and others from IFFL members, which money would then be

funnelled to Merendon ultimately for use by Brost, Sorenson or both.

Blakey, Blaikie, Gleason and Ken Sorensen

[71] The testimony of Blakey, Blaikie, Gleason and Ken Sorensen, whose interests were at

least in some respects aligned with those of Sorenson, has also presented challenges. Each was

sometimes evasive or conveniently forgetful when testifying about certain matters – those that

might implicate, or be damaging to, him or Merendon or Sorenson in relation to issues in the

Merits Hearing. Blakey's, Blaikie's, Gleason's and Ken Sorensen's testimony generally regarding

such matters lacked credibility – being inconsistent with other evidence before us, simply

defying belief as nonsensical, or simply defying belief given the evidence as a whole.

(g) Adverse Inference

[72] Merendon and Sorenson submitted that an adverse inference should be drawn against

Arbour and Morice, who had, in a pre-hearing application, declared an intention to call Forrest as

a witness at the Merits Hearing (if Staff did not do so), suggesting that her testimony would

support Arbour's and Morice's theory of the case and be damaging to Brost and Sorenson.

Merendon and Sorenson argued that, given that neither Arbour nor Morice called Forrest as a

witness at the Merits Hearing, it must be concluded that her testimony would not have supported

Arbour's and Morice's theory of the case.

[73] We are entitled to draw an adverse inference against a party when, in the absence of an

explanation, that party fails to call a witness who would have knowledge of the facts and

presumably would be willing to assist that party. However, given our findings below that all

extant allegations against Arbour and Morice have been proved to the requisite evidentiary

standard based on sufficiently clear, convincing and cogent evidence, we need not address this

point.

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(h) Fairness of the Proceedings

[74] At various stages of this proceeding, various of the Respondents expressed concerns that

they suggested brought into question the fairness of this proceeding. Some of these concerns we

addressed above. Another concern raised by Morice and Merendon and Sorenson involved

Staff's handling of their disclosure obligation to the Respondents.

[75] Morice contended that Staff should have requested and obtained all material that the

RCMP had gathered in the course of its investigation of alleged criminal activity involving

certain of the Respondents.

[76] Merendon and Sorenson submitted that Staff's approach to disclosure has resulted in an

unfair hearing for Merendon and Sorenson. They suggested that Staff had been "playing games"

with disclosure, arguing that it became obvious during the Merits Hearing that Staff effectively

had more disclosure within their "grasp" than they ever indicated in the many applications for

disclosure. Merendon and Sorenson contended that Staff used other cooperating agencies, such

as the RCMP and the SEC, as "a library of convenience" from which "Staff could check out what

[they] needed to prove [their] case, where [they] needed it, while safely keeping everything else

from the scrutiny of the [p]anel and the Respondents". Merendon and Sorenson argued that Staff

did not properly fulfil their investigatory function because, "if [they have] a source for

information, they should at least ask the source for everything relating to a given subject of

interest".

[77] Merendon and Sorenson theorized about Staff's motive for so acting. They pointed to the

results of a pre-hearing application made by them for disclosure of some 34 000 pages of

documents Staff had obtained from the SEC. Staff had apparently voluntarily disclosed

approximately 1000 pages, but refused to disclose the remaining documents as being irrelevant.

A Commission panel, after reviewing these documents, directed that Staff disclose the majority

of them to the Respondents. Merendon and Sorenson appeared to suggest that, following this

direction, Staff then sought to avoid disclosure of exculpatory documents or panel scrutiny of

documents in their possession by embarking on a course of "selective disclosure" resulting in

"disclosure of convenience".

[78] Staff submitted that there is no merit to these contentions of Merendon and Sorenson,

which they characterized as "offensive". Staff's position was that there was no evidence to

support the suggestion that Staff had not complied with their duty to provide full and timely

disclosure to the Respondents or that the Respondents were not given a fair hearing. Staff

argued that documents obtained by them late in the Merits Hearing for the purpose of

impeaching Sorenson's credibility neither formed part of Staff's disclosure nor constituted late

disclosure.

[79] The extent of Staff's disclosure obligation in a securities regulatory proceeding has been

evolving since the issuance of the Supreme Court of Canada's seminal decision R. v.

Stinchcombe, [1991] 3 S.C.R. 326, which confirmed that Crown counsel, in the criminal

proceeding context, has a duty to disclose all relevant information in its possession relating to the

investigation of an accused. The purpose of obliging pre-trial disclosure of the prosecution's

case is an adjunct to an accused's right to make full answer and defence and, ultimately, to

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provide for a fair trial. The fundamental principle of fairness that an affected party has the right

to know the case it has to meet has been long established in administrative proceedings, but the

Stinchcombe disclosure duty has met with varying applications in administrative proceedings.

[80] The principles governing the duty of disclosure set out in Stinchcombe were formulated

in the context of criminal prosecutions of indictable offences. Mr. Justice Sopinka specifically

noted (at 342) that the court's endorsement of a broad duty of disclosure cannot be applied

without a consideration of the nature of the proceeding, and that the courts would need to decide

"where to draw the line" as to what constitutes proper disclosure in cases involving less serious

criminal offences. That is, the disclosure obligation is to be considered in the context of the

particular proceeding.

[81] There is no question that securities regulatory proceedings, such as here, involve serious

allegations and potentially grave consequences. In the result, this Commission and other

securities regulatory authorities have accepted that the Stinchcombe criminal process rules of full

pre-trial disclosure apply in enforcement proceedings, obliging Staff to disclose to a respondent

all relevant fruits of their investigation of a respondent's alleged misconduct that are in their

possession or control. The objective of such full disclosure, as is the case in criminal

proceedings, is to enable a person alleged to have contravened Alberta securities laws to make

full answer and defence to the allegations faced, and to provide for a fair hearing.

[82] However, a respondent's rights to disclosure and a fair hearing must be balanced against

other systemic demands, practicalities and the interests of others involved in the securities

regulatory proceeding. In R. v. O'Connor, [1995] 4 S.C.R. 411, in dissenting on the issue of

production in criminal proceedings of records in the possession of third parties, McLachlin J. (as

she then was) said (at paras. 193-94):

The task before us on this appeal is to devise a test for the production of records held by third

parties which preserves the right of an accused to a fair trial while respecting individual and public

interest in privacy and the efficient administration of justice. The key to achieving this lies in

recognition that the Canadian Charter of Rights and Freedoms guarantees not the fairest of all

possible trials, but rather a trial which is fundamentally fair: R. v. Harrer, [1995] 3 S.C.R. 562.

What constitutes a fair trial takes into account not only the perspective of the accused, but the

practical limits of the system of justice and the lawful interests of others involved in the process,

like complainants and the agencies which assist them in dealing with the trauma they may have

suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the

law demands is not perfect justice, but fundamentally fair justice.

Perfect justice in the eyes of the accused might suggest that an accused person should be shown

every scintilla of information which might possibly be useful to his defence. From the accused's

perspective, the catalogue would include not only information touching on the events at issue, but

anything that might conceivably be used in cross-examination to discredit or shake a Crown

witness. When other perspectives are considered, however, the picture changes. The need for a

system of justice which is workable, affordable and expeditious; the danger of diverting the jury

from the true issues; and the privacy interests of those who find themselves caught up in the

justice system -- all these point to a more realistic standard of disclosure consistent with

fundamental fairness. That, and nothing more, is what the law requires.

[83] Administrative tribunals such as the Commission must be increasingly judicious in their

use of formal court-like processes in enforcement proceedings to ensure not only that

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respondents are accorded natural justice and procedural fairness but also that allegations of

contraventions of regulatory requirements are handled with due efficiency and effectiveness.

Courts, too, recognize the need be judicious in their use of process as the court in R. v. McNeil,

[2009] 1 S.C.R. 66 commented (at para. 28):

. . . it is important for the effective administration of justice that criminal trials remain focussed on

the issues to be tried and that scarce judicial resources not be squandered in "fishing expeditions"

for irrelevant evidence. . . .

[84] The objective of disclosure in a Commission enforcement proceeding is to assist a

respondent in making full answer and defence without allowing the proceeding to be diverted by

irrelevancies, or become "a conglomeration of satellite hearings on collateral matters" (McNeil at

para. 45). A process that provides for adequate disclosure yet dissuades fishing forays is one that

appropriately balances a respondent's right to procedural fairness with efficient process.

[85] Staff are obliged to disclose the fruits of their investigation that are in their possession or

control. However, when information lies in the hands of a third party, it falls outside the

Stinchcombe disclosure regime. Thus, a respondent seeking to obtain "information in the

possession of a third party must look to some other procedural mechanism" (Re Workum, 2005

ABASC 986 at para. 49), such as an O'Connor proceeding by which third-party information may

be accessed on application to the court. In an O'Connor proceeding, the judge, acting as a

gatekeeper, must be satisfied that the applicant is not engaging in a "speculative, fanciful,

disruptive, unmeritorious, obstructive and time-consuming" (O'Connor at para. 24, quoting R. v.

Chaplin, [1995] 1 S.C.R. 727 at para. 32) fishing expedition, and that it is appropriate for the

court to compel the production of material held by a third party. Once a Commission

enforcement hearing has commenced, section 29 of the Act permits a respondent to access third-

party information by obtaining a notice to attend and produce documents, which compels third

parties to produce relevant materials in their possession. A witness so compelled may resist

attendance and production of their documents if the respondent cannot establish that the evidence

sought is potentially relevant to the allegations to be decided in the enforcement proceeding.

[86] Staff did not have ready access to information in the hands of the RCMP (we understand

that, in fact, a court order was required to obtain certain information from the RCMP) or the SEC

and so could not disclose what they did not have.

[87] Consistent with our rulings on earlier applications (Re Arbour Energy Inc., 2009 ABASC

366; and Re Arbour Energy Inc., 2010 ABASC 11), we are of the view that the principles set out

in McNeil do not require Staff to search out information from government or policing authorities

or agencies who are strangers to this proceeding. Neither the RCMP, a separate policing agency,

nor the SEC, a separate government agency in another country, can be said to be a policing or

government agency on the same first-party footing as Staff with respect to disclosure. In the

case of Arbour and Morice, they sought information in the possession of a separate policing

agency, the RCMP. In respect of such information Arbour and Morice apparently commenced,

but did not follow through with, an O'Connor application in the QB Court. At the outset of the

Merits Hearing, Arbour and Morice did summon an RCMP sergeant, who was directed to bring

with him several documents; however, excerpts from only a few of those documents were found

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to be relevant to the allegations in this proceeding (Re Arbour Energy Inc., 2009 ABASC 366;

and Re Arbour Energy Inc., 2009 ABASC 428).

[88] Even if we assume that Staff had a duty during their investigation to make further

inquiries of these agencies, we conclude that such duty would extend only to making reasonable

inquiries after a disclosure request had been received by Staff and the information in their

possession reasonably required such inquiries.

[89] In any event, it appears that Staff in this proceeding did make inquiries or in some other

fashion obtained material from the RCMP and the SEC, from which relevant material was

ultimately disclosed to the Respondents. There was no evidence before us as to the nature or

extent of inquiries made of these agencies by Staff. There was also no evidence before us that

Staff failed to make appropriate inquiries of these or other agencies, that their inquiries would

have failed to uncover any documents with a clear nexus to the issues in this proceeding, or that

Staff had in their possession information that reasonably compelled them to make further

inquiries. None of the Respondents sufficiently particularized or identified any documents that

were not disclosed to them. There was no evidence that either the RCMP or the SEC had

additional material that was directly related to the circumstances of the allegations made against

the Respondents and not disclosed. Contrary to the suggestions of Merendon and Sorenson,

there was no evidence that, in discharging their disclosure obligation, Staff acted deliberately or

in bad faith with a view to frustrating the Respondents' defences.

[90] We understand that over many years Brost, IFFL, Merendon and Sorenson engaged in

activities that garnered the attention of criminal investigators and securities regulatory

investigators in this country and the United States, resulting in numerous civil lawsuits, criminal

proceedings and securities regulatory actions. Apparently these related to their involvement in a

myriad of ventures, most of which were not connected to Arbour. Such lawsuits, proceedings

and actions could, we do not doubt, be the source of irrelevancies, clouding matters and

impeding proper resolution of the allegations before us.

[91] Staff made extensive disclosure to the Respondents – such disclosure continued

throughout the Merits Hearing. In our view, even if there were a failure by Staff to disclose all

potentially relevant information, we find that any such failure would not have prevented the

Respondents from knowing the case they had to meet or in making full answer and defence. We

reiterate that perfect disclosure is neither possible nor required.

[92] Finally, because the relevance of certain evidence led by Staff and the Respondents was

unclear, we gave all parties considerable latitude in the conduct of their cases, sometimes hearing

what we ultimately determined to be evidence irrelevant to the issues before us. A defence was

aggressively advanced by each of the Respondents who participated in the Merits Hearing, and

we are satisfied that none of the Respondents has been prejudiced in any way in this respect.

The Respondents were able to summon witnesses and their documents. The Respondents were

also able to, and those participating in the Merits Hearing did, call witnesses of their choosing to

provide evidence as part of their defences. The Respondents who participated in the Merits

Hearing also conducted cross-examinations, sometimes extensive, of witnesses called by other

parties.

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[93] In short, we are satisfied that neither the Merits Hearing nor the actions of Staff were

such as to violate the rules of natural justice or procedural fairness.

A. The Respondents and Other Parties

[94] The following descriptions of the Respondents and other parties are the panel's findings

of facts based on the evidence. We discuss some non-parties quite extensively as background

necessary to an understanding of the labyrinth of corporate and personal relationships involving

and surrounding the Respondents. The extensive connections among some of the entities and

individuals lead to some necessary repetition in this section.

1. The Respondents

(a) Arbour

[95] Arbour was incorporated in Alberta on 9 April 2001 and had its head office in Calgary.

Calgary lawyer Strashok was one of the original founders of Arbour, as well as a director and

officer and its legal counsel. Other directors and officers at the time included Gary Strashok,

Gary Holden ("Holden"), Michael Gardner ("Gardner") and Cliff Monar ("Monar"). Gary

Strashok, Gardner and Monar remained in those positions until new management took over in

June 2004; Strashok stayed slightly longer, as did Holden (in his position as chair of the Arbour

board of directors).

[96] Morice and Weis were appointed as directors of Arbour on 11 June 2004, with Wigmore

appointed a director on 9 September 2004. Morice was also Arbour's president and secretary

from 11 June 2004, becoming its CEO and CFO on 9 September 2004. As of 2 August 2007, the

directors of Arbour were still Morice, Weis and Wigmore.

[97] Arbour became a reporting issuer in Alberta when it filed a preliminary prospectus and a

prospectus – the latter was receipted by the Commission's Executive Director (the "Executive

Director") on 18 December 2001. No preliminary or final prospectus has ever been filed or

receipted by the Executive Director for the distribution of the Arbour preferred shares (the

"Arbour Preferred Shares") at issue in this proceeding. Arbour has never been registered with

the Executive Director to trade in securities.

[98] Arbour common shares had been listed and posted for trading on the TSX Venture

Exchange (the "Exchange") until their de-listing on 21 July 2004. Arbour's securities never

resumed trading on the Exchange, although they continued trading on the Canadian Trading and

Quotation System Inc. (the "CNQ"). In June 2007, Morice advised Arbour shareholders that the

CNQ had de-listed Arbour. A November 2006 letter in evidence referred to Arbour being

"inactive".

[99] It seems that Arbour is currently inactive and unlikely to resume operations. The

investors from and about whom we heard appear to have lost some – if not all – of their

investments in the Arbour Preferred Shares.

III. FACTUAL BACKGROUND

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(b) Morice

[100] Morice, a Calgary resident, is a certified general accountant. His employment over the

27 years prior to his employment at Arbour was primarily in the accounting field with some

sporadic involvement in some "entrepreneurial type ventures [and] a couple of public

companies". Morice has never been registered with the Executive Director to trade in securities.

[101] Morice became president, secretary and a director of Arbour on 11 June 2004 and

became CEO and CFO on 9 September 2004. Morice's IFFL connection predated his

involvement with Arbour – his accounting firm had apparently been retained by another

organization to assist IFFL members with the preparation of their 2003 annual tax returns.

(c) Brost

[102] Brost is a Calgary resident. A high school graduate, he worked in the construction and

sales industries for several years. He then worked in the financial services industry, including as

an insurance and mutual fund agent for a few years. Brost was registered with the Executive

Director as a mutual fund salesperson from approximately 1992 until September 1996, but has

not subsequently been registered with the Executive Director to trade in securities or to act as an

advisor.

[103] In 1999 Brost founded Capital Alternatives; we are satisfied that he was its controlling

mind. According to Brost, Capital Alternatives created in 1999 "morphed" into IFFL, although

IFFL was a separate corporate entity incorporated in Alberta on 23 April 2003. Brost estimated

that several hundred Capital Alternatives members later became IFFL members. Brost formed

and ran IFFL and was, at the time relevant to the allegations, a director, its sole shareholder and

CEO. Brost described himself as an "owner" and "[f]igurehead" of IFFL; we find he was IFFL's

controlling mind.

[104] Brost also held numerous other corporate and directorship positions including: a

shareholder of SGD; an officer of Bellringer; and the controlling mind of True North. Brost was

a member of the IBG Advisory Committee.

[105] Brost's first name is sometimes spelled "Milo" or "Mylo" in the evidence. He is also

known by various aliases, including M.B. Gonne and Phillip K. Collins.

[106] On 22 September 2004 Brost gave a written undertaking for himself (the "Brost

Undertaking") and another as president and CEO of IFFL (the "IFFL Undertaking") to the

Commission. These were accepted by the Commission as reflected in an order dated 30

September 2004 (the "Undertaking Order"). In the Brost Undertaking, Brost, in his capacity as

president and CEO of IFFL, undertook that he would "not, directly or indirectly, cause,

encourage, instruct, allow, condone or participate in any trading in securities or acting as an

advisor" personally or on behalf of IFFL or any of IFFL's facilitators, structurists or agents. He

also undertook not to "incorporate or organize" another entity to "trade in securities or act as an

advisor". In the IFFL Undertaking, Brost, also in his capacity as president and CEO of IFFL,

undertook that IFFL would not trade in securities or act as an advisor.

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(d) IFFL

[107] IFFL was incorporated in Alberta on 23 April 2003 and had its head office in Calgary.

IFFL is not a reporting issuer in Alberta and has never been registered with the Executive

Director to trade in securities or act as an advisor.

[108] As discussed more fully above, IFFL entered into the IFFL Undertaking and was subject

to the Undertaking Order.

(e) Sorenson

[109] Sorenson is a resident of Calgary. Since 1999, Sorenson had resided predominantly in

Tegucigalpa, Honduras until his return to Calgary in 2009. After attending high school,

Sorenson spent many years involved in gold mining and personal business ventures in both

North America and Europe. In 1996 he learned about gold mining opportunities in Central

America and began Merendon. At the times relevant to the allegations, he was CEO, chairman, a

director and – both directly and indirectly – the controlling shareholder of Merendon.

[110] We find that Sorenson was Merendon's directing mind and that he was, for all intents and

purposes, Merendon. Sorenson ultimately owned or controlled 90% of Merendon's shares and

had a select group of directors, with friends and family members representing close to half of the

composition of the board of directors during the period in question. He was an officer (usually

the most senior) of most if not all of the Merendon subsidiaries. He had the final approval on all

Merendon expenditures and all material contracts.

[111] Sorenson had numerous other corporate and directorship interests at the times relevant to

the allegations – he was a shareholder of SGD and a shareholder and the controlling mind of

Eiger Capital Corporation ("Eiger", sometimes referred to as "Eigar" in the documentary

evidence). Sorenson was listed for a time as a director of Strategic (in error, he contended) and

was the president of and owned for a time (through Merendon, his company) Stone Mountain

Resources Ltd. ("Stone Mountain"), until selling it to Strategic in January 2005. Sorenson was

also a member of the IBG Advisory Committee.

[112] Sorenson is also known by the aliases "Don Grey Wolf" (or "Don Greywolf") and

"Greywolf".

(f) Merendon

[113] Merendon was incorporated as 685106 Alberta Inc. in Alberta in 1996, subsequently

changing its name to Merendon on 9 May 1996. Merendon is a private company.

[114] Merendon was a junior exploration mining company focused on the exploration and

development of mining concessions.

[115] Merendon maintained its head office in Calgary until leaving the jurisdiction in late 2007

to relocate in Belize with its headquarters in Honduras. Merendon's headquarters in Honduras

during the period relevant to the allegations was located outside of the city of Tegucigalpa,

Honduras and consisted of a number of buildings within a walled compound of some 12.5 acres.

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This included a gold refinery, office buildings and a medical clinic. Sorenson's residence was

also in Honduras.

[116] Alberta Corporate Registration System ("CORES") records for Merendon as at 16 March

1998 showed that William Dallas ("Dallas", with a Carstairs address), Jack Monkman

("Monkman") (with a Medicine Hat address), Rodney Morris (with a Calgary address) and

Wigmore (with a Delta, British Columbia address) were appointed directors of Merendon on

16 September 1997, and that the other directors were Rolando Luque (with a Honduras address),

Sorenson (with a Calgary address) and Donna Sorenson (Sorenson's wife at the time, with the

same Calgary address as the one then showing for Sorenson).

[117] CORES records for Merendon as at 22 March 2004 showed that: Larry Adair ("Adair"),

Darrell Hewitt and Wigmore ceased to be directors on 2 March 2004; 685141 Alberta Inc. and

Carmen Pinto were inactive shareholders; Blaikie (with his name misspelled) and Thelma

Sorenson (both with a Tegucigalpa address) and Monkman and Strashok (both with the same

address as Merendon's registered office address) were appointed directors on 2 March 2004; and

its main shareholder was Eiger (with a Tegucigalpa address) with 65% of the voting shares.

There was no indication on CORES as to who held the balance of Merendon's shares.

[118] CORES records for Merendon as at 14 July 2004 identified Merendon's directors as:

Blaikie and Thelma Sorenson (both with a Tegucigalpa address); Dallas (with a Carstairs

address); and Monkman, Sorenson, Strashok and Jack Wolfe (all four with the same address as

Merendon's registered office address). Two shareholders were identified – Eiger (with a

Tegucigalpa address) with 65% of the voting shares and Glenda Savard of Calgary with 7% of

the voting shares. In 2007 Eiger became the holder of 93% of Merendon's voting shares,

reduced by the time of the Merits Hearing to approximately 86 or 87%.

[119] Sorenson was the chairman and CEO of Merendon at all times relevant to the allegations.

Wigmore was the president of Merendon from approximately October 2001 until November

2003. Merendon apparently then had no president until Monkman became its president on 11

February 2004, a position he held until 1 April 2005 when Ken Sorensen was appointed

president. Ken Sorensen remained president until November 2007.

[120] Brost claimed to believe that the president of Merendon at any given time was the person

who made the decisions for Merendon. We reject that contention. It is clear from the evidence

before us that Sorenson exercised complete control at Merendon, including making the important

decisions, and we so find. We also note the approximately 3-month gap between Wigmore's and

Monkman's presidencies when Merendon had no president – obviously the position of president

was not critical. It is also clear from all the evidence – and we find – that Brost was fully aware

of Sorenson's power and influence over Merendon's affairs.

[121] Jack Wolfe was Merendon's controller until his death in 2005, when his son, Jared Wolfe,

assumed the position for a short time. Bierwirth, who worked in accounting at Merendon, was

then appointed controller, leaving shortly before Gleason was appointed Merendon's CFO in

June or July 2006.

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[122] Merendon's non-consolidated comparative financial statements for the years ending

31 December 2003, 2004 and 2005, along with the pro forma statements to 31 December 2006

(the "Merendon Financial Statements") list a number of entities in a section titled "Investment in

and advances to subsidiaries". Using that list and other information in evidence, we compiled at

least a partial list of Merendon's subsidiaries (some of which had Sorenson as president, at least

at one point):

Merendon Honduras, a wholly-owned subsidiary of Merendon, was incorporated

in 1996. It operated a gold refinery and was Merendon's "administration entity

for Central and South America".

Merendon Jewellery S.A. (Honduras) ("Merendon Jewellery") was a Honduran

corporation primarily owned by Merendon. It produced and sold jewellery.

Merendon Hospitality Group (Honduras) – about which we had little pertinent

information.

Oro y Metales Preciosos S.A. (Honduras) ("Oro Metales") was a Honduran

corporation owned by Merendon Honduras. It was the mining division or

"geological department" of Merendon's operations in Honduras.

Seguridad Honduras Canada S.A. (known as "SEHOCAN") was a security

company owned by Merendon Honduras. It provided security for Merendon's

operations and personnel in Honduras.

Merendon Ecuador, a wholly-owned subsidiary of Merendon, was established in

2004. Its activities involved "the acquisition of mining concessions, exploration

of those concessions, development and production of mines, and production of

precious metals" in Ecuador, including the operation of mining concessions in the

Tena region of Ecuador (the "Tena Concessions"). The evidence indicated that

Merendon Ecuador's monthly operating expenses were approximately $100 000 at

the time of the Merits Hearing, but had been approximately $240 000 in earlier

years.

Merendon Peru, a Peruvian corporation, had been 60% owned by Merendon;

Merendon later owned 79% and Eiger owned the remaining 21%. The evidence

indicated that Merendon Peru's mining operations had been suspended in 2003 to

concentrate on exploration.

Merendon de Venezuela C.A. ("Merendon Venezuela"), a corporation

incorporated in 2001, was owned by Merendon Honduras. It operated a custom

gold milling operation.

Merendon Hospitality Venezuela operated a resort called Saranda.

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Empresa Minera Portovelo Ecuador S.A. ("EMPEC") apparently was 55% owned

by Merendon Honduras and operated a gold mine and processing plant. The

operating costs of EMPEC had been in the range of $250 000 to $500 000 per

month until Merendon lost control of EMPEC in 2007 when it was taken over in

an armed invasion.

Alegre Events & Marketing was a Calgary "events and marketing company"

about which we had little pertinent information.

COREL – discussed later in more detail.

Guanja Reef Club – about which we had little pertinent information.

Magna North Gold Ltd. ("Magna North") – discussed later in more detail.

Sorenco Oil & Gas ("Sorenco") was an entity owned by Ken Sorensen (51%) and

Merendon (49%).

Tari Tari Tours – about which we had little pertinent information.

Universal Lighting – about which we had little pertinent information.

Stone Mountain was a British Columbia corporation owned by Merendon until

sold to Strategic. Sorenson was president of Stone Mountain until replaced by

Wigmore.

TRL – discussed later in more detail.

[123] Merendon, Sorenson, Monkman and Jack Wolfe were sanctioned by this Commission in

October 2004, following the approval of a Settlement Agreement in which they admitted to

illegal trading in Merendon securities and other conduct contrary to the Act. The market-access

bans ordered ranged from two years (for Merendon and Sorenson) to six months (for Monkman

and Jack Wolfe).

2. Other Parties

[124] Many other parties who are not Respondents or did not appear as witnesses during the

Merits Hearing were or are referred to during the course of the Merits Hearing and in these

reasons. To provide some helpful context, we identify and briefly discuss these parties here.

(a) 385765 Alberta Ltd. ("385765")

[125] 385765 was one of four vendors which sold COREL shares to Arbour. Its president at

that time was Pat Page ("Page"). 385765 also owned 25% of the shares of TRL.

(b) 1061463 Alberta Ltd. ("1061463")

[126] 1061463 was one of four vendors which sold COREL shares to Arbour. Its president at

that time was Ian McIntyre ("McIntyre"). 1061463 also owned 25% of the shares of TRL.

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(c) Adair

[127] Adair was a Florida lawyer. He was a business associate of Brost and had known Brost

since 1993. In approximately 1995 when Brost was president of Bellringer, he asked Adair to

become the vice-president of Bellringer, and Adair assumed that position. Adair was also

president of SGD from January 2002 until the end of 2003, and a director of Merendon for a time

until 2 March 2004. Adair was counsel for SGD and Merendon and appeared to have a strong

relationship with both Brost and Sorenson.

(d) Arbour Energy Caribbean Ltd. ("Arbour Caribbean")

[128] Arbour Caribbean was incorporated on 15 November 2004 under the laws of Barbados as

a wholly-owned subsidiary of Arbour. Morice was its president and a director.

(e) Arbour Energy US, Inc. ("Arbour US")

[129] Arbour US was a wholly-owned Nevada subsidiary of Arbour incorporated in 2005.

Arbour's apparent intention was to transfer Arbour's future-acquired technology and oil and gas

activity in the US to Arbour US.

(f) Bierwirth

[130] Bierwirth was the controller at Merendon from sometime in 2005 until early or mid 2006.

(g) Casey Brost

[131] Casey Brost is Brost's son. He was involved with a number of companies mentioned

during the course of the Merits Hearing such as SGD when its records were moved to Belize,

3Sixty Earth Foundation Ltd. ("3Sixty"; several versions of this name were in evidence),

Expedia and Fortris Business Systems ("Fortris"). Casey Brost was also a member of the IBG

Advisory Committee.

(h) Elizabeth Brost

[132] Elizabeth Brost is Brost's former wife. She provided administrative services to SGD in

Honduras at the Merendon Honduras compound from some time in 2004 until the SGD records

were moved to Fortris in Belize in late 2005 or early 2006.

(i) Charles D. Burgess ("Burgess")

[133] Burgess is a Calgary lawyer who was one of three lawyers hired by Brost in 2005 to

conduct due diligence on Merendon and report his findings (the "Burgess DD Report", dated

5 December 2005) to SGD.

(j) COREL

[134] COREL was an Alberta corporation. Until its sale to Arbour in 2006, its four

shareholders were Merendon, 385765, 1061463 and Monkman Consulting (Medicine Hat) Ltd.

(the proper name for the latter was apparently Monkman Consultants Medicine Hat Ltd.; we

refer to it as "Monkman Consultants") and its directors were Sorenson, Page, McIntyre and

Monkman.

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[135] Merendon paid $52 for its 52% of COREL's shares in 2003 – we infer that the other three

shareholders paid $1 for each 1% of ownership as well. Arbour purchased 100% of COREL

effective 1 January 2005 for $10.3 million and Arbour common shares.

(k) Capital Alternatives

[136] Capital Alternatives was an Alberta corporation between 1999 and 2003, when it,

according to Brost, "morphed" into IFFL and continued the "strategy and business development-

type education platforms". We find that Brost was the controlling mind of Capital Alternatives.

Some of the investor witnesses had been members of Capital Alternatives before becoming IFFL

members.

(l) Ward Capstick ("Capstick")

[137] Capstick was an associate of Brost and an IFFL structurist. Capstick was a director of

Merendon Nevada and also part of the IBG Advisory Committee.

(m) Eiger

[138] Eiger was incorporated in Belize. Its president and sole shareholder during the period

relevant to the allegations was Sorenson. (We note that the Burgess DD Report stated that Eiger

was a Bahamian company, which appears to be a mistake.) The evidence indicated that Eiger

was Merendon's majority shareholder, owning approximately 86 or 87% at the time of the Merits

Hearing. Sorenson stated that, at the time of the Merits Hearing, his son now owned and

controlled that majority shareholding of Eiger.

(n) Expedia

[139] Expedia was an Alberta corporation, registered on 6 November 2003 under the name

Expedient Serving Inc. until it changed its name to Expedia on 12 March 2004. The sole director

and shareholder, as of a 2 August 2007 CORES search, was James Verbeem ("Verbeem"),

Brost's stepson. According to Regier, who worked for Expedia, it was "indirectly" controlled by

Brost. Based on all the evidence, we find that Brost was the controlling mind of Expedia.

(o) Forrest

[140] Forrest was an associate of Brost. She was the president and a director of Strategic.

Blaikie thought that Forrest worked for Fortris in Belize on SGD administration. She may have

had a role with Expedia as well.

(p) Fortris

[141] Fortris was a company operated out of Belize by Casey Brost. Fortris took over SGD

account administration from Elizabeth Brost in late 2005 or early 2006.

(q) Grovenor Trust ("Grovenor")

[142] Grovenor was apparently an entity owned, controlled or operated by Kendall and

Houston out of Belize.

(r) Hobbs

[143] Hobbs, an Alberta resident, was a chartered accountant who provided accounting services

to Arbour on a consulting basis until her appointment as Arbour's CFO in August 2005.

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(s) Houston

[144] Houston was an associate of Brost and apparently had a business degree. Houston was a

former SGD shareholder and was involved with Grovenor and Steller Trust Services Ltd.

("Steller", sometimes referred to as "Stellar" in the documentary evidence). He was Strashok's

initial contact – representing Brost – regarding what became the resurrection of Arbour.

(t) Kendall

[145] Kendall was an associate of Brost and was apparently an accountant. Kendall was a

former SGD shareholder and was involved with Grovenor and Steller. He was a former vice-

president of Bellringer.

(u) La Conxion

[146] La Conxion (sometimes referred to as "La Conexion" in the documentary evidence) was

described by Brost as a Belize corporation owned by an international trust – IPC Corporation –

of which he was the declared manager, giving him the authority to manage La Conxion's affairs,

including its money. Brost alternatively described La Conxion as "my bank account which does

international joint ventures with other companies". Brost also referred to La Conxion as one of

his "many joint ventures", with the particular role of participating in the "bond deposit" of about

$10 million required by the "First National Bank of East Timor" – "a significant bond [that a

bank has to have in place] before it can ever do any business". Regier understood that Brost

owned or operated La Conxion. It is clear from the totality of the evidence – and we find – that

Brost owned or operated La Conxion.

(v) Magna North

[147] Magna North was a project in the Yukon of which Merendon was the 60% controlling

shareholder. Merendon's board of directors decided in 2007 to liquidate Merendon's holdings in

Magna North.

(w) Merendon Investment Group LLC ("Merendon Investment Group")

[148] Merendon Investment Group was incorporated in Nevis, with Eiger as its only

shareholder. The evidence indicated that Merendon Investment Group was the shareholder of

Merendon Nevada, at least as of February 2007, although Sorenson denied it. Regier thought

that Brost had transferred Merendon Nevada to Sorenson, but Regier did not know whether

Sorenson was aware of the purported transfer. Sorenson claimed not to be aware of Merendon

Colorado's and Merendon Nevada's existence until 2002 and not to be aware of at least some of

Brost's connections to those companies until 2009.

(x) Merendon Colorado

[149] Merendon Colorado was a company incorporated under the laws of Colorado in 2003. Its

three directors were Brost, Elizabeth Brost and Capstick.

(y) Merendon Nevada

[150] Merendon Nevada was a company incorporated under the laws of Nevada in 2002. Brost

was president and CEO, Capstick was a director and Regier was secretary and treasurer. Regier

stated that Merendon Nevada was a parent company, owning all the shares of Merendon

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Colorado. Although Sorenson denied it, other evidence indicated that, by February 2007,

Merendon Nevada was owned by Merendon Investment Group, which was owned by Eiger.

(z) Monkman

[151] Monkman was the director of Monkman Consultants, at least during the period

25 October 2001 to 2 August 2007. He was a former director and president of Merendon.

According to Sorenson, Monkman introduced both the COREL and TRL projects to Merendon.

(aa) Monkman Consultants

[152] Monkman Consultants was an Alberta corporation registered on 2 June 1977. Monkman

was the only director listed as of 2 August 2007, with Red Ridge Resources Inc. as the only

shareholder, although there had been a "Change Director / Shareholder" filing on 25 October

2001. CORES records stated that Monkman Consultants held shares in TRL and Magna North.

[153] Monkman Consultants was one of four vendors which sold COREL shares to Arbour.

Monkman Consultants also owned 25% of the shares of TRL.

(bb) Parklane International Corporation ("Parklane")

[154] Parklane was a corporation managed by Christopher Thompson, a Vancouver resident.

Parklane was apparently an organization that, although soliciting investors to invest in SGD in a

manner similar to Capital Alternatives and IFFL, was a separate organization. Sorenson was

aware of Parklane, as shown by a report made to him by Adair in 2005 regarding an investigation

into its operations by the BCSC.

(cc) SGD

[155] SGD was a Bahamian corporation dating from 1999. As of January 2000, SGD's

shareholders were Brost, Sorenson and Hoffman (Houston and Kendall had originally been

shareholders as well). SGD is now called Bahama Resource Alliance Ltd. ("Bahama Resource

Alliance").

[156] Hoffman was president from SGD's 1999 incorporation until 31 December 2001. Adair

was SGD's president from January 2002 until the end of 2003. Blaikie was SGD's president

from 1 January 2004 until 31 March 2007, at which time Martin Werner ("Werner") became

SGD's president.

[157] There was another company with a similar name but incorporated in Belize on 15 January

2002 ("SGD Belize"). The evidence indicates that Sorenson was aware of SGD Belize by

12 July 2005 at the latest, when he received its minute book from Adair. "IPC Corporate

Services, Inc." (similar in name to the "IPC Corporation" through which Brost stated he managed

La Conxion) became director and secretary for a short time until Adair was appointed to both

positions on 24 January 2002.

(dd) Thelma Duron/Thelma Sorenson

[158] Thelma Duron (Figueroa) or Thelma Sorenson (we refer to her as "Thelma Sorenson") is

Sorenson's wife who resided in Honduras. She was president of Merendon Ecuador for a time

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and held other positions with other Merendon entities. Her sister was controller of Merendon

Honduras at some point.

(ee) Steller

[159] Steller, an incorporated Belizean trust, was apparently managed by Kendall and Houston

out of Belize. Steller described itself as an "international management account provider".

(ff) Strashok

[160] Strashok was a Calgary lawyer who helped found Arbour. He was one of Arbour's

counsel, doing some legal work for it until approximately May 2004. He was president,

secretary and a director of Arbour at various times from incorporation until approximately

September 2004. Strashok was a director of Merendon between approximately February and

May 2004 (he disagreed with a CORES report identifying him as still a Merendon director in

July 2004). He was also counsel for Merendon from approximately December 2001 to May or

June 2004. Strashok was a director of and counsel for Stone Mountain, both for periods unclear

in the evidence.

(gg) Stone Mountain

[161] Stone Mountain was a company incorporated in British Columbia in 1993. It was owned

by Merendon for a time, then sold to Strategic effective 1 January 2005 for $9.6 million. When

owned by Merendon, Sorenson had been president of Stone Mountain, until he appointed

Wigmore to that position.

(hh) Strategic

[162] Strategic was incorporated under the laws of Alberta on 27 April 2004. Sorenson was

originally identified as one of the directors of Strategic in CORES records. This was

characterized as an error that was later corrected by Skeith – Strategic's legal counsel (and

Arbour's and Merendon's). He caused a notice of change of directors to be filed on 25 October

2004 identifying Forrest, Carol Weeks ("Weeks") and Regier as the directors. Forrest was

Strategic's president. Regier stated that Brost controlled Strategic. Strategic bought Stone

Mountain from Merendon, and was involved in negotiations to purchase Magna North from

Merendon.

(ii) TRL

[163] TRL, formerly 1061470 Alberta Ltd., was a private Alberta corporation, initially with

four shareholders (as with COREL) each owning 25% of TRL's issued and outstanding common

shares – Merendon, 385765, 1061463 and Monkman Consultants, whose principals were

Sorenson, Page, McIntyre and Monkman, respectively. Sorenson was a TRL director. TRL had

a license agreement with COREL "relating to the licensing of certain patent pending processes

and a patent pending vessel for the cleaning of processed sands in Alberta". Merendon acquired

its 25% interest in TRL on 14 August 2003 for $100 and sold it to Arbour effective 1 January

2006 for $28 672 617 (subject to upward adjustment).

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(jj) True North

[164] True North was a company controlled and managed by Brost. Brost was a signing

authority on True North's bank account. We conclude that he controlled the money deposited

into and disbursed from that account.

[165] Regier was a manager and an officer of True North, with signing authority on True

North's bank account.

[166] Regier identified two "True North" companies – "True North Arizona" and "True North

Nevada". He stated that True North Arizona was set up in the name of Tim Thomas, but that the

signing authority for the bank account was "M.B. Gonne", an alias of Brost. Regier said that

True North Nevada was owned by True North Arizona, with "the people of responsibility" being

Brost, Regier and Dale Joseph. True North's only source of revenue was investor funds; it had

no other business.

(kk) Verbeem

[167] Verbeem is Elizabeth Brost's son and Brost's stepson. Verbeem worked at IFFL. He was

the sole director and shareholder of Expedia, although we found that Brost was Expedia's

controlling mind.

(ll) Weeks

[168] Weeks was a director of Strategic. She provided some office assistance to Arbour.

(mm) Werner

[169] Werner, an attorney from Florida, was appointed the president of SGD in 2007. Werner

was still SGD's president up to at least November 2009. He was one of three lawyers hired by

Brost in 2005 to conduct due diligence on Merendon and report his findings (the "Werner DD

Report", dated 14 December 2005) to SGD.

(nn) Jack Wolfe

[170] Jack Wolfe was a director of Merendon and its controller from at least 2001 until his

death in 2005. According to Sorenson, Jack Wolfe was secretary and treasurer of Merendon at

its inception.

(oo) Jared Wolfe

[171] Jared Wolfe is Jack Wolfe's son. Jared Wolfe worked in Merendon's accounting

department and had responsibility for handling all intercorporate money wires and other banking

functions. He acted as Merendon's controller for a short time after his father's death.

3. Miscellaneous Entities

[172] We heard little evidence as to the ownership, control or purpose – or, in some cases, even

the legal names – of a number of entities that were connected in some way with Brost, Sorenson

or both. These entities included: 3Sixty; Alluvial United Inc. ("Alluvial"); Base Metals

Corporation LLC ("Base Metals"); Bearstone Capital Management Inc.; Bridgewater & Co. Inc.;

Canadian Audit Defense Network; Cascadia Management Services S.A.; Consumer Debt

Recovery Trust; Dorlan Trust Services ("Dorlan"); Evergreen Management Services LLC;

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Frontera Resources; Evergreen Trust Services Ltd.; Heritage Financial; IPC Corporate Services,

LLC; Nordic Merchant Credit Union; Onyx Trading Group LLC; Quattro (or Quatro); Rapid

Express; Red House; Tena Capital Corporation; Tena Capital Trust; Transiciones Universial

S.A.; Vicap Corporation; Voyageur (or Voyegeur); and Watchers International Transit Ltd.

B. Summary of Arbour's Activities

1. Context

[173] The activities of Arbour (and those allegedly responsible for those activities) are a crucial

part of the Merits Hearing. Later in these reasons, we provide extensive detail about the

evidence before us on Arbour's activities and the various participants. Here, however, we

provide a brief summary of those activities as context for the other background information.

2. Fundraising

[174] In 2004 Arbour issued approximately 2 million common shares at $1 per share to various

investors and a further 6 million common shares to Weis at $0.05 per share (Weis apparently

passed some of those on to Morice and Wigmore). All of these common shares were purportedly

issued pursuant to the accredited investor exemption.

[175] Arbour sold the Arbour Preferred Shares under three separate offering memoranda

between July 2004 and 16 November 2005. The total amount raised was approximately

$45.5 million, with over half coming from Alberta investors; the majority of all investors were

IFFL members.

3. Loans to Merendon

[176] Arbour loaned money to Merendon as reflected in two loan agreements dated 10 July

2004 and 1 January 2005 (although the loans pre-dated the signing of the loan agreements).

Merendon and Sorenson agreed with the dates and amounts of advances under these loans as set

out in the evidence.

4. Purchases of COREL and TRL

[177] The sale of COREL to Arbour – apparently announced by Arbour in January 2005 – was

documented in an agreement dated 1 January 2005, under which the four vendors (one of whom

was Merendon) were to receive a total of $5.3 million and 5 million common shares of Arbour

(valued at $1 per share). Merendon had acquired its 52% stake in COREL for $52; the other

three shareholders, we have inferred, paid proportionally the same. COREL's value was linked

to TRL's as COREL's principal asset was its license to sell the TRL technology in a specific

territory. There was no valuation – one done by an independent professional – of COREL or of

TRL at the time COREL was sold to Arbour.

[178] The TRL transaction, with its purchase price of some $28.6 million, was completed in

March 2007; it was documented in an agreement made effective 1 January 2006. Merendon had

acquired its 25% stake in TRL for $100. There was no valuation of TRL at the time Merendon

sold its 25% interest to Arbour.

[179] The TRL transaction extinguished the amounts loaned by Arbour to Merendon under the

second loan plus any interest owing thereon, totalling some $28.6 million. Moreover, in

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December 2008 Merendon claimed that, because Arbour had yet to complete a valuation of TRL

– which could result in an upward adjustment of the TRL transaction's purchase price to

$50 million – Arbour might owe Merendon in excess of the amounts loaned by Arbour to

Merendon under the first loan plus any interest owing thereon. Merendon so claimed despite

indications in the evidence and our finding (discussed below) that Brost and Sorenson pressured

Morice to finalize the TRL transaction before a valuation could be completed. If that claim were

to succeed, the TRL transaction could result in the extinguishment of all amounts (principal and

interest) owing from Merendon to Arbour under the two loans and Arbour being indebted to

Merendon for over $11 million.

[180] In the result, Merendon received in excess of $28 million – and could receive as much as

$50 million – for its sale of the unproven and unvalued TRL technology to Arbour.

C. The Brost-Sorenson Alliance

1. Brost's and Sorenson's Initial Contact

[181] Brost and Sorenson first met in 1999 when the then-president of Bellringer, Rodney

Alain, introduced Brost to Sorenson, apparently with a view to completing some sort of

transaction between Bellringer and Merendon that would revive the then-defunct Bellringer as a

going-concern. Brost suggested a proposal that apparently was of no interest to Sorenson.

2. SGD

[182] We review SGD's activities as part of our examination of the relationship between Brost

and Sorenson and to address what certain of the parties knew or ought to have known about the

evolution of the Brost-Sorenson alliance over the years, from their dealings with Brost and

Sorenson in earlier periods.

(a) Formation

[183] A short time after meeting, Brost and Sorenson began discussing a proposed transaction

between an apparently as yet unincorporated entity – eventually SGD – and Merendon. In an

affidavit sworn by Sorenson on 27 November 2009 opposing the appointment of a receiver over

the assets and undertakings of Merendon (the "Sorenson Affidavit"), Sorenson stated that he had

never heard of SGD prior to Brost's approach and had no prior business dealings with SGD. The

evidence before us did not indicate an acknowledgement by Brost of any discussions with

Sorenson regarding SGD; Brost stated that he was not involved in any companies with Sorenson.

In the Brost Interview, Brost said that he knew only that there was a general security agreement

between Merendon and SGD and had no knowledge of whether Sorenson was the controlling

mind, controlling shareholder or even a shareholder of SGD. Brost's statements were false, as

will become evident.

[184] While there are some minor discrepancies in the details given in the evidence, it is clear

that Brost and three associates – Hoffman, Kendall and Houston – had or were developing a

business (soon to be SGD) that would provide long-term financing to developing companies.

They proposed to lend money to Merendon to assist it in developing its assets. Hoffman testified

that:

[When SGD] was first set up, the structure of it was – was very specific. It was to provide capital

to Merendon. Now, where it got that capital, it was supposed to receive capital from individual

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offshore corporations that were being set up by Steve Kendall, Milowe Brost, Chris Houston, but

predominantly Steve and Chris. Now, they were to set these corporations up for Canadians that

wanted to invest funds offshore. So the whole idea this was, they would set up a corporation for

these individuals, get a bank account, transfer their money to the bank account. [A] portion of that

money was supposed to be invested with SGD, and in turn with Merendon. . . .

[185] Sorenson and Merendon were interested in the SGD proposal. Sorenson acknowledged

that Merendon, at the time, was having difficulty raising the capital it required to continue its

business operations as a junior exploration mining company and that the SGD loan money would

provide Merendon with the capital it needed to develop its asset base. Hoffman described the

negotiations in his testimony:

What followed was a number of conversations with Gary Sorenson, myself, Chris Houston, Steve

Kendall, Milowe Brost in negotiating a contract which then would give the ability for a company

that Milowe named, Syndicated Gold Depository, to give Merendon financing to allow them to

buy feedstock for their refinery.

At this point in time, Gary was telling us that Merendon's goal was to go public. So this

was to act as a -- as bridge financing for a period of time until Merendon in fact went public.

Then whatever investment was given him would be paid out, and everybody would go their

separate ways.

[186] Sorenson described SGD's business as "a lending organization or fund manager". He

understood that SGD would receive money from its lenders and SGD would then lend this

money to Merendon. SGD would profit by charging Merendon a higher rate of interest than the

interest rate SGD was to pay to its lenders. These lenders were the offshore international

business corporations ("IBCs") described by Hoffman.

[187] According to Sorenson, the others – at some point during the SGD and Merendon

negotiations – provided Sorenson and Merendon with a proposed form of contract to document

the lending arrangement between SGD and Merendon. Sorenson said he had concerns with

some of the terms of the contract – the rate of interest and SGD's ability to call the loan without

notification to the borrower Merendon. Sorenson's lawyer recommended a unanimous

shareholders' agreement under which Sorenson's holding company would become a shareholder

of SGD. This was to address Sorenson's concern by giving him the right to veto any attempt by

SGD to call the loan to Merendon.

[188] A Shareholders' Agreement dated 23 August 1999 was entered into between 685141

Alberta Ltd. (Sorenson's company), McBee Marketing Corp. (Brost's company), Hoffman,

Kendall and Houston. It appointed Hoffman as president, Kendall as vice-president and

treasurer, and Houston as secretary. The Shareholders' Agreement was signed by Sorenson,

Brost, Hoffman, Kendall and Houston.

[189] There is discrepancy in the evidence as to whether SGD was incorporated at the time

Sorenson was negotiating to become a shareholder of SGD. Hoffman explained that:

On paper [SGD] was created as Steve Kendall, Chris Houston, Milowe Brost and myself. Now,

the company had not been formally incorporated anywhere yet, and as the negotiations toward the

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contract between this unnamed entity at the time and Merendon were going on, Gary asked to be a

full partner in the investment company [SGD].

[190] In any event, the evidence is clear that SGD was a company incorporated under the laws

of the Bahamas sometime in 1999. Hoffman was introduced to the Bahamian law firm that

incorporated SGD by a contact referred to him by Sorenson.

[191] Sorenson said he had been told that SGD was a company domiciled in Nassau, Bahamas

with Hoffman as president, Kendall as vice-president and treasurer, and Houston as secretary; he

was not told what position Brost held, if any. Hoffman acknowledged that he, Brost, Kendall

and Houston had decided that Hoffman would be president of SGD before they approached

Sorenson with the lending proposal for Merendon but that SGD had not yet been incorporated.

At a meeting in Calgary in 1999, Brost, Sorenson, Kendall and Houston confirmed that Hoffman

would be appointed president of SGD, a position Hoffman held from SGD's inception in 1999

through to 31 December 2001. Hoffman also became a director of Merendon.

[192] On incorporation, according to Hoffman, no SGD shares were issued to the five

shareholders; instead, shares were held in trust for them by a Bahamian lawyer and his son who

acted as nominee shareholders, with Hoffman as the sole director. Consistent with Hoffman's

evidence are SGD share certificates issued to the Bahamian lawyer and his son on 3 November

1999 by Hoffman as director and resolutions passed by Hoffman as the sole director of SGD.

Also in evidence is a Corporate Services Agreement between Hoffman and the Bahamian law

firm dated 3 November 1999 containing a provision that Hoffman was beneficially entitled to all

the shares issued by SGD. These documents were found by Blaikie in SGD's records in

Honduras. Consistent with Sorenson's evidence about a unanimous shareholders' agreement,

Hoffman said that there was originally a shareholders' agreement identifying Brost, Kendall,

Houston, Hoffman and Sorenson as SGD's shareholders. In January or February 2000, Kendall's

and Houston's association with SGD ended, leaving Brost, Hoffman and Sorenson as three equal

shareholders of SGD. A document entitled "Shareholders Agreement" – dated 25 January 2000

(found by Blaikie in SGD's records in Honduras) among Brost, Sorenson and Hoffman as the

shareholders of SGD – provided that each of them would utilize a nominee shareholder and a

nominee director to be named by the Bahamian law firm. That document also appointed

Hoffman as president of SGD.

(b) SGD/Merendon Relationship

[193] An agreement in evidence (obtained by Staff from the SEC) entitled "Joint Venture

Agreement" and between Merendon and SGD (the "JV Agreement") bore what it described as a

revised date – 3 January 2002. The JV Agreement stated that it replaced earlier versions signed

by the parties on 17 September 1999, subsequently revised on 29 November 1999, 30 November

1999 and 25 January 2000. Hoffman confirmed that the JV Agreement in evidence was a

revised agreement and that he, Brost, Kendall and Houston negotiated the JV Agreement on

behalf of SGD, while Sorenson negotiated it on behalf of Merendon.

[194] In the JV Agreement, "Merendon" was defined to include all affiliates and subsidiaries of

Merendon. The JV Agreement provided that SGD would provide capital (US dollars) to

Merendon, to be used exclusively for the purchase of unrefined gold, or as deposits towards

metals supply contracts of gold, silver platinum, or supply contracts of complex ore and

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concentrates. These would be processed at the facilities owned by Merendon in Tegucigalpa and

used for the construction and expansion of the Tegucigalpa gold refining facility. In accordance

with the terms of the JV Agreement, Merendon executed a general security agreement in favour

of SGD over the assets of Merendon as security for the money advanced by SGD. Under the JV

Agreement, Merendon agreed to pay SGD interest on the monies advanced to Merendon at the

rate of 4% per month. The JV Agreement also provided that SGD would appoint an individual

as its agent in Honduras and that Merendon was to provide office facilities for SGD's agent at the

Tegucigalpa facility at no cost to SGD.

(c) Hoffman as SGD's President

[195] Hoffman – at the time SGD's president – was appointed SGD's agent under the JV

Agreement and moved to Honduras in 1999 or 2000. For a time, he lived on Sorenson's property

in Honduras; he also worked out of the SGD offices located at the Merendon Honduras

compound. As SGD's agent, Hoffman was responsible for monitoring Merendon's use of the

SGD money provided to it; Hoffman described his responsibility as "keep[ing] track of all

monies that were attributed to" SGD – "funds that Milowe was raising that SGD was responsible

for".

[196] Hoffman described SGD's operations and funding while he was president during the

years 2000 and 2001. Hoffman was in regular contact with both Brost and Sorenson during this

time and was also, as noted, a director of Merendon. In addition to Sorenson, Hoffman dealt

with Wigmore (then Merendon's president) and Jack Wolfe (then Merendon's controller).

Hoffman testified that both Wigmore and Jack Wolfe had a close working relationship with

Sorenson at the time. Brost was the individual responsible for raising money for SGD. He also

provided Hoffman with SGD investor names and assisted in preparing and mailing SGD investor

statements of accounts.

[197] We conclude from the evidence that prospective investors were solicited by Brost and his

sales people to join Capital Alternatives (as of 2003 this morphed into IFFL) as members, the

primary attraction apparently being access to IBCs. The IBCs were corporate vehicles

incorporated offshore by Brost and his associates – they were acquired by investors, then used to

move investor money offshore by lending it to SGD. Hoffman thought that Kendall and Houston

first formed the IBCs in Costa Rica, later using other offshore locales. Investor money (after

deduction of costs paid to Brost and his Capital Alternatives or IFFL sales team) invested in

SGD was in turn invested in Merendon, with the representation to SGD investors that their

investment money was guaranteed by refined or raw gold being kept at Merendon's Honduran

refinery (or by cash). The investor, as the principal of the IBC, entered into a written loan

agreement with SGD, which documented the IBC's investment in SGD. Sorenson described

these as "lender contracts".

[198] In short, Brost was responsible for raising money from investors and that investor money,

after Brost deducted his fees, was ultimately destined for Merendon, which was to pay interest to

SGD on the money loaned to it. Hoffman testified that he believed this activity went on from the

fall of 1999 until 2008. (After 2003, Brost's entity involved was, of course, IFFL rather than

Capital Alternatives.)

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[199] A 29 August 2000 e-mail from Sorenson to Hoffman attached a document entitled

"[SGD] Program", which was a summary of the SGD program. This had been prepared for

prospective SGD investors who had set up IBCs and were being solicited to invest in SGD's

"exciting new US dollar investment opportunity for the offshore investor" (the "SGD 2000

Investor Summary"). This document, which Sorenson had checked and revised, included the

following information:

offered the investor a rate of return of 3% per month;

advised that SGD had entered into a joint venture agreement with a private

Canadian corporation to fund the purchase of raw gold feedstock;

advised that the private Canadian corporation owned a gold processing

refinery in Tegucigalpa that was operated by the Canadian corporation's

wholly-owned subsidiary, Merendon Honduras;

the raw gold purchased with SGD money was refined at the Honduran

refinery under the supervision of SGD's onsite agent, whose sole purpose

was to look after SGD's interests;

at the end of each day SGD's onsite agent and the refinery's representative

audited the plant's production and balanced the day's output of finished

gold, raw gold and cash;

the finished gold was then inventoried for safekeeping until sold, with the

cash used to buy more gold;

excess amounts of raw gold were stored offsite at the bank for safekeeping

until needed;

SGD employed an extensive daily, weekly and monthly auditing

procedure to track the use of funds and gold;

the refinery issued to SGD its appropriate interest from the gross proceeds

of the sale of the gold (verified by SGD's onsite agent). Once SGD

received the funds it was to disburse the net proceeds (net of fees) to the

individual investor's account at the end of each month or, at the investor's

discretion, the funds would remain in the program and compound; and

a summary of the operations of Merendon Honduras and Oro Metales.

[200] Despite similar information and representations appearing in a form of investor and SGD

loan agreement, the evidence is that SGD did not operate in the manner described in the SGD

2000 Investor Summary.

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[201] Hoffman's testimony was that the flow of SGD investor money was structured by

Sorenson and Brost. Hoffman was unaware of any investor money being sent directly to an SGD

bank account, but was aware of investor money being sent indirectly to Merendon. Sorenson

testified that Merendon never received any SGD investor money directly from Capital

Alternatives or, later, IFFL. Rather, SGD investor money was paid to Merendon through a

lawyer's trust account – first Jack Alsten (a Calgary lawyer), then Adair or Werner – or to a trust

account set up in the name of Grovenor or Steller (managed by Kendall and Houston), with the

ultimate destination being Merendon. Hoffman, on behalf of SGD, was then notified by

Merendon personnel that money had been accepted by Merendon on behalf of SGD. That

notification included the amount and sometimes the investor's name. Because the SGD money

was flowing ultimately to Merendon and being accounted for by Merendon Honduras personnel,

Hoffman said it was obvious that Sorenson was also aware of the money coming in.

[202] Hoffman stated that the original intent was for only 10% of SGD investor money to go to

Merendon; however, he understood that almost all of the SGD investor money went to Merendon

after Brost, Kendall and Houston had deducted the money that was to go to them.

[203] Investors received statements of account from SGD showing the principal amount of their

investment and accrued interest – examples of some statements were in evidence. Hoffman,

assisted by Brost and Elizabeth Brost, created many of the SGD statements of accounts for

investors from January 2000 until September or October 2001, when Elizabeth Brost took over

the task.

[204] Hoffman described the SGD statements of account as paper accounts or as an

"accounting function", because no money was held in an individual investor's SGD account, the

money having been sent to Merendon. Hoffman prepared the SGD statements of account from

information he received from Merendon personnel, Kendall, Houston and Brost. Hoffman

would receive a list of investors' names from Kendall, Houston or Brost "that they said belonged

to funds that they had forwarded to Merendon, and I was to attach a dollar amount to each name

and a -- a company name they said that these individuals owned that was -- was required to be on

the statements". Hoffman saw no supporting documentation, such as banking information or

wire transfer information, to support the SGD investors' statements of account.

[205] The money received by Merendon from SGD investors was supposed to be governed by

the terms of the JV Agreement. However, while the JV Agreement required Merendon to pay

SGD interest on the money it received from SGD investors at the rate of 4% per month,

Merendon did not make regular monthly interest or principal payments to SGD. Rather, SGD

would ask Merendon to pay SGD the amount of money that it needed to repay those SGD

investors who wanted to redeem their investment (principal or interest) (investors who were

keeping their funds invested would obviously not generate such requirements) and to cover

SGD's sundry costs in Honduras. SGD had to provide Merendon with 30 days' written notice of

the money it required to meet investor redemption requests. The written request was then

provided to Sorenson who would approve the request and take steps to provide the requested

money to SGD. SGD would then forward the money. Hoffman described the flow of money

between Merendon and SGD as follows:

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. . . whenever there [were] requests made by individuals made via e-mail or coming from Steve,

Chris and/or Milowe on people that wanted some money, then a letter had to be drawn up and . . .

given to [Sorenson] so that he could put aside monies in a Merendon account that then could be

sent to these individuals.

[206] According to Hoffman, during his tenure as SGD's president, SGD had no business

operation of any kind and had not had any operating business since its inception in 1999. SGD's

sole business was to lend SGD investor money to Merendon. Hoffman said that SGD had no

money of its own because Merendon had not been paying SGD the interest money it was

required to pay under the JV Agreement (or as represented in the SGD 2000 Investor Summary).

Because SGD investor money was being paid to Merendon, Hoffman said that SGD was "100

percent reliant . . . on Merendon paying [SGD]" the money it needed to pay investor

redemptions. The money that Merendon paid to SGD was sourced from Brost's fundraising

efforts; if Brost ceased his fundraising activities then SGD investor money would stop flowing to

Merendon and SGD would be unable to retrieve money from Merendon to pay the SGD investor

redemptions.

[207] During Hoffman's tenure as president of SGD, Brost arranged for certain SGD investors

to visit Merendon's facilities in Honduras, visits to which Sorenson agreed. Hoffman said that

Sorenson would meet with SGD investors and confirm to them that SGD was the entity that had

secured their money "with himself, with Merendon Mining Canada and Honduras and Peru and

Ecuador and Venezuela."

[208] Hoffman testified to concerns he had about the activities of Brost and Sorenson that

involved SGD.

[209] Hoffman testified that during his term as SGD president, contrary to Merendon's

reporting obligation under the JV Agreement (as was also expressed in the SGD 2000 Investor

Summary), Hoffman never was given any daily, weekly or monthly reconciliations of SGD

investor money received by Merendon, and "that was one of my problems". He said that there

was no way for SGD to determine what Merendon was doing with the SGD investor money

received (it did not go to or through an SGD bank account) because Sorenson would not allow

anyone from SGD to access Merendon's accounting records. Hoffman did not know whether

SGD's subsequent presidents, Adair or Blaikie, received any reconciliations from Merendon.

[210] Hoffman's concerns with Brost related to Brost's handling of SGD investor money

generally. Hoffman agreed that Brost "was constantly changing the numbers on" Hoffman. In a

9 May 2001 email to Kendall, Hoffman stated "It has become very evident that Milo has been

playing with the money, a lot. I am going to bail him out this time. He is trying to maintain

control of a situation that can't be controlled by him. He has been using this control to play with

the money." Hoffman described the confusion he encountered in trying to account for SGD

investor money when dealing with Brost:

[Brost] would provide notice of funds that were made on deposit to SGD, and then he would say

those funds actually belonged to this client. And then sometimes a month or two later he'd say,

Well, no, actually they belong to that client and -- and give them the start -- he -- he was moving

money around from the account to account. We could never really -- sometimes he would tell us

it would belong to somebody else much later after it had been delivered.

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. . .

. . . There seemed to be a disconnect between the amount of money they were investing and the

amount of money that ended up in SGD, and I didn't understand any of it.

[211] Hoffman had concerns with how Sorenson "was managing the money that Milowe was

providing". In Hoffman's opinion Merendon was not complying with the terms of the JV

Agreement. First, Hoffman stated that he was not given the access he needed to verify that

Merendon had sufficient liquid assets to cover its indebtedness to SGD. Hoffman did not believe

that Merendon (or Sorenson) was using the SGD money as had been intended or had sufficient

assets to repay its indebtedness to SGD (the SGD investor money paid to Merendon Honduras).

Second, the JV Agreement required Merendon to hold the SGD money in cash, gold or raw gold

(gold that had been mined but not refined) that it would then sell. However, that was not

happening because, according to Hoffman, the money was being used to fund Merendon's

mining exploration activities and Sorenson's personal expenses. Hoffman's concern was that

SGD investors should have been told that their money was being invested in a mining

exploration venture – the various Merendon Central and South American mining exploration

ventures – not told that their investments were in liquid assets such as cash or gold. As Hoffman

explained:

The SGD agreement with Merendon was that the money being provided through this arrangement

was to be held in cash, gold, or raw gold; and starting in 1999, Gary Sorenson started spending the

money on infrastructure projects around Merendon Honduras and spending the money personally,

and I started becoming vocal about it. . . .

. . . I had concerns. I voiced those concerns, nobody listened. I continued to voice my concerns.

Milowe all of a sudden started producing huge amounts of money, and nobody was paying any

attention to how it was being used. . . .

. . .

[That money] was coming from people in Canada [and the US]. . . .

[212] Hoffman added:

[The money coming in to Merendon] was supposed to go to Merendon to be -- to provide capital

for feedstock purchase for the refinery, and the requirements of the agreement were it be held as

cash and raw gold and/or finished gold, and that's where -- where I had the problem. I said, if this

is a mining exploration company, then it has to be sold as a mining exploration company, but

when you're saying everybody's investment is guaranteed by a good as -- basically a cash

component, and [Sorenson] said that he has the cash in his personal accounts to cover this

indebtedness . . . .

[213] When asked why he did not, as president of SGD, terminate the contract with Merendon

or resign, Hoffman stated that he was afraid to:

I was the sole officer and director of a corporation that had no assets, no bank accounts, no ability

to do anything. If I had have got on my apple box and started screaming to the general public (a) I

had a fear for my life; and (b) it wouldn't have made a damn bit of difference because Milowe and

Gary were running everything right around me. I was a figurehead.

#4155039v1

[214] Hoffman's tenure as SGD's president ended on 31 December 2001 when he resigned from

that position for alleged health reasons.

[215] Hoffman left Honduras in the spring of 2002 and went to work for Merendon, reviewing

mining and technological projects Sorenson assigned to him. Hoffman left Merendon's employ

in mid-2003. Hoffman had periodic contact with Brost, Sorenson, Kendall and Houston after

2003 as evidenced in the Hoffman Tapes. Hoffman acknowledged that he had no knowledge of

how SGD operated after his departure in 2001, and specifically its operations during the time

relevant to the allegations, other than what was told to him during various conversations – some

of which form the Hoffman Tapes.

(d) Adair as SGD's President

[216] After Hoffman's resignation as president of SGD, Adair, a Florida lawyer, (described by

Hoffman as counsel for Merendon or Sorenson or both at the time) was appointed the president

and sole director of SGD in early 2002. Adair remained president and sole director until January

2004. Adair had been previously associated with Brost, having assisted Brost with some Florida

real estate transactions and having been recruited by Brost in 1995 to serve as the vice-president

of Bellringer during its financial and regulatory crisis, a position he held until 1998. Adair acted

as both SGD's and Merendon's US legal counsel.

[217] Hoffman testified that when Adair was appointed president of SGD by Brost and

Sorenson, Adair was given 10% of the SGD shares. Hoffman and Adair then travelled to the

Bahamas to change the SGD corporate documents to name Adair as its sole director and

president. En route, Hoffman convinced Adair to register the shares in the names of the SGD

shareholders – Adair (10%), Brost (30%), Sorenson (30%) and Hoffman (30%) – because

Hoffman thought that would protect their respective ownership interests. Hoffman said that

"much to my surprise, he put everybody's names as shareholders and filed it. And somehow he

got Gary Sorenson and Milowe Brost to sign their documents registering them as shareholders of

[SGD]".

[218] Hoffman also testified that Sorenson told Hoffman that Sorenson did not want his name

identified on any SGD shareholder document because "he didn't want any legal tie between

himself and [SGD] as a shareholder". Hoffman's testimony was confirmed by an exchange that

took place between Sorenson and Hoffman that was recorded in the Hoffman Tapes on 20 May

2005:

Sorenson Well it would have been even better if you would have put them [in context, the

SGD shares] in the name of your company. Except they are not in the name of

your company they're in your direct Owen Hoffman name. So if anybody was

going to investigate SGD it would take them about a half an hour to determine

that you're a shareholder, I'm a shareholder and Milowe is the shareholder and

Graham [in context, Blaikie] merely holds shares in trust for us. . . .

. . .

Sorenson [Adair] went over to Nassau provided the instructions as sole director and

changed it from the corporation to personally the three people.

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Hoffman I thought you knew that?

Sorenson I don't want my f**king name on that document, nor should you.

Hoffman I didn't agree with it at the time but I thought everybody else was in agreement

with it so I never said anything.

Sorenson Owen, I never knew until Thursday. . . .

. . .

Sorenson Today, right today. Graham holds your certificate, my certificate and Milowe's

certificate specifically in trust for each party. Graham doesn't hold all the shares

in his name as a trustee for the other entities; do you understand what I'm talking

about?

Hoffman M-hmm.

. . .

Hoffman I thought when Larry was the trustee that they were all being held in Larry Adair

LLP as a lawyer as holding all those shares and our names weren't there.

. . .

Sorenson And I thought that what [Adair] had done is transfer that situation to Graham so

that if you did a corporate search you would find Graham as the President, sole

director and officer of the company and the sole shareholder, that's what you

would find. Then moving beyond that there would be a private trust agreement

between Graham, you, me and Milowe where we knew whatever interest

Graham was holding was held for us respectively, do you know what I mean?

Graham doesn't hold anything [inaudible] you know he's basically got the shares

[inaudible] . . . .

[219] Subsequently it appears that the identification of SGD shareholders was resolved to

Sorenson's satisfaction. In a 28 June 2005 exchange with Hoffman (after Blaikie became

president of SGD), Sorenson stated that once the last step was completed "the only shareholder

of [SGD] will be Graham Blaikie [holding] a percentage in trust for Milowe and I". When

Hoffman asked what could change that might affect Hoffman being paid (for his share of SGD),

Sorenson replied: "Only, in my opinion, only if I'm not the owner of 50% of SGD and I've been

assured that I am." Hoffman confirmed that Sorenson still had ownership and control –

"Sorenson had his name on title a very little but controlled -- controlled a lot".

[220] Adair appears to have performed bookkeeping functions for SGD at least from the time

he became its president. In one example, a 21 January 2002 document in evidence showed a

funds request for SGD from Adair to Sorenson and copied to Brost. Further evidence solidifies

our conclusion that Sorenson was aware of and involved in funds being paid from SGD during

Adair's term as president – on 1 August 2003 Adair, as SGD president, asked Sorenson, as chair

and CEO of Merendon, to acknowledge and affirm for disbursement from SGD funds totalling

over $400 000, to be paid out as "monthly interest" and "fund removal" to Capital Alternatives,

Parklane and Voyageur.

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[221] Accordingly, we conclude that Adair was keeping the books for SGD during this time

and that Sorenson was aware of SGD disbursements. We find on the balance of probabilities

that Sorenson was kept informed of – and made decisions regarding – disbursements by SGD on

a regular, perhaps monthly, basis.

[222] Because Adair was not called as a witness by any party, there is very little other

information about SGD during his tenure as president.

(e) Blaikie as SGD's President

(i) Blaikie's Role

[223] Blaikie was appointed SGD president and sole director in January 2004 and remained in

those positions until 31 March 2007 when he resigned as president. This covers the period

relevant to the allegations. Given this timing, Blaikie's testimony regarding Brost, IFFL, SGD,

Merendon and Sorenson is particularly relevant. As mentioned, however, we approached

Blaikie's evidence with some caution due to his still-close association with Sorenson and his

claimed lapses of memory. Blaikie also continued on as SGD's sole director and was its director

during the Merits Hearing.

[224] Blaikie had been asked by Adair, Brost and Sorenson to become the president and

director of SGD because Adair was about to resign from those positions. Blaikie was told that

Adair had to resign as president because SGD, as an offshore company, could not have its

president or any director located in North America, and Brost and Sorenson were looking for

someone they could trust. Blaikie acknowledged that he was not appointed SGD president

because of any special skill set he possessed – his role was to be "simply essentially a name and

a signature" and he just signed what he was told to sign. When Blaikie was first appointed

SGD's president in 2004, he was not physically located at the SGD offices in Honduras but rather

was located in Venezuela as general manager of Merendon Hospitality Venezuela and was

finishing up a project in Venezuela for Sorenson and Merendon.

[225] Blaikie was told that his responsibilities as SGD president would only require him to hold

the SGD shares of Brost, Sorenson and Hoffman in trust, and sign loan agreements on behalf of

SGD. He would not act as a decision-maker or a strategist. Elizabeth Brost would become the

custodial manager of the records, responsible for administrative activities, including managing

and administering all SGD investor redemption requests and preparing SGD investor account

statements. Elizabeth Brost moved to Honduras and carried out her custodial duties from the

SGD offices at the Merendon Honduras compound. While Blaikie was president, Adair referred

to himself as "agent counsel" and was responsible for dealing with the individual SGD lenders in

person. SGD investor money went to Adair's trust account, where it became Merendon's money.

Blaikie said that either Sorenson or Adair told him that this happened because SGD had "paid . . .

off a loan". Adair carried out his SGD responsibilities from Florida. According to Blaikie,

Adair had "knowledge of virtually everybody and who they were".

[226] Blaikie did not report to anyone formally, although he had discussions and received

information from Brost, Sorenson, Adair and Elizabeth Brost. Blaikie acknowledged that

Sorenson and Brost, as the owners of SGD, were the persons with the "higher authority",

#4155039v1

although Sorenson was easier for Blaikie to contact. In keeping with the past practice in which

the SGD president was appointed to the board of directors of Merendon because of the

significant financial obligations created under the JV Agreement, Blaikie was also appointed a

director of Merendon. In October 2004 Blaikie was also appointed budget director of Merendon,

reporting to Sorenson. At the time of the Merits Hearing, Blaikie was still budget director of

Merendon.

[227] Shortly after Blaikie agreed to become SGD's president, Blaikie met with Adair in the

Bahamas at a lawyer's office where a series of documents was executed that resulted in Blaikie

assuming trusteeship of the SGD shares from Adair for the beneficial owners – Brost (30%),

Sorenson (30%), Hoffman (30%) and Adair (10%). Documents in evidence executed by Blaikie

on 4 January 2004 stated that Blaikie was the registered owner of two sets of 15 000 SGD Shares

that he held in trust for the beneficial owners – Sorenson and Hoffman, respectively. Blaikie

said that he executed a similar agreement at approximately the same time for Brost. Blaikie did

not know the reason for the trust arrangement but recalled that he had been told that, if ever

asked, he was to say that he was SGD's sole shareholder. Blaikie said that Adair's SGD shares

were purchased by SGD in 2005 and returned to treasury. At the time of the Merits Hearing,

Blaikie was holding in trust the SGD shares beneficially owned by Brost, Sorenson and

Hoffman.

(ii) SGD/Merendon Interaction

[228] Blaikie said that, while SGD's president, he did not understand exactly how SGD worked,

including the flow and management of SGD investor money. He did understand that SGD's sole

business was to loan money to Merendon, until Merendon was replaced by Eiger as the recipient

of the SGD money (as set out elsewhere in these reasons). Blaikie understood that SGD's

revenue was to come from the interest spread between the interest rate it gave to lenders and the

interest rate it charged to Merendon and Eiger.

[229] Blaikie also knew that Brost was responsible for soliciting at least some of the individual

investors who lent money to SGD. Blaikie appeared to understand that those individual

investors were advised and assisted by Brost (and, as we know, his Capital Alternatives and

IFFL salespeople) in setting up IBCs into which the investors paid their money. The individual

investors were then advised that their IBCs invested in SGD – the individual's IBC would enter

into the lender contract that Blaikie received from Elizabeth Brost and then executed on behalf of

SGD. The IBC's money to be invested in SGD then made its way to Merendon because of the

lending arrangement between SGD and Merendon under the JV Agreement. SGD, in addition to

money received through this route, also received money lent to it from Merendon Nevada,

Quattro, Rapid Express, Parklane, and the Red House Group. Blaikie, on instructions from

Sorenson, signed promissory notes evidencing money lent to SGD by Merendon Nevada,

Quattro and Rapid Express. The promissory note in favour of Merendon Nevada evidenced a

debt of some $110 million owing by SGD. As was the case with the funds from the IBCs,

Blaikie understood that SGD then lent this money to Eiger for its own use, including providing

money to Merendon. Blaikie did not recall any other documentation evidencing loans by SGD to

Eiger of those Merendon Nevada funds.

#4155039v1

[230] Blaikie understood that the money borrowed by Merendon was to be used for Merendon's

future development of its gold refinery operation, as well as acquisitions of mining concessions

and gold from various sources. Blaikie confirmed that Merendon's compound in Honduras had a

vault that he understood to contain gold, although he had never seen or been inside the vault

(access was restricted to Sorenson, Thelma Sorenson and possibly a past production manager).

[231] Blaikie said that SGD was responsible for administering the SGD investors' loans to

Merendon; Elizabeth Brost initially had primary responsibility for SGD operations. She and her

two staff members in Honduras prepared all SGD investor account statements with information

that came from Brost, Adair and Regier. Blaikie did not know what that information entailed.

Blaikie said he had little to do with SGD operating activities other than to sign lender contracts

provided to him by Elizabeth Brost. Elizabeth Brost's administration of SGD operations from

Honduras continued until approximately March 2005 when SGD investor account statements

were transferred to a new accounting system set up by Casey Brost and administered by his

company Fortris out of Belize. In late 2005 or early 2006 SGD records were shipped to the

Fortris offices in Belize. Blaikie said that Brost's former assistant, Forrest, was working for

Casey Brost and Fortris in Belize.

[232] While SGD's president, Blaikie never received any reconciliations or other accounting of

SGD money received and disbursed to Merendon. Blaikie knew that SGD investor money

somehow arrived in Adair's trust account and that Adair "managed trust accounts, and that these

funds were designated in some way, SGD or Merendon; or whether it was -- they were funds that

came from SGD or whether they were SGD funds, I -- I really don't understand or understand

that. I could never understand how that happened". Blaikie understood that SGD money got

paid to Adair because SGD never had a bank account in its own name. Blaikie thought that SGD

investors received their money back by making a redemption request that made its way to

Elizabeth Brost, Adair or Regier, who then requested the money from Merendon or, later, from

Eiger. Blaikie understood that Sorenson provided Adair with "orders" for the disbursement of

money to SGD and that Merendon would pay the redemption money to SGD, which would then

forward the money on to the individual SGD investor.

[233] One of the Hoffman Tape excerpts indicated that, at least as of 24 March 2005, Sorenson

had considerable influence – if not control – over the operation of SGD. It further indicated that

Blaikie was more involved than he had acknowledged during his testimony (giving us another

reason to treat his testimony with caution). In this excerpt Sorenson described to Hoffman the

SGD operations under Blaikie with the assistance of Elizabeth Brost at the SGD offices in

Merendon's Honduras compound:

. . . Graham [Blaikie]'s the President of SGD you know. The -- the accounts and their -- their

communication with the clients has improved probably 60% since Elizabeth took over the actual

day to day management of them and Graham became the President because everyday, every

morning he goes over there, sits down with her, they go through the problems of the morning, the

problems of the day and whatever and if he's unsure of what to do he just picks up the phone[,]

talks to me, I tell him what I think he should do, [he] passes the information onto Elizabeth and it's

done. She doesn't even talk to Milowe.

[234] According to Blaikie, Adair had kept records detailing the SGD investors, the amounts of

money they had lent to SGD and redemption requests. Adair provided daily account

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reconciliation reports to Sorenson showing receipt and disbursement of SGD money in Adair's

trust account. In evidence was a daily report for 3 July 2006 (the "Adair 3 July 2006 Account")

that Adair had sent to Sorenson's personal secretary in Honduras. Blaikie and Sorenson

confirmed that this was one of the daily SGD reports sent directly to Sorenson. Blaikie stated

that Sorenson would have instructed all of the disbursements. The Adair 3 July 2006 Account

shows money being deposited in Adair's trust account from a number of entities, named there as

including Merendon Colorado, True North, SGD, Tena Capital (Sorenson claimed that should

have been Heritage Financial), Red House Developments and Frontera. Blaikie did not know of

any lending arrangement between True North and SGD and saw no documentation in SGD's

records to that effect. He believed that SGD loan money was first received by True North and

then advanced on to Merendon and Eiger. The Adair 3 July 2006 Account shows money being

paid to, among others, Sorenson, Thelma Sorenson, Sorenson's daughter, Merendon, Arbour

(apparently interest on the loan of $10 million from Arbour to Merendon), Stone Mountain,

Adair and Ken Sorensen. The closing balance of the Adair 3 July 2006 Account on that date was

$1.36 million.

[235] Adair also prepared an annual statement or account reconciliation that set out the opening

balance owing to SGD, the amount of money lent by SGD to Merendon throughout the year,

accrued interest and the closing balance of the money owed to SGD by Merendon.

[236] As during Hoffman's tenure as SGD president, SGD investors traveled to Honduras to

tour the Merendon compound.

[237] Blaikie said that the last SGD lender contract he signed that came to him through any of

Brost's organization was in the fall of 2004. Brost told Blaikie that he had stopped promoting

SGD to investors in October 2004, so no more SGD contracts would be coming to Blaikie.

Around this time Elizabeth Brost told Blaikie that she had little to do for SGD because

"everything was being done out of Calgary". In late 2006 Elizabeth Brost ceased working for

SGD and her remaining job responsibilities were assumed by Casey Brost who was then

operating out of Belize.

[238] A 13 October 2005 excerpt from the Hoffman Tapes was a conversation between

Sorenson and Hoffman that began with what appeared to be a discussion of Brost's health

problems. Sorenson commented on Brost's problems with the Commission at that time, stating:

"[H]ow do I say this, because I want to be supportive, until this last go around with the

[Commission] I had no f**king idea". Merendon and Sorenson emphasized that Hoffman could

have disagreed with Sorenson about whether Sorenson had any previous knowledge of the

Commission-related issues. In that Hoffman Tape excerpt, Sorenson then seemed to suggest that

Hoffman offer to help Brost out until he recuperated. During the conversation, Sorenson stated:

. . . In the last year and a half [that would be approximately April 2004 to October 2005] the

organization has grown exponentially we [have] raised a s**tload of money. We probably have

seen here at Merendon 48% of it. The marketing division itself has probably consumed about

10% of it just for advertising, operational, administration, whatever. Probably somewhere in the

order of 40% has just gone into Milowe's projects . . . .

. . .

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. . . You know, the marketing organization, SGD or its affiliates or whatever, provided capital

which allowed me to accelerate the growth of this corporation and build a very good company. . . .

[239] We find that SGD was sending money to Merendon throughout this period and that

Sorenson was clearly well aware of the source of those funds flowing to Merendon. Sorenson's

discussion of Brost's health and business plans during Brost's recuperation also supports, in our

view, a close relationship between Brost and Sorenson.

[240] In late 2005 an "Amended and Restated Loan Agreement and Assignment" with an

effective date of 2 February 2002 was entered into by Merendon, SGD and Eiger (the "2005

SGD/Merendon/Eiger Loan Agreement"). Under the 2005 SGD/Merendon/Eiger Loan

Agreement, Merendon assigned to Eiger, Eiger accepted the assignment and SGD consented to

the assignment of the JV Agreement and all of Merendon's rights and obligations under it. Other

pertinent information included:

the establishment by SGD of a demand credit facility ("Facility") for Eiger;

the Facility was to be used by Eiger "for investment purposes with respect to the

exploration and mining sector or any other use approved by" SGD;

Eiger was to pay interest at "a nominal rate per annum equal to the [agreed

interest rate] in effect from time to time"; and

Eiger provided as security for the money advanced all of its shares in Merendon.

[241] As at 31 December 2006, $76 604 095.32 was the unpaid principal balance owing to

SGD by Eiger. In 2005 Eiger repaid SGD principal of $2 811 514.55 by paying $172 314.09 to

Flintex Business and $2 639 200.46 to True North.

[242] Although Blaikie was SGD's president at the time, the 2005 SGD/Merendon/Eiger Loan

Agreement was negotiated by Adair on behalf of SGD and by Sorenson on behalf of Merendon

and Eiger. Blaikie explained that although he was aware of the 2005 SGD/Merendon/Eiger Loan

Agreement, he was not involved in its negotiation, and did not know why the agreement was

being negotiated or entered into. Moreover, no one reported to him on the negotiations. The

2005 SGD/Merendon/Eiger Loan Agreement was executed by Adair as president of SGD, by

Wigmore as the president of Merendon and by Sorenson as president of Eiger. Blaikie –

president of SGD when the 2005 SGD/Merendon/Eiger Loan Agreement was signed – said that

he had no difficulty with Adair and Sorenson negotiating and executing the agreement because

"[i]t was their company. So I assumed they were fine". Sorenson testified that Blakey –

Merendon's counsel at the time – suggested Adair and Wigmore sign for SGD and Merendon,

respectively, because they were the presidents of those entities, respectively, at the agreement's

effective date of 2 February 2002.

[243] While Blaikie was SGD's president, neither Merendon nor Eiger paid SGD interest on the

loan as it was simply "calculated" but not paid. Blaikie left that up to the two owners, Brost and

Sorenson. Blaikie was unaware of any formal financial statements prepared for SGD, only the

informal financial reporting prepared by Adair during his tenure as SGD president. During

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Blaikie's term, no financial reporting was done other than the account reconciliation reports

provided to Sorenson by Adair, such as the Adair 3 July 2006 Account.

(iii) Due Diligence Reports

[244] At some point, Brost proposed to Blaikie that due diligence reports be prepared on

Merendon for SGD; Blaikie agreed. Brost advised Blaikie that on behalf of SGD he had hired

three lawyers – Blakey, Burgess and Werner – to conduct due diligence on Merendon and its

various subsidiaries and joint venture projects and to prepare a report on their findings for SGD.

Blaikie had previously met Blakey at a Brost-hosted conference but had never met the other two

individuals prior to the SGD engagement. The three individuals, described by Burgess as the

"Due Diligence Team", together toured Merendon's various properties and facilities in Honduras,

Venezuela, Ecuador, Peru, Calgary and Medicine Hat, Alberta between 28 February and 17

March 2005 and met with various Merendon staff members. Brost, Sorenson (identified by

Burgess as "President of each of Merendon's Latin American mining subsidiaries and Eiger")

and Blaikie (identified by Burgess as "President of SGD") accompanied the three lawyers on the

tour. The purpose of each of their engagements was the same – to review Merendon's operations

to confirm that Merendon was a legitimate business and that the value of Eiger's interest in

Merendon was sufficient to secure repayment of the SGD loan. Each lawyer prepared a report

setting out his conclusions: Blakey in a report dated August 2005 (the "Blakey DD Report");

Burgess in the Burgess DD Report (a letter dated 5 December 2005); and Werner in the Werner

DD Report (dated 14 December 2005) (together, the Blakey DD Report, Burgess DD Report and

Werner DD Report are the "DD Reports").

[245] In the Burgess DD Report, Burgess stated, as background information, that he

understood "that [SGD], a Bahamian company, has loaned funds [to Eiger], a Bahamian

company, . . . secured by a general security agreement, a series of promissory notes and a pledge

of Eiger's interest in Merendon". The Burgess DD Report stated the amount of the SGD loan

then outstanding as $160 million and the value of Merendon's assets as $1.135 billion (over $1

billion was categorized as "Recoverable reserves"). The Werner DD Report stated the amount of

the SGD loan outstanding as of March 2005 was approximately $200 million, and the value of

gold in Merendon's concessions as of December 2005 exceeded $1 billion. The DD Reports

stated variously that the information in the reports was provided by Merendon employees, no

audit was conducted, and no third party verification of the facts had been undertaken.

[246] The risk factors set out in the Burgess DD Report tell something of the nature of

Merendon's (and its subsidiaries') operations. These included:

2. Commodity Prices – The vast majority of Merendon's value relates to the exploration,

development and production of gold. . . .

3. Engineering Risk – A significant proporation [sic] of the value of Merendon's assets

relate to unmined gold bearing ore. [If] the reserves prove to be less prolific, or the cost

of extraction is significantly higher, the economic viability of such assets would be

negatively impacted.

4. Ongoing Capital Requirements – Again, as the vast majority of Merendon's value is

represented by unmined gold bearing ore. [sic] There are significant amounts of capital

required by Merendon in order to convert such ore to refined gold. . . .

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. . .

6. Cash Flow Requirements – In addition to Merendon's monthly operating requirements,

there are significant additional requirements to satisfy monthly interest payments to SGD,

as well as periodic redemptions of SGD's [loans]. The result is a significant monthly

cash commitment at a time when the majority of Merendon's assets are in the

development rather than production phase. The opinion expressed above assumes that

Merendon will be able to continue to meet its monthly cash commitments while at the

same time funding its development, expansion and production plans at its various sites in

Latin America.

7. Liquidity of Collateral – The vast majority of Merendon's value is represented by

unmined gold reserves. While the [loan] documents specifically provide for an orderly

payout of the [loans] over 42 months, there is a significant risk that if the [loans] were

called, Merendon may be constrained from fully exploiting the value of its assets due to a

lack of capital or insufficient time. . . .

[247] We did not attach any weight to the DD Reports as providing any verification of the

value of Merendon's assets in 2005. In so deciding, we considered that Blakey, Burgess and

Werner did not have any relevant experience in business evaluation, mining or offshore mining

valuations. We also had some concerns as to the independence of Blakey and Werner. Most

significant, the DD Reports themselves were all qualified; the most significant qualification was

that their conclusions, in essence, were only as good as the information provided by Merendon

staff.

(f) Werner as SGD's President

[248] In March 2007 Werner was appointed to president of SGD, a position we understand he

held during the Merits Hearing. According to Blaikie, the decision to appoint Werner SGD

president was made jointly by Brost and Sorenson, although Werner apparently had some history

of providing legal services to Brost. Blaikie continued on as a director of SGD after Werner's

appointment as its president and to the time of the Merits Hearing.

[249] According to Blaikie, Werner suggested changing SGD's name because of the bad

publicity that had begun to cloud SGD. SGD's name was subsequently changed to Bahama

Resource Alliance.

[250] Werner did not appear as a witness and testify at the Merits Hearing. Therefore, there is

little evidence regarding SGD during his tenure as president.

(g) Conclusions on SGD

[251] In a Hoffman Tape, Brost referred to the formation of SGD, stating "I spear-headed it but

we all pulled SGD together it wasn't just me it happened because of all of us myself, [Hoffman],

Gary and Steve and Chris alike".

[252] Hoffman testified that he believed Brost and Sorenson were, in 2004 to 2006, the

"insiders" who were the only ones who knew what was really going on with SGD and

"everything that was going on". Hoffman believed that Sorenson controlled SGD, but also stated

that, if asked, Brost would say Brost did and Sorenson would say Sorenson did.

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[253] Regier testified that Brost operated or controlled SGD. Regier also recalled Brost

"indicat[ing] on a couple of occasions that he would have discussions about SGD with

[Sorenson], but at the end of the day it -- the real appearance was [Brost] operated SGD".

[254] Blaikie – SGD's president during the period at issue here – acknowledged that he was

president in name only. He had been appointed as someone Brost and Sorenson could trust not

to call the SGD loan to Merendon and, later, to Eiger. Blaikie was not responsible for running

SGD's operations, nor did he even fully understand those operations – such as where it got its

money from, how much money SGD received, and the disbursement of SGD money. His only

responsibility was to sign SGD investor contracts as president of SGD. SGD's day-to-day

administration was carried out primarily by Elizabeth Brost with assistance from staff in

Honduras – although we do conclude that Blaikie was somewhat more involved in the day-to-

day operations than he admitted to us; he knew enough to go to Sorenson for directions.

Elizabeth Brost received SGD investor information from Brost, Adair and Regier. We are

satisfied that she took her instructions from Brost. Sorenson was not involved with SGD's day-

to-day administrative activities (except answering Blaikie's queries), but he and Merendon

received the SGD investor money and Sorenson approved any repayment of that money by

Merendon to SGD. Blaikie reported to Sorenson and received from Sorenson instructions as to

how Blaikie was to carry out his role as SGD's president.

[255] We find that Blaikie (although he knew more about SGD's activities than he

acknowledged) was a mere administrator and figurehead. We reach the same conclusion for

SGD's other presidents – Hoffman, Adair and Werner. We find, from the totality of the

evidence, that SGD's real decision-making rested jointly with Brost and Sorenson.

3. Stone Mountain

[256] Stone Mountain owned mineral concessions along the Tulameen River in British

Columbia. Merendon acquired the property in approximately 2003 for $1 million after Sorenson

was introduced to it by Monkman. After the Stone Mountain acquisition, Sorenson was

president for a short time before Wigmore was appointed president. Strashok was a director of

Stone Mountain.

[257] In January 2005 Merendon sold all of its interest in Stone Mountain to Strategic for a

purchase price of $9.6 million. Strategic's directors at the time were known Brost associates –

Forrest, Regier and Weeks.

4. Magna North

[258] Monkman introduced Sorenson to Magna North, which owned gold concessions in the

Yukon and was purportedly in the business of producing gold from placer mining operations.

Merendon acquired a 60% interest in Magna North. The Burgess DD Report valued that interest

at $16.5 million, although there was no evidence as to the purchase price paid by Merendon.

[259] At one point, Strategic (as noted, a Brost-connected entity) proposed to acquire Magna

North from Merendon and its partners for approximately $29 million. It appears that the

acquisition was never completed.

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[260] The evidence indicated that, in 2007, the board of directors of Merendon decided to

liquidate Merendon's holdings in Magna North because "it appears in the best interest of

[Merendon] to . . . focus on maximum recovery of [Merendon's] investment in Magna North".

5. International Business Group ("IBG")

(a) General

[261] The existence and purpose of IBG were in dispute, as were the minutes in evidence of

two of its meetings. Based on the facts in evidence and for the reasons set out below, we

conclude that IBG did exist – perhaps not as a formal corporate entity but certainly as an

organized group led by Brost and Sorenson. Its purpose, we find, was to control and keep track

of the multitude of entities in which Brost and Sorenson were involved – the Brost/Sorenson

Entities.

[262] Regier described IBG as "a group of individuals that, to a certain degree, were hand-

picked either by [Sorenson] or by [Brost]. And they were chosen, if you will, to bring forward

and try and resolve some of the issues that were there from a big-picture perspective."

[263] Blaikie said that he had never heard of IBG until he was asked by Brost and Casey Brost

to attend, as SGD's president, an IBG meeting in February 2007. Blaikie was told that the IBG

meeting was convened in an attempt to get a group together to gain some control over Brost and

the flow of money. Specifically, the hope was that Sorenson, given his history and relationship

with Brost, would be able to get Brost to stop spending his own money. Blaikie testified that

IBG was "just a name" for that group, as coined by Casey Brost, Regier and possibly others.

[264] Sorenson said that there was no such organization as IBG; it was a "figment of [Brost's]

imagination".

[265] What was not disputed was that a meeting was held in Tegucigalpa at the Merendon

compound from 8 to 11 February 2007 (the "February IBG Meeting") at which Brost, Sorenson,

Blaikie, Regier, Casey Brost, Werner and Capstick – the "IBG Advisory Committee" – were in

attendance. A second IBG Advisory Committee meeting held in Calgary on 7 to 8 and 12 to 13

March 2007 (the "March IBG Meeting") was attended by Brost, Sorenson, Casey Brost, Regier,

Blaikie and Capstick, although Sorenson was absent for 7 and 8 March and Blaikie was absent

for 7 March.

(b) February IBG Meeting

[266] Blaikie described the February IBG Meeting as being "almost like a confession" and

"very eye opening", where a great deal was revealed about different companies, funds being

disbursed here and there, and Brost's activities. Blaikie said that even though there were a

number of companies being discussed that he had no involvement with, he and Sorenson stayed

because they felt they needed to find out more information about what had being going on.

Blaikie explained that he and Sorenson came to realize that the purpose of the February IBG

Meeting was that the Brost group wanted SGD to absorb all of the companies they were

discussing and, ultimately, for SGD – therefore, Eiger and Merendon – to assume those

liabilities.

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[267] In evidence were minutes from the February IBG Meeting (the "February IBG Minutes")

which identified the meeting as IBG's "Advisory Committee Initial Regular Meeting". Werner

was the chairperson and secretary of the February IBG Meeting; as secretary, he prepared the

February IBG Minutes. Blaikie said that Werner had been so chosen because he was a "neutral

body".

[268] Regier confirmed his attendance at the February IBG Meeting and that the February IBG

Minutes as a whole fairly represented the discussions at that meeting. Blaikie confirmed his

attendance at the meeting but could not confirm whether the February IBG Minutes accurately

depicted what had occurred because he claimed to have "pretty much tuned out . . . during the

majority of this meeting because it was so far beyond me, in my knowledge and understanding".

The February IBG Minutes indicate that of the many motions made and seconded, all of those

which identified individuals were made by either Brost or Sorenson (with the exception of one

made by Casey Brost) and were seconded by one of them or Werner.

[269] Sorenson disputed the accuracy of the February IBG Minutes, stating that they did not

reflect how the meeting progressed. He also disputed making most of the motions and seconds

attributed to him and stated that he "wasn't prepared to participate in something that doesn't

exist". Blaikie, although he said he had "tuned out" for most of the discussions, did recall some

motions being made but not who made or seconded the motions. Specifically concerning

Sorenson's making of motions, Blaikie testified: "I could hear motions were being made; but

whether or not it was Gary, I don't know." Blaikie later told us that, while he could not recall,

Sorenson "may have" made the motion that Brost was to receive a commission "in the amount of

2.5% per each dollar of gross receipts raised by the Company", of which Brost was to receive a

monthly draw of $150 000 subject to adjustment once the actual funds were raised. The

February IBG Minutes stated that Sorenson "abstained" from voting on his own commission

structure; many other motions were noted as having been "unanimously adopted".

[270] We considered the above factors, coupled with the testimony that the February IBG

Minutes were prepared by a "neutral" party, Werner. We also considered the lack of evidence

(apart from Sorenson's) suggesting the minutes were false or inaccurate. On those bases, we

reject Sorenson's evidence on this point and conclude that the February IBG Minutes are at least

mostly accurate, including their representations that Sorenson participated in most of the IBG

discussions and votes.

[271] The February IBG Minutes were noted in a covering e-mail from [email protected]

(Blaikie identified this as coming from Werner) to be draft minutes "for review and comment".

They were sent to [email protected] (Blaikie identified this as Brost's email address), with

copies to [email protected] (Regier identified this as an email address he was using at the

time), [email protected] (Blaikie identified this as an email address he was using at the

time), and [email protected] (Sorenson acknowledged using this email address on rare

occasions in the past). Blaikie recalled receiving the February IBG Minutes by email and

reviewing them. Sorenson claimed not to have received the February IBG Minutes by email; he

received them from Blaikie.

[272] The February IBG Minutes discussed many matters; we highlight the relevant ones.

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[273] The February IBG Minutes set out the mission statement of the IBG Advisory Committee

as follows:

Be it resolved that the Mission Statement of the [IBG] Advisory Committee is that the nature,

extent and scope of the [IBG] Advisory Committee is to advise IBG on all of its business affairs

including but not limited to: general and special business issues and concerns, auditing and

budgetary issues and concerns and legal issues and concerns. That such advice shall be based on a

complete disclosure by IBG to the [IBG] Advisory Committee of all relevant issues pertaining

thereto.

[274] The February IBG Minutes described IBG as "a consortium of companies having

common goals and diverse jurisdictions" and spoke of an accord being prepared to allow the

separate companies of IBG to act together. Subsequently, Blaikie saw two different drafts of an

accord agreement but did not know if one was ever finalized.

[275] Under the heading "Consignments" there was a statement that "the company has 150

Structurists" and that "monthly redemptions are growing in dollar amounts". While there was no

direct evidence on this point, we find it reasonable to infer that "structurists" were IFFL

structurists (given the unusual nomenclature) and that "monthly redemptions" referred to a return

of funds on investments made by investors that invested through IFFL and its structurists.

[276] The February IBG Minutes also discussed various legal issues then facing Merendon

Nevada, Brost, IFFL, True North, Strategic, Stone Mountain, Arbour and others. Although the

particular legal issues of the non-Arbour entities are not relevant here, we find it significant that

Merendon Nevada, IFFL, True North, Strategic, Stone Mountain and Arbour were referred to

under the discussion of legal issues facing IBG companies. Of particular significance was the

discussion of the "legal issues affecting Arbour Energy Inc[.]", which was as follows:

DISCUSSION: The trading in the public stock of Arbour Energy Inc[.], a public company on a

Canadian Stock Exchange, has been halted supposedly due to Arbour not filing a timely Offering

Memorandum and having an "Associated Company" Loan Receivable Asset on its financial

statements that needed to be evaluated. Arbour has lent funds to Merendon Mining and carried a

Loan Receivable Asset on Arbour's financial statements in the amount of $42,000,000. There was

an issue of valuation of the Asset due to there being an alleged "Associated Company" issue which

issue has been subsequently resolved by the [Commissions] with respect to Arbour Energy and as

such no evaluation of the Loan Receivable is required as per agreement with the Canadian

Governmental Auditor.

There is an outstanding unexecuted contract between Arbour and the TRL Technology (a tar sands

oil recovery technology). Arbour has not signed the contract for the TRL Technology. Merendon

Mining is receiving purchase offers for the TRL Technology. The president of Arbour, Dennis

Morice, is not moving forward, at the present time, with the purchase contract for the TRL

Technology.

Arbour needs to begin trading its stock and needs to finalize the purchase contract for the TRL

Technology. A new President of Arbour needs to be appointed to fight the [Commission] to

resume the trading of Arbour stock and needs to either finalize the TRL contract or have

Merendon Mining establish a joint venture with another energy company . . . to utilize the TRL

Technology.

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Should Arbour finalize [the] contract for TRL Technology then 3Sixty Company will have to fund

the Arbour. [sic] Should 3Sixty Company fund Arbour then 3Sixty Company will increase its

royalty percentage from 8-12% to upwards to 22% net royalty for funding in the amount of two

million dollars. Arbour would then be paying royalties in the amount of 30% to Correl [sic] and

22% to 3Sixty.

MOTION AND RESOLUTION: The following motion was offered by Milo Brost, seconded by

Martin Werner, which upon motion duly made and seconded, was unanimously adopted: Be it

resolved that either the President of Arbour finalizes the TRL contract and begins to make efforts

to cause Arbour's stock to freely trade on the Canadian Stock Exchange or a new president will be

chosen for Arbour who will then proceed accordingly. Martin Werner will investigate, interface

with all legal personnel and other required personnel and report back to the [IBG] Advisory

Committee with recommendations. [Emphasis added.]

[277] Blaikie said that the Arbour issues were raised and discussed by Brost, Capstick and

Regier, none of whom, we note, was an employee, officer or director of Arbour. No directors or

officers of Arbour or TRL were at the February IBG Meeting. Although Merendon was also

being discussed as the recipient of money loaned by Arbour, the "Associated Company" and one

of the owners of the TRL technology, Blaikie claimed that he and Sorenson – the only Merendon

representatives present – did not participate in the discussions. According to Blaikie, Sorenson

chose to leave the discussion and go sit at his desk, several feet away – ". . . as soon as that issue

or point was brought up to discuss, you know, Gary just looks across the table and said, Why

the F are we talking about Arbour? And then got up and walked away."

[278] Blaikie did not believe that Sorenson returned to the table for any part of the Arbour

discussion, which Blaikie had "tuned out". Sorenson also claimed to have left the table and

walked to his desk during part of the meeting. He testified that he was upset when the topic of

Arbour was raised, and he had had no proof that Brost had maintained involvement with Arbour.

We rejected both Blaikie's and Sorenson's evidence on this point.

[279] We note the February IBG Minutes' resolution (quoted above) by the IBG Advisory

Group in early February 2007 for "a new president [to] be chosen for Arbour" unless Arbour's

president, Morice, "finalizes the TRL contract". As set out later in these reasons, Arbour

completed its acquisition of Merendon's 25% shareholding in TRL on 20 March 2007. We

conclude that finalization very soon after the February IBG Meeting was not coincidental – we

find that Morice was told to finalize the TRL transaction – likely by Brost, who was also based

in Calgary and had the greater connection to Morice. Morice then did as instructed and finalized

the TRL transaction without, we find, taking the commercially reasonable step of completing the

TRL valuation.

[280] The February IBG Minutes also discussed Arbour under the issue "Whether to develop

Bengal Oil project" as follows:

DISCUSSION: Bengal Oil is owned by Perma Securities, partnering with Ken Nazar, owner

Quad Energy. Milo Brost set Dwayne [Martyn] as director to set up Bengal [O]il. This was for

either Arbour energy [sic] to buy, or use Bengal to buy Arbour. Arbour has funded primarily, also

Milo Brost and others personally.

. . .

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MOTION AND RESOLUTION: The following motion was offered by Gary Sorenson. seconded

by Milo Brost . . . Be it resolved that . . . Ken Nazar is to prepare an executive summary of the

projects for Gary Sorenson and Milo Brost to review . . . Milo Brost will manage this project.

[281] It appears that Brost was recruiting Martyn (an IFFL structurist) to act as a director of

Bengal Oil and Gas ("Bengal"), which was then to get involved in a transaction with Arbour –

apparently the Malaysian transaction referred to in the third of Arbour's offering memoranda.

[282] The February IBG Minutes discussed whether to arrange a 2008 marketing conference

for IFFL members and recorded that Sorenson made the motion to have Casey Brost look after

the matter. Blaikie confirmed that a marketing conference was held in the Bahamas in 2008.

The minutes also discussed SGD redemptions and that Blaikie was to investigate and clarify the

current legal and shareholder status of SGD. Blaikie said he did investigate but could not get any

answer and, therefore, provided no such clarification.

[283] The February IBG Minutes discussed Elizabeth Brost – Sorenson was to manage all

future contacts with her, and Blaikie was to prepare a letter to her. Blaikie confirmed that

Sorenson subsequently dealt with Elizabeth Brost and that Blaikie prepared the required letter.

(c) March IBG Meeting

[284] In evidence are minutes from the March IBG Meeting (the "March IBG Minutes"). The

March IBG Minutes were circulated by email on 21 March 2007 from [email protected]

(Werner) to [email protected] (Brost), [email protected] (Sorenson) and

[email protected] (Blaikie identified this as Capstick's email address), and copied to

[email protected] (presumably Casey Brost), [email protected] (Regier) and

[email protected] (Blaikie). Werner is noted as the Chairman, presiding member, and

secretary for the March IBG Meeting, which was "for the purpose of advising IBG concerning

the businesses of IBG". Regier confirmed that the March IBG Minutes also fairly represented

the discussions during the March IBG Meeting. Regier agreed that Sorenson was not at all of the

March IBG meeting, so may not have had an opportunity to approve the February IBG Minutes.

Blaikie believed that he had read the February IBG Minutes by the time of the March IBG

Meeting. Sorenson said that he did not receive the email with the attached March IBG Minutes,

so had not seen these until they were shown to him by his counsel in preparation for the Merits

Hearing.

[285] As for the February IBG Minutes, we considered the evidence surrounding the March

IBG Meeting and the March IBG Minutes. We also considered the fact that the March IBG

Minutes were again prepared by a "neutral" party, Werner and the lack of evidence (apart from

Sorenson's) suggesting the March IBG Minutes were false or inaccurate. On those bases, we

reject Sorenson's evidence on this point and conclude that the March IBG Minutes are at least

mostly accurate, including their representations that Sorenson participated in most of the IBG

discussions and votes on the days he attended.

[286] The March IBG Minutes noted the ratification and acceptance of the February IBG

Minutes, except in two areas. First, there were comments that SGD should receive 85% of funds

raised, with 15% used by "marketing" for "admin expenses" and Eiger "collateraliz[ing] the

85%". Second, the compensation of 1.5% to Sorenson and .4% to Blaikie approved in the

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February IBG Minutes was discussed, with the comment that "Sorenson and Blaikie do not

require or want said payments and do not require or want to be considered junior partners. That

of the 15% reserved or paid to admin expenses, all other projects outside of SGD proper would

be funded by this 15% amount and that SGD would not have any involvement in other projects."

The March IBG Minutes recorded only a blank line instead of a motion and resolution for both

the above issues. Blaikie confirmed that discussion. The March IBG Minutes reflected the

appointment of Casey Brost as Managing Director of IBG (and his consequent removal as an

IBG Advisory Committee member). The list of IBG companies in the March IBG Minutes did

not include Arbour; the list was not verified through a motion and resolution. Blaikie indicated

that he had nothing to do with a number of those entities purportedly managed by him, such as

Alluvial, Base Metals, Onyx Trading, Tena Capital Corporation and 3Sixty.

6. Descriptions of the Brost and Sorenson Relationship

[287] Sorenson described himself and Brost as "business acquaintances" with "an arm's length

business relationship"; Sorenson claimed they were "not close friends". According to Sorenson,

he and Brost only saw each other a few times a year at meetings or when Brost brought SGD

lenders to Honduras for tours, and they only talked on the telephone occasionally.

[288] Hoffman testified that Brost and Sorenson were "the only two that knew everything that

was going on" in the 2004 to 2006 period. Hoffman acknowledged Brost was raising money

that, in part, was to go to Merendon, but that eventually nobody knew how much Brost was

raising and there appeared to be bottlenecks of money at Brost's end. Hoffman observed them

during that period to be "[v]ery much partners and friends", defending each other until the end of

that period when Sorenson begin making "disparaging comments about" Brost. Hoffman

acknowledged that there was a type of falling-out between Brost and Sorenson, but was unsure

precisely when it happened.

[289] Morice summarized his interactions with an observations of Brost and Sorenson during

the Morice Interview:

A Well, my dealings were with Milowe, not Gary, and normally my discussions would be

with Milowe, Milowe would go talk to Gary, and then when things didn't happen, who

decided what, I'm not sure but . . .

Q Was it your understanding that Milowe was making the decisions, or Gary was making

the decisions, or it was a combination of both of them?

A I thought it was a combination of both of them. Certainly Milowe had tremendous

confidence in Gary, and otherwise, you know, I've always liked Milowe, and, you know,

I've always had problems with Gary, so I was trusting Milowe's judgment there, the

outcome still to be seen.

[290] Regier met Sorenson through Brost at an IFFL structurists' conference. At the time,

Regier understood Sorenson to be president, CEO (or both) of Merendon. Regier considered

Brost and Sorenson to be "50/50 partners" and referred to times in which Brost and Sorenson

would be seated at each end of Merendon's boardroom table in Calgary "and [Sorenson] would

look at [Brost] and say, 'That is my partner. We are equal partners in this.'" Regier understood

"this" to be "from a very large big-picture perspective, so it would have been things like SGD,

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Merendon Canada, just the -- the big picture." Brost told Regier that he sat in on some

Merendon board meetings as a visitor. Regier agreed with the statements that Morice "was

basically the minion doing the bidding of Brost and Sorenson" and that "basically Brost and

Sorenson ran Arbour". During cross-examination, Regier changed his statement, agreeing with

counsel that it "would be fair" to say that Brost and Morice ran Arbour and that Sorenson did

not. Further, Regier agreed with counsel that Morice was the "minion" of Brost, not of Brost and

Sorenson. During further questioning on this topic, Regier stated that his understanding "from

[Brost was] that [Sorenson] and [Brost] on occasion did talk about Arbour together".

7. Conclusions on the Brost-Sorenson Alliance

[291] It is clear from the evidence as a whole that Brost and Sorenson had a long-standing

business relationship commencing in 1999 with SGD and lasting until at least 2007. They were

involved in SGD together. They were involved in Stone Mountain together. They were

involved in Strategic together. They were involved in Magna North together. Finally, they were

involved in Arbour together.

[292] When the totality of the evidence is considered we find it more likely than not that Brost

and Sorenson had developed a very profitable investment model. Brost's role was to collect

money from IFFL members; that money would then flow to Brost/Sorenson Entities. Both Brost

and Sorenson profited handsomely from this relationship. Investors, for the most part, did not.

We conclude that there was a strong alliance between Brost and Sorenson, for the purpose of

transferring wealth from investors to Brost/Sorenson Entities.

D. Merendon

1. Operations

[293] There was evidence, both witness testimony and documentary, that Merendon had gold-

mining and other operations during the time at issue here.

[294] It appears that Merendon was primarily engaged in the exploration and development of

mining concessions it owned, mostly located in Central and South America. Merendon's gold

mining operations had not, however, developed to the point that Merendon could be

characterized as a producer of gold. Sorenson stated in the Sorenson Affidavit that while

Merendon and its subsidiaries were involved in the production of gold, the production of gold

was not "exclusively [their] business".

[295] Merendon Honduras owned and operated a gold refinery in Honduras, but it is uncertain

as to the actual quantity of gold processed through the refinery that was owned by Merendon and

its subsidiaries; we are not satisfied by the evidence from Merendon and Sorenson that

Merendon and its subsidiaries owned a significant quantity of gold.

[296] Merendon Peru apparently owned seven concessions in Peru. Because the mine it had

operated was not economical, mining operations were suspended and subsequent operations

concentrated on exploration. In 2007 SGD apparently acquired Merendon's interests in the

concessions held by Merendon Peru, the purchase price extinguishing Merendon's indebtedness

to SGD. Consistent with that, the Sorenson Affidavit stated that Merendon no longer owed any

money to SGD. In support of that statement was an affidavit of Werner, as the current president

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of Bahama Resource Alliance (formerly SGD), confirming that Merendon owed no money to

Bahama Resource Alliance. Sorenson further deposed that Bahama Resource Alliance, was, as

of November 2009, indebted to Merendon for $37 million. Because we have found that Brost

and Sorenson controlled SGD, such that the SGD presidents were essentially figureheads, we do

not consider confirmation from Werner to be independent confirmation of Sorenson's contention.

We also question the value apparently attributed by SGD to Merendon's interests in the

concessions held by Merendon Peru.

[297] Merendon Ecuador owned an interest in the Tena Concessions acquired from Hampton

Court Resources Ecuador S.A. ("Hampton Court") in 2004 for approximately $800 000.

Hampton Court was in financial difficulty, having accumulated debt of approximately $850 000.

Merendon Ecuador had also owned a mine, referred to as EMPEC, but its operations were taken

over in an armed mercenary invasion in 2007. As of the date of the Merits Hearing, Merendon

had not regained control of the EMPEC mine. The only year Merendon Ecuador produced gold

was in 2007 when it produced approximately 750 ounces from the Tena Concessions. Feijoo

said that the EMPEC project had produced 24 000 ounces of gold before the mercenaries seized

control of the mine.

[298] Merendon Venezuela owned a custom gold milling operation that crushed and processed

raw rock, some with visible gold, that was sold to it by local miners. This did not appear to be a

significant gold-producing operation.

2. Financial

[299] To provide himself with "a good snapshot of [the] financial history" of Merendon,

Gleason prepared the Merendon Financial Statements (non-consolidated comparative financial

statements for the years ending 31 December 2003, 2004 and 2005, along with the pro forma

statements to 31 December 2006). The unaudited Merendon Financial Statements reflected

historical values based on purchase and expenditure amounts. They did not include any value for

gold in the ground beyond amounts invested to identify the gold.

[300] The Non-Consolidated Statements of Income and Deficit (the "Merendon Statements of

Income and Deficit") showed revenue from gold sales of $37 000 in 2003 (along with "Other

income" of $6278), but no gold sales in either 2004 or 2005 (although 2004 had a small amount

of "Other income" – $9286). There were no amounts indicated for "cost of goods sold" in those

three years. The pro forma (or "a budget, a guess, an estimate" as Chute described it) statement

for 2006 set out revenue from gold sales of $6 740 656 and "Other income" of $6122. With a

cost of goods sold estimated at $5 750 081 in the 2006 pro forma statement, the gross margin

was estimated at $996 696. Operating expenses increased from 2003 through 2005 and were

projected to increase further in 2006: $1 356 895; $1 666 413; $3 293 211; and $3 757 146,

respectively. Only 2003 and 2005 showed an income before taxes (2004 and 2006 showed a loss

and projected loss of $1 379 031 and $2 758 481, respectively). The $1 710 295 income before

taxes in 2003 was primarily due to an unrealized foreign exchange gain of $3 023 912. The

$1 557 297 income before taxes in 2005 was primarily due to a gain on sale of shares of

$6 393 526 – Chute believed that this gain was from Merendon's sale of the COREL shares. As

Chute noted, both were "extraordinary items, not things that will continue year to year".

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[301] The Merendon Statements of Income and Deficit show that Merendon had a deficit each

year:

$24 925 369 in 2003;

$24 629 400 in 2004;

$23 072 103 in 2005; and

$25 830 584 projected for 2006.

[302] In summary, Merendon had lost a cumulative $23 million by the end of 2005 and

projected that it would lose almost $3 million more by the end of 2006.

[303] Merendon's Non-consolidated Comparative Balance Sheets (the "Merendon Balance

Sheets") showed that Merendon had liabilities greater than assets from 2003 to 2005 (the pro

forma amounts for 2006 followed the same pattern). The asset-liability gap was large – over $18

million in each of 2003, 2004 and 2005, with a projected increase to over $21 million in 2006.

With those high liabilities and the correspondingly high asset-liability gap, the Merendon

Balance Sheets balanced because of the accumulated deficit in the shareholders' equity category.

The Balance Sheets also indicated as an asset "Inventory", which Gleason said was the gold

Merendon had purchased from its subsidiaries (primarily EMPEC and a little from Magna North)

at market value but had yet to resell. The 2003 Inventory was $154 466, 2004 was $1 799 193,

2005 was $1 905 684 and the estimated amount for 2006 was $1 036 331. Gleason said that

Merendon would then reduce the corresponding intercompany loan account by the amount of the

gold sold to it. However, Gleason did not explain why there was only $37 000 of gold sales for

2003 and then no gold sales until the over $6.7 million expected amount for 2006.

[304] The Merendon Balance Sheets showed long-term debt of $10 800 000 in 2004,

$38 663 457 in 2005 and the same amount projected for 2006. These amounts were the loan

amounts owed to Arbour. The other long-term liability category – just under $68 million

projected as at 31 December 2006 – indicated for all years is described as "Due to Shareholders",

which referred to Eiger. Liabilities of note were an "Interest payable to Arbour" category in

2005 ($749 496) and 2006 ($2 118 526), along with an "Interest payable" category in all four

years – the latter ranged from approximately $10 million to approximately $12 million.

[305] The financial position of Merendon in 2003 through to 2005 (and the projections for

2006) appeared to support Hoffman's concern that Merendon was not generating sufficient

returns in 2000 and 2001 to pay the promised return of 3% to SGD investors. Hoffman testified:

Funds, when requested, were provided to the -- back from Merendon to the investors by

Merendon.

[Sorenson] said he had a certain amount of capital that he was back-stopping the SGD investment

with and had said numerous times he was going to his personal money to cover redemptions. And

I had requested to see proof of that, and he said it was in lawyers' trust, and he said -- and Milowe

-- came back that Milowe was satisfied that that was there.

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. . .

My concern was always that it was -- Merendon never had the assets to cover the indebtedness of

the investors, and if they all decided they wanted their money back, they -- I wanted -- I was very

concerned that Merendon didn't have the assets to make repayments.

[306] Regier acknowledged that money paid by Arbour investors was being used to pay other

Arbour investors in what he agreed was a Ponzi scheme. Regier stated that Brost and Sorenson

and "the people that were on that IBG list of people" were those involved in this Ponzi scheme.

That included Regier himself and Werner.

E. IFFL Facts

1. General

[307] IFFL was Brost's company. Brost was IFFL's sole shareholder, a director and CEO.

IFFL's head office was in Calgary and in the same building as Arbour, Expedia and Strategic

Metals. Brost described himself as an "owner" and "[f]igurehead" of IFFL. In the Brost

Interview, Brost stated that he had always been CEO of IFFL until he "resigned as a result of

[Commission] hearings". We find that Brost was clearly the guiding and controlling mind of

IFFL.

[308] In the Brost US Interview, Brost described IFFL as having a somewhat similar structure

and purpose as Capital Alternatives, operating as "an information club" that taught people

"financial strategies through restructuring of assets to accomplish financial freedom", although

he said that IFFL members were encouraged to become clients of a major Calgary law firm so

they were in a solicitor and client relationship when they completed their membership contracts.

Brost also described Capital Alternatives and IFFL as being "strategy and business development-

type education platforms.

[309] As CEO, Brost said he was responsible for IFFL's "[g]eneral direction", as well as

"information meetings with both structurists and membership". He elaborated on the meetings:

"We are in the business of teaching people different ideas about how to view their financial

position, how to develop their finances, and so I was -- was in a constant state of presenting

concepts." He acknowledged being the primary presenter at those information meetings.

[310] Sorenson knew that Brost controlled and ran IFFL operations and was its guiding mind.

He understood that IFFL's "activities included informing and educating members on investment

opportunities." Sorenson said that he understood IFFL instructed those of its members who were

interested in moving money offshore on how to create IBCs, which were apparently the

corporate vehicles used for these investments. Sorenson also knew that Brost had IFFL raise

money from its members for SGD and Arbour.

[311] Regier began working at IFFL in July 2003, providing office management and

accounting services. His prior employment had been with Capital Alternatives, providing similar

office managerial services. Regier described IFFL as an "information club" and "an educational

institute where they had people doing educational seminars". He also confirmed that Brost

controlled and operated both Capital Alternatives and IFFL.

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[312] Regier said that IFFL was one of three companies "raising funds for SGD" (the others

were Parklane and Red House). He also acknowledged that IFFL was marketing Arbour (and

other companies, including Strategic) as possible investments for IFFL members.

[313] Brost was personally involved in IFFL's promotional activities. He participated in IFFL

structurists' meetings and gave presentations on specific investments. Regier recalled Brost and

Morice speaking about Arbour at structurists' conferences. Regier described Brost's presentation

– he "would just echo [Morice's] comments and exaggerate them, make them bigger". Regier

said that he saw both Brost and Sorenson interact with the structurists – "Sorenson made

presentations to the structurists with regards to Merendon Mining Corporation and its South

American properties and the state of those properties".

[314] Morice said that he dealt with Brost and Regier from IFFL and also with Forrest, Weeks

and Verbeem, although he did not know which, if any, of those last three were IFFL members.

[315] There was no clear evidence as to how much money IFFL raised from its members, but

the amount was in the millions of dollars. In October 2005 Hoffman wrote Blaikie seeking

confirmation that as at the end of December 2001, SGD had provided Merendon with

approximately $24 million. In a 24 March 2005 conversation, Sorenson told Hoffman that he

estimated that IFFL was raising at least $6 million per month, of which Merendon was to receive

70% or just over $4 million per month (but was receiving $2 million). Sorenson in the Sorenson

Affidavit deposed that IFFL had reportedly raised over $97 million in 2006. Sorenson claimed

that the Merendon entities received slightly over $26 million through SGD that same year

pursuant to the loan agreement between Merendon and SGD.

2. IFFL Structurists

[316] As noted, IFFL representatives were referred to as "structurists". They were retained by

IFFL to provide prospective members with financial information and advice. As Regier

acknowledged, IFFL structurists "were the people who were in charge of . . . disseminating . . .

'the gospel according to Milowe'". Structurists would solicit people to join IFFL's membership,

which then entitled those members to receive more specific investment information, including

information and access to an investment that would offer both a domestic and international side.

Investors paid an initial membership fee, with annual fees subsequently payable – the typical

membership fee appeared to be $1600 (plus GST) and the renewal fee was $400 (plus GST) per

year.

[317] IFFL structurists earned commissions based on the amount of money invested by

members in certain specific companies recommended by them. Regier explained that structurists

were compensated in two different ways. First, they received a commission for every member

they brought into IFFL. Second, they received additional compensation when a posting

(investment or allocation) was made to the international account of an investor that the particular

structurist had introduced to IFFL. Regier clarified that meant a structurist only received such

compensation if an investor invested in one of the Brost-connected entities, such as Arbour or

Rapid Express. Regier thought that the latter form of compensation was approximately 7% and

generally not a cash payment. Rather, the appropriate amount would go into the structurist's

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account, from which the structurist could draw a "redemption". Regier believed that the

maximum redemption allowed was about $50 000 per month.

[318] As stated, no commissions would have been paid to the structurists for purchases of any

publicly listed securities as IFFL members would have been required to purchase those securities

outside IFFL, presumably through registered dealers with access to the applicable exchange.

Thus, we find it reasonable to conclude that the international component of IFFL's compensation

structure provided a strong financial incentive for structurists to steer or recommend IFFL

members to invest in the Brost-connected entities, which were the only companies offering the

"international" side.

[319] Sorenson was also aware that IFFL structurists received financial benefits from IFFL

members who invested in the Brost-connected entities. He told Hoffman on 19 February 2005,

"Because [Brost] told these f**king structurists that they could have more money up and above

their commissions . . . they're all living like f**king kings and queens . . . and they're taking more

money out of the f**king program than the f**king clients are."

[320] Apparently structurists were provided with training documentation, such as the

"Structurist School" binder that was in evidence. Because that binder was dated January 2007,

several months after the last of the sales of the Arbour Preferred Shares, we placed no weight on

it.

[321] Thayer Jackson ("Jackson"), a former IFFL structurist, attended a meeting in April 2002

at which Brost gave a presentations on a number of specific companies as investment

opportunities. Jackson was subsequently asked to join IFFL "as an employee to present their

educational program". He described his understanding of IFFL's business:

Q . . . What's your understanding of the business of the IFFL?

A To educate individuals on what they can do with money.

Q So you attended a two-day seminar in Calgary put on by Milowe Brost in May of 2002?

A Yes.

Q And what was that seminar regarding?

A About the business aspect of IFFL on the educational side.

Q What type of education was provided to the members?

A The education is basically to educate people [on] the difference between conventional

investing -- mutual fund, stock market and those types of things -- and other things that

are around. That's basically the whole concept of what the educational side is about.

. . .

Q . . . What do you mean by "other things around"?

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A Well, there's other things internationally that you can invest in, which people have the

right to do it.

. . .

A Well, conventional investing, in my opinion, is when you go to a stockbroker here or

mutual fund broker or banks or whoever.

3. IFFL's Interactions with Investors and Prospective Investors

[322] The evidence is clear that IFFL and its structurists discussed with IFFL members –

potential investors – investment strategies and investment opportunities in specific companies.

[323] Brost and IFFL presentations to attendees focused on teaching them how to maximize

their investment returns by moving assets (such as RRSPs) into what IFFL claimed were higher-

performing assets with more favourable tax treatment. The presentations were designed and

executed to convince attendees to become IFFL members, which would entitle them to learn of

and invest in international opportunities offered only through IFFL. At presentations, Brost and

structurists generally represented that the international investments through IFFL were backed by

Merendon gold.

[324] Regier described how IFFL structurists would initially provide generic financial advice to

people interested in joining IFFL's membership:

They would give, I think they were one or two-hour seminars at either hotel rooms or whatever

where people could come and listen to a speech, if you will, on -- I think at that time it was very

generic, but it dealt with national erosion of -- the erosion of interest -- the erosion of money

growth with tax as a result of tax, interest rates, those types of things, and talked about in the

international or offshore-type investing where tax and the rate of growth was better.

[325] Different speakers would make presentations at group meetings or seminars – these

included Brost and guest speakers, such as Ken Sorensen and Morice. Members and non-

members could then attend one-on-one meetings with structurists to learn more about becoming

a member, making an investment or further understanding an existing investment. During the

presentations, prospective members were told that IFFL had an investment opportunity involving

international companies – referred to by Regier as the "International Business Group" – that

offered the advantages of an offshore investment. Only IFFL members were given this

international opportunity and permitted to invest, exclusively through IFFL, in entities offering

this international side, including Arbour. Regier described the international prospect as the

"sweetener".

[326] After becoming an IFFL member, the individual would receive a list of five or six

specific company names to consider as potential investment opportunities; contact information

was also provided. This information apparently was typically provided in a letter on IFFL

letterhead and signed by Brost as CEO (the "IFFL List of Companies"). Only one (or two) of the

entities on the IFFL List of Companies would offer the international side; the rest of the entities

were well-known publicly traded issuers. IFFL members had, by that time, been primed to

gravitate to the sole entity on the IFFL List of Companies offering the purportedly desirable

international side. It was, therefore, simple for Brost and his structurists to complete the task of

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steering the members to those entities that would provide the international component and

theoretically generate the high returns. IFFL members were also assisted by Brost and

structurists in setting up their IBCs, from which they were told they could manage their

international investment. In reality, however, Brost and his organization managed the

investment of the money.

[327] Regier identified two IFFL Lists of Companies in evidence as typical of the documents

Brost and IFFL structurists used to promote the international investments to IFFL members. We

reproduce one IFFL List of Companies:

Dear Member,

On behalf of the presenting Structurist and myself I would like to thank-you [sic] for

attending the workshop(s) and trust that these concepts and strategies have created an interest for

you to explore many types of financial opportunities.

As a financial educator, IFFL researches many investment opportunities. Opportunities

range from well[-]promoted mutual fund Companies to little[-]known National and International

opportunities; whereby word of mouth coupled with exceptional growth, create interest in the

target opportunity. Each Member must assess their personal objectives and risk factors based on

the strategies they are comfortable with.

The following is not an exhaustive list, but some of the Companies listed below may help

meet your personal financial freedom goals:

Canadian Tire offers a corporate security (stock) as well as a debenture.

[phone number and website given]

Walton International Group offers real-estate investments.


Axcess Capital Partner offers mortgage investments.


Warren Buffet[']s Company; Berkshire Hathaway offers many different investment

opportunities.

[no phone number but website given]

Arbour Energy Inc[.]; an up and coming junior Oil and Gas Company.

[phone number, email address and website given]

Dundee Wealth management offers many types of investments including mutual

funds, stocks, bonds.


If you require additional strategy assistance, please contact your presenting Structurist.

Warmest regards,

Milo A Brost, C.E.O[.]

[328] In the Brost Interview, Brost acknowledged that IFFL would provide its members with an

IFFL List of Companies at workshops – "companies that we thought, given the nature of our

discussions with them, would be pragmatic for them to go and have a look at". In answering

what IFFL did to identify such companies, Brost replied:

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There were people that I -- we took a look at, liked what they stood for, in completely different

sectors, and were presenting them to the membership for them to give whatever consideration they

deemed appropriate. . . . We told [IFFL members] that we looked at [these companies], we found

them interesting, thought they were a good idea, go take a look at 'em.

[329] When discussing what Brost and IFFL structurists told members about the companies on

the IFFL List of Companies, Brost said in the Brost Interview that:

A . . . IFFL has an organization that raises up structurists, and structurists are taught

different business-type strategies. In the course of them working with someone, putting

on a workshop, they would've produced a single piece of paper that would've had some

concept, some companies, go take a look at them, said if you wanna look at some

companies that are relative to what they're discussing in our -- our workshop here, here's

five in five different sectors that you go take a look at.

Q . . . Did you personally ever provide those documents to anybody or that document to

anyone?

A If I was putting on a workshop, then I would've provided the same document that any

structurist would've provided.

Q Okay. And when you provided that document, what did you say about it?

A Here's five different sectors, business sectors, that have the ability to produce what we

consider to be better than average returns, . . . Take what you're doing with your affairs,

take a look at these different opportunities and decide for yourself if -- if they're a good

idea for -- for you to look at, get involved in, et cetera.

Q So there are different sectors. What -- what sector did you say that Arbour Energy was

from?

A Oil and gas.

Q What information on Arbour was provided on that sheet of paper?

A Its name and probably a contact website or telephone number, depending on which

would've been more appropriate. And the same would've been for all five of them.

. . .

Q When did you -- did you ever remove Arbour Energy from this list of companies?

A When it became evident that there was room for misinterpretation, that we had provided a

list for people to go look at companies, that the [Commission] would and -- could and

would interpret that as a potential advice advising you are being sent, commissioned, go

send -- go spend your money there, we removed the communication from the structurists.

Q When was that?

A Year ago or so [approximately April 2007].

[330] Regier attended the twice-yearly IFFL structurists "group meetings" that Brost organized

to provide his structurists with "updates, issues, those types of things". Regier also stated that

the companies promoted by Brost "were either set up by [Brost] or had directorship and/or

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management by IFFL, either structurists and/or members". The evidence is clear – and we find –

that IFFL members made investments as directed by Brost and IFFL.

[331] Brost acknowledged that he and structurists discussed risk or risk tolerance and

diversification (he stated the latter was always raised and was "a good idea") with IFFL

members. He described what IFFL members were told about risk tolerance and, in particular,

discussions about the risks associated with an investment in Arbour:

Q . . . What, if anything, was taught to your members with regard to risk tolerance?

A Well, when dealing with people, try to find out what their risk tolerance is. Any

particular member will have a different panic point when it comes to what they're

comfortable with, what type of instrument that they're gonna be comfortable with, so if

they're a very conservative individual, then they don't wanna be looking at some type of

instrument that's gonna take them outside of their sweat zone, and -- you might as well go

[to] the next [topic in the document being referred to], which is "Diversify, Diversi[f]y,

Diversify." It's why I made the comment that we're focused here -- or, you're focused

here on the 30 or 40 million dollars that has been said that Arbour Energy was able to

encourage members to place at Arbour Energy. "Diversify, Diversify, Diversify," that

will be some small fraction of what the membership, as investors, would be involved in,

and I don't have a number for that, but I would certainly assume that 30 or 40 million

dollars is probably 30, 40 million of certainly 500 million, could be 30, 40 million of a

billion dollars, but they just happened to be able to attract that -- that interested segment.

. . .

Q With relation to risk tolerance, you said that there were different levels of risk tolerance

of your members. . . . [D]id you talk about risk with relation to any of these companies

listed here [in a document being referred to]?

A Risk tolerance would not come up when -- in this type of a workshop. In this type of

workshop, it would be trying to expand people's horizons to take a look at different

things. If they found something that they're interested in, if they ordered up another

session or a private workshop where they were actually talking about something that they

were specifically interested in, risk tolerance would then -- would've come into play.

Q Do you have any knowledge or did you ever speak to any of your members or potential

members with relation to risk tolerance on Arbour Energy Inc.?

A Did I ever have conversations? Yes. In workshops that I conducted where people had

expressed interest in Arbour Energy or had gone on to go get an offering memorandum,

et cetera, and came back to a workshop and said, you know, Is this a good idea or a bad

idea? that's when risk tolerance comes into play.

Q So your members would come back to you and ask that question[?]

A Often.

Q And what would you tell them when they asked that question?

A Depends on their risk tolerance.

Q What would you tell them about the riskiness of the Arbour investment?

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A My perception of the risk with Arbour investment would be medium to high. So if

somebody had a low risk tolerance, then they're in conflict with themselves. If they're a

medium risk tolerance person, then Arbour is something that, looking at it, you'd have to

weigh the -- the risk over the reward of the experience and if you -- if they were high

entrepreneur-type people and Arbour Energy was clearly within their -- their scope, then

the question would be what due diligence or how were they able to satisfy themselves

that that's something they'd be interested in. That's if they came back and asked for a

workshop to actually talk about Arbour Energy, some -- some would. Or talk about

anything else, for that matter.

With some members, we would wind up having many workshops after the initial

workshop, and other members, we'd wind up having one or two workshops and never see

'em again. It's all over the board.

. . .

Q How did you determine what risk tolerance the member would have?

A By conversations with the member: What are the things that they're presently involved

in, why are they happy or unhappy with -- with what they already have, what's been their

previous experience. Many of the members that we work -- and I would say a high

percentage of the members that we work with have had some type of bad experience

when it comes to investing, lost significant money. That usually factors in greatly to their

low, medium or high risk sensitivities. You discuss these things, [they're part] of a

private meeting, and discuss why do they feel the way about (sic) what they've done and

-- and what they're thinking about doing.

. . .

Q With regard to Arbour, if someone had said, I'd like to -- I've got an offering

memorandum from Arbour, I'd like to discuss it, would that result in a breakout session?

A Probably not. [If] they made that exact statement, they would probably be sent to Arbour

to discuss it. Fundamentals of an offering memorandum are the company's business, not

our business.

Q So when would you discuss Arbour with them?

A If somebody wanted to get together and -- and understand how Arbour would impact

their -- their financial future, how would it factor in, is this something that they can get

comfortable with, we would talk about that. We would talk about their -- from the impact

perspective, not from the actuals [sic]-- not from the actual investment.

Q So you would talk about how an investment in Arbour would impact their portfolio of

investments?

A More what their comfort is with that type of investment, where do they see it taking them.

May get into what percentage of their finances will be tied up with Arbour, et cetera,

because that factors back to risk again. It's hard to say. . . .

Q You said that when you discussed Arbour, you'd talk about, you know, how Arbour

would impact their future, where do they see the Arbour investment taking them. What

input did you have into those discussions?

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A If I was in the session, I'm listening and I'm providing a sounding board for people,

talking about their risk tolerance, percentage of their portfolio, what it would or would

not do for them if they got involved in Arbour. I'd become a sounding board.

[332] Those who became IFFL Members apparently received a members' handbook. In

evidence was an IFFL "Members' Handbook" (the "First Members' Handbook) provided by

Jackson. Another version (the "Second Members' Handbook") was received by the Commission

from the SEC.

[333] The First Members' Handbook contained several articles and considerable commentary

on investing, including commentary on financial education, international aspects, markets in

general, terminology and suggested reading material. In an introductory "Message from the

CEO" in the First Members' Handbook, Brost described IFFL:

The Institute for Financial Learning, Group of Companies Inc. is an organization dedicated to

providing a supportive environment where members can explore the many channels of domestic

and international jurisdictions. Through The IFFL, members can raise their financial knowledge

in areas of market analysis, regulatory tax issues, protection of assets and banking practices; and

they can learn new strategies to accelerate their ability to achieve financial security and develop

personal planning skills. Complementary Workshops are widely available, and provide an

introduction to these new strategies. Workshops are presented by a Structurist (an Institute

authorized representative) to educate, guide and facilitate the learning process.

[334] The Second Members' Handbook contained a "Membership Agreement" for a US couple,

dated 15 June 2004. The Membership Agreement set out the following services to be provided

by the IFFL:

9 [IFFL] will provide to the Member general education and guidance on concepts,

strategies and opportunities in various financial fields.

10 [IFFL] will not provide, and the Member will not receive from [IFFL], the following:

a) Investment advice on specific securities or any specific financial instrument or

business proposal;

b) An invitation to a Member or any individual of the public to subscribe for

securities;

c) A distribution of securities to the Member or any member of the public; or

d) A solicitation of a Member or any individual of the public to make any

investment or provide any funds to participate in a placement.

11 This Agreement shall not in anyway [sic] be interpreted to be an agreement in relation to

the provision or receipt of any of the functions referred to in section 11 [sic].

12 All financial concepts and strategies developed and presented through [IFFL] are generic

in nature, and are not to be considered as specific advice for the Member or any other

particular person.

13 Although reasonable efforts are made to accommodate each Member's vision of the

alternative financial future that he or she desires, [IFFL] gives no assurance or guarantee

as to the success of any concept or strategy implemented by the Member.

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[335] The Membership Agreement also contained "Non-Disclosure", "Confidential

Information" and "Non-Circumvention" provisions. The Second Members' Handbook also

contained various articles, charts and other materials about finances and investing, some of

which was the same as the material in the First Members' Handbook.

4. The "International Side" and "Managed Accounts"

[336] It became clear during the Merits Hearing that investors who invested in Arbour (and

other companies) through IFFL were told that they would receive not only securities in the

domestic company in which they were directly investing, but also a somewhat nebulous

"managed account" on the "international side". This supposed international investment would

enable investors to earn an extremely high rate of return, purportedly tax-free. Some of the

details became apparent through the documents and testimony before us.

[337] Regier explained that members investing through IFFL would receive an international

investment of some sort with SGD. For example, an IFFL member who invested in Arbour

would receive Arbour Preferred Shares and "would have a managed account available". That

managed account was "the international investment piece", for which "you had a choice of

quote/unquote investments . . . you could manage that money in a number of different

investments", with an average rate of return of approximately 2% to 3% per month.

[338] Regier agreed that "the real inducement for becoming involved with this IFFL group was

getting the offshore accounts backed by Merendon and Gary Sorenson's gold", with the

additional advantage of potentially tax-free money. As noted, non-IFFL members who invested

in Arbour would not receive the international account. Regier acknowledged that the "managed

accounts essentially became currency within this framework within this big picture".

[339] Hoffman confirmed that "managed accounts" were what investors received after they

invested:

[F]rom what I could ascertain from the information that was told to me, from the conversations,

was there was one company, and I think it was Grovenor, and all the investor money was put into

Grovenor from all the investors, and they had an account that they called the "managed account"

within that corporation, I think, if I've got it right.

[340] Chute confirmed that she was told by some investors that they were to receive, in

addition to their domestic investment, an offshore-managed account and that the money would

grow tax-free (with tax payable when they took the money out). Investors told her that the

international interest rate varied, but was approximately 3% per month, with the Arbour

domestic account paying interest at the rate at 5.75% per year.

[341] Regier explained that the managed accounts "didn't have real dollars" – none of the funds

invested in Arbour Preferred Shares, for example, went into the managed account. Regier had

this to say:

Q [W]hen you say it wasn't a real account, what was happening, as I understand your

evidence -- and please correct me if I don't understand it correctly -- is that really what

these managed accounts were was they drove off the investment -- the Arbour investment

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so, say, they -- somebody invested $10,000 in Arbour preferred shares, is it then the case

that the managed account would take that $10,000, not the dollars, but would say you're

now going to earn interest of 2 percent per month off that $10,000?

A Off a portion of it, yes.

. . .

Q Okay. So there were fees?

A There [were] some fees. I think it was -- for the first while it was 78 cents on the dollar.

Q [S]o that managed account really had nothing to do with the investment in the Arbour

preferred shares?

A Other than a direct correlation in amounts.

Q Right. But there were no funds going from -- the monies that were paid to Arbour

weren't going into any kind of account, it was really just --

A No.

Q -- an accounting that was done, whether it was the 2 percent per month or the 3 percent

per month?

A That's correct.

Q And so no actual money was invested in any legitimate financial institution that would

have been capable of earning this?

A No[.]

[342] Regier said that investors would receive a monthly statement from SGD for their

offshore-managed accounts, and he agreed that the statements would show a "strong return" on

the original investment. A sample statement in evidence showed interest earned of $64 854.48

over approximately 26 months (from September 2005 to November 2007) on a total investment

of $78 305 ($76 855 of which was the initial investment). Regier conceded that monthly

statements were "essentially false. That wasn't really how the money was moving" and that the

monthly statements were "just a fiction that was created to give people the impression that their

money was growing".

[343] Regier acknowledged that Expedia was Brost's company and that Brost had given him

responsibility for its day-to-day operations. He explained that Expedia provided administrative

and accounting services. More important, he agreed that "Expedia was the link between the

national side and the international side", with the national side being "where the money went"

and the international side being "a fiction". He described Expedia as the "administrative conduit,

that connects both sides" – the domestic and the international parts of the investment offered

through Brost and IFFL.

[344] Those who had loaned money to SGD – here, IFFL members who made an investment in

one of the international business companies were sometimes invited to view Merendon

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Honduras's operations. Sorenson said that he agreed to such tours on the condition that Brost not

use the tours to solicit potential lenders for SGD.

[345] Brost and Sorenson were both involved in the Merendon Honduras tours and portrayed

themselves as business partners to participants on some of those tours. Sorenson and Brost

would make presentations to the group about Merendon and its operations.

5. Brost and IFFL Promote Arbour

[346] Regier testified that his discussions with IFFL structurists led him to form the view that

the structurists wanted an RRSP-eligible investment vehicle to sell because they thought "that

Canadians were more ready to part with RRSPs than they were cash money, and so [the

structurists] viewed [RRSP money] as low-hanging -- quote/unquote low-hanging fruit". Regier

noted, in that context, that Arbour would be an RRSP-eligible investment.

[347] Brost promoted Arbour to the IFFL structurists at the structurists' conferences and Regier

"would assume" that structurists then promoted Arbour to IFFL members at member seminars.

Regier also noted that Morice provided a presentation on Arbour's projects at a structurists'

conference. Regier knew that IFFL members were being referred to Arbour by the IFFL

structurists. Regier agreed that "the IFFL, through its structurists, senior associates or [Brost],

recommended specific stocks to members", and stated that Arbour securities were among those

recommended.

[348] Arbour itself did not advertise or otherwise promote the sale of the Arbour Preferred

Shares to investors. Hobbs confirmed that the majority of Arbour investors came through IFFL,

with the others being "business associates or people that [Morice] would have known".

F. Arbour

1. The Resurrection of Arbour – from Bankrupt Shell to Going Concern

[349] In January 2003 Arbour, then a capital pool company, completed its qualifying

transaction when it participated in an exploratory well. Arbour's lawyer was Skeith, a friend of

Strashok, one of Arbour's directors.

[350] Strashok in the Strashok Interview described how he came to become involved with

Sorenson and Merendon. While looking for office space, apparently in 2001, Strashok learned

of vacant office space next door to Merendon's Calgary offices. He contacted Sorenson, whom

he had previously met socially, and Sorenson agreed to allow him to share the adjoining office

space. At that time Strashok was both a director and officer of Arbour as well as its legal

counsel. Over time a relationship developed between the two men, resulting in Sorenson asking

Strashok to act as Merendon's legal counsel. As noted, Strashok provided legal services to

Merendon from about December 2001 until May or June 2004 and was a director of Merendon

for a few months in 2004. Strashok's contacts at Merendon were Sorenson and Jack Wolfe, from

whom he received his instructions. One of Sorenson's instructions to Strashok was to

incorporate TRL.

[351] Strashok also provided legal services to Stone Mountain and was a director of Stone

Mountain until he severed all relationships with the Merendon group of companies in the late

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spring or summer of 2004. Strashok said that Sorenson had asked him to become a director of

Stone Mountain after Merendon had acquired Stone Mountain but that once appointed a director,

Strashok had very little involvement in Stone Mountain's activities. It was during his

involvement in Stone Mountain that Strashok had some contact with Wigmore, the president of

Stone Mountain.

[352] Sorenson deposed that Jack Wolfe first learned of Arbour from Strashok, then advised

Sorenson that Merendon should purchase Arbour common shares because of its potential for a

successful oil and gas well. Merendon purchased 1 million Arbour common shares as part of

Arbour's qualifying transaction in 2002.

[353] Sorenson was married on 16 September 2003 in Honduras. Brost, Strashok, Weis,

Wigmore and Monkman attended Sorenson's wedding.

[354] During 2003 Arbour experienced financial difficulty and sought protection under the

Bankruptcy and Insolvency Act (Canada) on 4 July 2003. Efforts were undertaken by the Arbour

board of directors to search for parties interested in purchasing a shell public company or

providing another solution that would allow Arbour to emerge from bankruptcy and continue in

business. From both Strashok's and Sorenson's versions of how Sorenson learned of Arbour, we

conclude that Sorenson was familiar with Arbour by the time it sought bankruptcy protection.

[355] Also in 2003 Brost and IFFL were looking for a way to access its members' RRSP money

– referred to as "low hanging fruit" by IFFL structurists, according to Regier. An investment in

shares of a public company would qualify as RRSP-eligible, thereby providing such access. (As

later confirmed by a 10 August 2004 letter from Skeith, an investment in shares of Arbour,

which was a public company, was a qualified investment for an RRSP.)

[356] Brost became interested in Arbour – one of many available public companies in dire

straits listed on the Exchange – as an investment vehicle for IFFL members.

[357] In or around July 2003 Sorenson and Merendon (which, as noted, had a substantial

shareholding in Arbour), expressed interest in acquiring a public company like Arbour. Skeith

advised Strashok on 30 July 2003 that the Exchange wanted Sorenson to complete a personal

information form and consent form and provided Strashok with the necessary forms. In a

September 2003 letter, Strashok outlined a proposal for consideration by Sorenson. The letter

indicated that it was sent by fax to "Sorenson – Merendon" for a "Proposed Acquisition of

[S]hares" and to Adair as a "Proposed Director of Arbour". A proposal was ultimately put

forward, but the Exchange did not approve the proposed transaction and it never proceeded.

Strashok generally confirmed this in the Strashok Interview.

[358] Despite some inconsistencies and Sorenson's attempts to distance himself from Arbour's

resurrection attempts, the evidence is clear and we find that Sorenson was aware in 2003 that

Arbour was a shell public company desperate for third party capital if it were to be saved from

bankruptcy and continue as a going concern.

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[359] Ultimately, a group of people associated with Brost – some from at least as far back as

Bellringer – become actively engaged in resurrecting Arbour. Regier confirmed it was Brost's

idea to resurrect Arbour. Morice, Weis, Wigmore, Hobbs and Martyn were those directly

involved in running the revamped company. Strashok confirmed that it was Brost "who was

interested in helping out Arbour".

[360] In late 2003 Strashok was contacted, he agreed, "out of the blue" by Houston who, acting

as an intermediary, advised Strashok that Houston had individuals interested in taking over

Arbour. Apparently one of these individuals was Brost. Although Strashok had met Brost at

Sorenson's wedding in 2003, Strashok did not know how Houston and Brost learned about the

Arbour opportunity. Houston and Brost presented a number of proposals to Strashok and the

Arbour board of directors as they searched for a viable solution.

[361] According to Strashok, he and Houston "didn't see eye to eye", and Strashok began to

deal directly with Brost, because it "became apparent" that Brost was the party interested in

assuming control of Arbour and working out a proposal for Arbour's continuation.

[362] At some point Houston withdrew and was no longer involved in the negotiations. Weis –

a long-time friend of Brost and Brost's former accountant – entered the picture.

[363] Many of these events were confirmed in a conversation between Brost and Hoffman on

8 June 2005. Brost spoke about how "Chris" (presumably Houston) was supposed to organize in

the summer of 2003 a public company to use for RRSP money for the end of 2003, but there

were delays that enraged Brost. Brost said that he then took over because he was "going to

resurrect this public company, I'm going to finish putting the deal together exactly the way it was

orchestrated", then Chris could also organize a public company, and they would "launch them

both and we'll see who gets to the trough first". Brost then confirmed that "in the middle of June

we launched the public company that I was involved with" but that it then was cease-traded for a

failure to file financial statements. However, Brost then told Hoffman that was resolved

"yesterday", and the shares of the public company were "up and trading this morning". Although

Arbour was not named, it is clear from the evidence – and we find – that Brost was discussing

the resurrection of Arbour by him: new management was installed at Arbour in June 2004;

Arbour was cease-traded for failure-to-file financial statements on 9 May 2005; and that cease-

trade order was to expire in late May.

[364] In the Brost Interview, Brost stated that he talked about Arbour with Weis, but did not

recall asking Weis to become a director of Arbour. Weis said that he learned of the Arbour

opportunity from Sorenson; Sorenson denied such a conversation. Strashok did not know

exactly how Weis became involved in Arbour, but recalled the loan from Weis to Strashok that

Strashok then lent to Arbour to help satisfy its creditors (discussed below). Strashok also did not

recall who proposed Weis as a director of Arbour. Weis said in the Weis Interview that he

became involved in the Arbour negotiations in January 2004 when he negotiated with Strashok,

then "put up the $300,000 necessary to save [Arbour]". According to Sorenson, Kendall claimed

to have provided that $300 000.

#4155039v1

[365] Given the prior close relationship between Brost and Weis and their continuing close

interaction on Arbour matters, we find that Brost was responsible for introducing Weis to

Arbour. We also find that Sorenson was, at the very least, aware of Weis's involvement.

[366] On 21 January 2004, a draft letter (erroneously dated 2003) from Weis to Strashok was

prepared. In that letter, Weis proposed a change of control transaction involving Weis

purchasing 6 million Arbour shares for an investment of $300 000 and reconstituting Arbour

with five directors – three nominated by Weis and 2 nominees of Arbour. In evidence were

comments from Skeith to Strashok about that draft proposal.

[367] Skeith was Arbour's lawyer through its revival; he produced material from his Arbour file

and referred to some of it during his testimony. Skeith dealt primarily with Brost and Weis,

working on a plan that would "fund [Arbour] and with a focus on oil and gas", allowing it to

emerge from bankruptcy and continue operating. Skeith understood that Brost would not

become a director or officer or be involved in running Arbour; however, he would raise money

for Arbour.

[368] Skeith's statements of account confirmed Brost's active involvement in resurrecting

Arbour. Skeith's statements of account in evidence first mentioned Brost's involvement in

Skeith's Arbour file on 12 February 2004, with frequent involvement by Brost for some time

thereafter, particularly from March through June 2004. Of note, the 27 July 2005 record referred

to telephone calls with Brost.

[369] In February 2004 negotiations were continuing between Brost and Strashok as evidenced

in email communications between Strashok and Skeith. Strashok advised Skeith of Brost's four-

stage restructuring plan. Stage one involved $200 000 being loaned to Strashok so that the

money could be immediately released to the trustee (presumably to be paid to the Arbour

creditors), and Strashok was to repay the loaned money. Stage two made clear that there would

be three new Arbour directors and these would be directors of Brost's choice. Stage three

involved issuing up to 10 million Arbour shares at $1 per share (Brost expressed concern that if

the Exchange approval process took too long, it would be a "bust"). Stage four called for

Strashok to transfer all his Arbour shares to Weis in late 2004 or early 2005, at which point the

former Arbour directors would have all resigned, leaving the three Brost-nominee directors

running Arbour.

[370] As part of the bankruptcy proceedings, Arbour filed a proposal to creditors that provided

for partial payment to them. Arbour stated that it completed a private placement of 6 million

common shares for gross proceeds of $300 000. The proceeds were to be used for partial

payment to the Arbour creditors who had accepted the proposal. As contemplated, Weis

provided the money to satisfy Arbour's creditors by way of a loan to Strashok (despite some

uncertainty in the evidence as to the final figure, we conclude that $300 000 was the correct

amount of that loan although we do not know where that money originated – we do not believe it

was Weis's).

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2. Arbour Post-Resurrection Transactions

(a) Existing Board of Directors

[371] In March 2004 Arbour, emerging from bankruptcy protection, had resumed operations,

ostensibly under then-existing directors Strashok, Gary Strashok, Gardner and Monar.

Communications were had with the Exchange to effect the resumption of trading in Arbour

shares, communications (at least certain of them) shared with Brost.

[372] The evidence is clear that, despite the continuation of then-existing Arbour directors, they

played little role in the resurrected Arbour's decisions, negotiations or other actions; the

involvement of Brost in the resurrection of Arbour, however, was profound. We now turn to

these events.

(b) 2004 Common Share Sales

[373] By the time Morice was brought into Arbour, IFFL had already loaned Arbour $25 000

until the "[$]2.1 million placement . . . was through" because Arbour had no money to fund its

operations, the $300 000 injection of capital provided by Weis having been used to settle with

Arbour creditors. Morice agreed that the $25 000 was "basically . . . seed money", and he said

that Regier wrote the $25 000 cheque, probably at Brost's direction. Arbour repaid IFFL the

$25 000.

[374] A 12 March 2004 news release announced that Arbour proposed to raise at least

$2 million in a private placement of common shares priced at $1 per share. A draft letter to

prospective investors dated 16 March 2004 and referenced "Common Share Subscription

Agreement" thanked recipients for their "consideration in participation in Arbour's common

share placement", enclosed among other documents the subscription agreement, and requested

return of the completed subscription agreement as soon as possible. A 16 March 2004 note on

this draft letter from Strashok to Skeith queried whether Arbour or "Milo's group" was

conducting this common share placement.

[375] By March 2004 Brost's fundraising efforts for Arbour from IFFL members were under

way. A 19 March 2004 email from Strashok to Skeith noted that some of Brost's investors –

"some investors of [M]ilos [sic]" – were wondering why there was no offering memorandum.

[376] A 22 March 2004 email from Strashok to Gary Strashok, Gardner, Monar, Skeith and

Weis advised that he had "asked Brost to explain the financing and eventual plan more fully to

you all", suggesting a meeting at Brost's Calgary "offices" on 7, 8 or 9 April 2004. In the same

email, Strashok indicated that Brost "says he has about $3.8 m[illion] in subscriptions returned"

for Arbour.

[377] A 30 April 2004 statement of account from Skeith to Arbour (the "April 2004 Skeith

Account") referenced Skeith's involvement, primarily with Brost and Strashok, in providing legal

services in respect of this common share placement.

[378] Skeith attended meetings on 8 and 9 April 2004 – the April 2004 Skeith Account

included a time entry for a meeting on 8 April with "Milo and directors" and for a meeting on

9 April with Strashok, Brost and Sorenson "re: directors, exchange, etc". Skeith testified to

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Sorenson being "involved at the early stage and then not so much later on" in what Staff termed

Arbour's "reorganization and recapitalization group"; Skeith elaborated that by 14 July 2004

Sorenson "was no longer an active participant". Skeith also testified to Sorenson's attendance at

a meeting of that group in spring 2004, and, when referred to the April 2004 Skeith Account,

surmised that meeting was the noted 9 April meeting. When further questioned, Skeith admitted

to having no specific recollection of Sorenson's attendance at a meeting on 8 or 9 April 2004.

Sorenson denied his participation in the 9 April 2004 meeting – he produced his wife's passport

and a travel itinerary to demonstrate that he was in Hawaii with his family on 9 April 2004, and

he also denied any telephoned participation.

[379] We do not find this denial by Sorenson credible. Rather, we think it more likely than not

– and therefore find – that Sorenson did attend the 9 April 2004 meeting, whether in person or by

telephone. In so finding, we note that the April 2004 Skeith Account was prepared by someone

with no motive to be untruthful about any of its entries. We also note that the April 2004 Skeith

Account – indicating Sorenson's participation in the 9 April meeting – was prepared and sent to

Arbour very close in time (30 April) to that meeting. We further note that, while the April 2004

Skeith Account, which covers services rendered from 6 August 2003 to and including 28 April

2004, contains numerous references to other individuals (including Brost) the 9 April 2004

reference is the only one mentioning Sorenson; we think it no mistake that Sorenson is

referenced on that date. Finally, we note that travel itineraries are often and easily changed, and

that the itinerary and passport entered in evidence prove only that Sorenson's wife was in Hawaii

during the period indicated.

[380] In March and April 2004 Skeith was sending material to Brost (who had no official

position with Arbour) and Strashok for their review, including letters from the Exchange. On

22 April 2004 Skeith drafted a letter to the Exchange, which was faxed to Brost for his review.

(Skeith believed that he also emailed this draft letter to Strashok.) In this draft letter Skeith set

out details in relation to a proposed private placement of Arbour shares at $1 per share. Skeith

advised the Exchange that 80% of the money raised would be placed on deposit with (a

misspelled) Grovenor Trust (according to Skeith, "a company that Milowe had suggested would

be holding money or investments or whatever", with which company Skeith was unfamiliar) for

no less than one year and no more than 10 years, with the balance of the money being available

for Arbour's use "in pursuing its oil and gas business". Details about Grovenor Trust, including

identification of its trustee, beneficiaries and business, were left blank. However, as noted

above, it was apparently an entity owned, controlled or operated by Kendall and Houston out of

Belize. Skeith also advised: "The financial planners who are placing the funds on behalf of

Arbour Energy in return for a 2% commission were introduced to Arbour through [Strashok]'s

connection [details to come]. The financial planners are all at arm's length with Arbour." Skeith

clarified in his testimony that the referenced "financial planners" were Brost's "fundraising

people".

[381] Skeith had no independent recollection concerning his handwritten notes from his Arbour

file referring to "Dorlan Trust Services Ltd." in Belize City. A 13 May 2004 letter from

Hoffman to Sorenson (the "13 May 2004 Letter") referred to a potential interaction between

Arbour and a Belize corporation called "Dorlan Trust Services". Hoffman testified that Sorenson

wanted to buy Dorlan "and put everything Milowe was doing and [SGD] and everything that was

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surrounding the companies inside the trust company [Dorlan]". Further, according to Hoffman,

the conversations he had with Sorenson and Brost at the time indicated Arbour was to be

included "in this as a way of legitimizing the sales process that they had ongoing and the

investment . . . that [SGD] had in Merendon, as well as . . . the people that had given money to

Milowe, Steve and Chris for -- that ultimately flowed to SGD, that ultimately flowed to

Merendon". Hoffman continued:

. . . Milowe owned or Milowe was the lead force behind Arbour Energy. Gary was involved in

Arbour from a standpoint of, there was an asset that Gary had that he was selling to Arbour, and

then the money was going to flow to Merendon Canada or Merendon Honduras or combinations

thereof.

[382] Hoffman stated in the 13 May 2004 Letter that "Arbor [sic] Energy will solicit investors

to purchase a security (preferred share or something similar) with registered funds" –

information, Hoffman told us, that was given to him by Sorenson. Hoffman also stated in the

13 May 2004 Letter that all Brost's salespeople "could possibly now be selling legally when

working for Arbor [sic] (this point I need to review in detail with legal counsel)".

[383] The 13 May 2004 Letter also contained Hoffman's suggestion for improving

accountability between Merendon and SGD. Hoffman explained during his testimony:

. . . SGD never had a bank account anywhere. It was incorporated in Nassau. It had no assets, it

had no bank accounts. The funds coming into Merendon were either delivered to Merendon

Canada, wired to [Adair], sent to Merendon Honduras directly or combinations thereof. None of it

went through a bank account that SGD owned, which was one of -- one of the things that I

disagreed with.

There was no way to complete an audit trail because [Sorenson] would never give anybody in

[SGD] access to Merendon's books to see exactly where the money was going after it came in.

When funds were required to be sent to an investor of [SGD], a request was made to [Sorenson].

He would approve it, the funds were transferred over to an account that one of the individuals . . .

assigned to [SGD] then could transfer or send a lump sum out.

So the reference [in the 13 May 2004 Letter] of maintaining the flow for everyone from client to

Merendon and back would be funds coming to Merendon from the client to Merendon and then

going back to the investor when they requested funds back.

[384] Hoffman testified that Sorenson ultimately purchased Dorlan, but that payment for the

purchase came to Hoffman from Adair's trust account so Hoffman was not certain whether

Sorenson bought Dorlan personally or through Merendon or another corporation.

[385] In a 22 October 2004 excerpt from the Hoffman Tapes, Sorenson confirmed to Hoffman

that "we're buying" Dorlan and changing its name to "Evergreen Trust [which] is really going to

own 100% of SGD". Sorenson also confirmed that "Evergreen is going to operate SGD with all

of the old contracts". Hoffman testified that he believed the referenced "old contracts" were

"contracts that were signed between individuals and SGD".

[386] In a 5 March 2005 excerpt from the Hoffman Tapes, Sorenson reiterated to Hoffman that

"Dorlan . . . is going to be renamed Evergreen". Sorenson also stated that "Evergreen Trust

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Services Limited will own 100% of a company called Base Metals" and that "Base Metals will

own 100% of SGD". Hoffman acknowledged that he had no information indicating that these

apparently future plans ever materialized.

[387] A 9 September 2004 Arbour news release declared that Arbour was "in the final stages of

completing the previously announced private placement" of 2 142 023 common shares at a price

of $1 per share. A Report of Exempt Distribution ("Distribution Report") filed by Morice

reported the distribution on 31 October 2004 of 2 142 023 Arbour common shares at a price of

$1 per share, with all sales made in reliance on the accredited investor exemption. In the Morice

Interview, Morice said that: he did not know how it was ensured that the purchasers were

accredited investors; he did not do any work to ensure that they were accredited; the information

came through IFFL, which told him that the purchasers were accredited; and Morice made no

further inquiries.

[388] Another Distribution Report reported the distribution on 31 October 2004 of 6 million

Arbour common shares at a price of $0.05 per share – 1.2 million and 4.8 million Arbour

common shares acquired by Morice and Weis, respectively, in reliance on the accredited investor

exemption. In the Morice Interview, Morice explained that the $300 000 provided by Weis to

Arbour "went in under an option to convert to 6 million shares" and part of Morice's "agreement

going into Arbour" was that he would acquire 1.2 million of those 6 million shares.

(c) Crazy Hill Purchase and Sale

[389] On 31 May 2004 Arbour entered into a preliminary agreement with Crazy Hill Resources

Ltd. ("Crazy Hill") to acquire a producing oil and gas property near Drayton Valley, Alberta.

The agreed purchase price was $1 million, consisting of $350 000 and 650 000 Arbour common

shares at $1 per share. In a 9 September 2004 news release, Arbour announced that the closing

on the Crazy Hill asset purchase was scheduled for 30 September 2004. The Management's

Discussion & Analysis ("MD&A") for Arbour's year ended 31 December 2004 ("Arbour's 2004

MD&A"), which was dated 18 May 2005 and filed on SEDAR, indicated that the Crazy Hill

acquisition closed on 1 November 2004.

[390] Strashok said that he believed Brost had negotiated the Crazy Hill acquisition, and then

Strashok and Morice were told "this is going to be the deal". Morice said that he negotiated the

acquisition with Allen Vogel ("Vogel"), the principal of Crazy Hill. Interestingly, Vogel was, or

had been, a director of Merendon. Negotiations were lengthy, carrying on throughout the

summer of 2004. We suspect that the Crazy Hill acquisition was negotiated by both Brost and

Morice, with Morice entering the negotiations at a later stage, although such a finding is not

necessary given the allegations we are deciding.

[391] In 2006 Arbour sold the Crazy Hill property back to Crazy Hill (Vogel). We were given

two alternate explanations for the sale. Morice explained that Arbour had received the revenue

for the period it had the property, but there had been some decline and it did not get the deep

hole rights it had wanted. In the result, Arbour's management decided to sell the property back

to Vogel for the same price and effectively end the relationship. Gleason's version was that

Crazy Hill (Vogel) was interested in buying the "Drayton Valley well properties" back from

Arbour, and Vogel contacted Merendon "for some possible funding" to make the acquisition.

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Merendon agreed to "finance the transaction and use this as an opportunity" to reduce – by

$850 000 – Arbour's indebtedness to Merendon on the COREL transaction.

[392] A Purchase and Sale Agreement made effective 1 May 2006 documented Arbour's sale of

the Crazy Hill property back to Crazy Hill for $1 million. The sale actually closed on

11 October 2006. That day Merendon provided Skeith with a cheque in the amount of

$850 159.40 ($1 million less adjustments) representing Crazy Hill's purchase money, after which

(Arbour having assigned the sale proceeds to Merendon) Skeith provided Merendon with a

cheque in the same amount. In a 13 October 2006 letter Gleason confirmed to Morice that the

$850 159.40 had been received and would be applied to reduce Arbour's approximate

$1.1 million indebtedness to Merendon on the COREL transaction, leaving a balance of

$345 860 owing by Arbour.

[393] Gleason had no explanation as to why Arbour had sold a producing asset – the Crazy Hill

property – to retire a portion of $1.1 million owing from it on the COREL transaction instead of

retiring the entire $1.1 million by offsetting it against the $38 million it had already advanced to

Merendon (detailed below).

[394] Gleason advised that, after Arbour's sale of the Crazy Hill property back to Crazy Hill, a

joint operating agreement to operate the wells was entered into between Sorenco and Crazy Hill,

with Crazy Hill having a 5% interest and Sorenco having a 95% interest.

(d) Negotiation of $10 Million Loan to Merendon

[395] A 31 May 2004 statement of account from Skeith to Arbour included this 29 April 2004

entry: "Telephone calls from Milo, Gary Sorenson; review of TSX-V policies re: new

proposal". We find, consistent with Sorenson's testimony about talking with Skeith, that the

noted call from Sorenson pertained to Arbour's pursuit of an interest in TRL involving the

loaning of money to Merendon.

[396] Skeith received a 3 May 2004 fax from Sorenson attaching a draft letter of intent (the

"Draft Letter of Intent") directed to the attention of Strashok, detailing a proposal whereby

Arbour would lend $10 million to Merendon on or before 15 June 2004 for a maximum of

10 years at an interest rate of 3.5% per annum. (A $10 million loan (the "10 Million Loan") was

eventually made, with the funds advanced by Arbour to Merendon between 27 July and

8 December 2004.) The proposed terms also provided that Arbour could convert the loan

proceeds plus interest (in addition to 5 million Arbour common shares) into "5% of the Oil Sands

Recovery Patent in common shares of the Corporation holding the patent" – in other words, a 5%

stake in TRL, partly owned by Merendon. The Draft Letter of Intent referenced and appended a

"Tarsands Project Overview" mentioning ARC's "very detailed testing and evaluation" of the

TRL technology – which, we note, was not informative but rather nonsensical – and "a general

historical overview" of Merendon detailing its North, Central and South American properties.

Arbour was to accept the Draft Letter of Intent no later than 15 May 2004. On 4 May 2004

Skeith emailed to Sorenson a revised form of the Draft Letter of Intent. In this email to

Sorenson, Skeith wrote that he thought the Exchange would "want some idea of the financial

strength of Merendon". Skeith also wrote: "I have traded calls with Milo, but don't know what

e-mail to send this to for him. Please forward it on to him." Skeith did not know whether

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Sorenson had forwarded this email to Brost. Skeith testified that he was intending to send the

revised form of the Draft Letter of Intent to Brost because Brost "was involved in these

discussions", and Skeith agreed that Brost would be generating the money. Sorenson testified

that he did not forward Skeith's email to Brost and that he did not know why Skeith was

mentioning Brost – "It had nothing to do with the transaction."

[397] In a 6 May 2004 letter, Skeith advised the Exchange that Arbour had "reviewed its

proposed arrangement with the trust company that was going to hold their [offshore] assets", had

"refined their plan" and wished to enter into the attached letter of intent (a revised form of the

Draft Letter of Intent) with Merendon. Skeith also advised: "Merendon is currently a

shareholder of Arbour, and [Strashok] does sit on the board of Merendon." Skeith further

advised that "$6 million is currently available to [Arbour] at this time" – a reference, we find, to

money raised by Brost (and his organization IFFL), as Brost was the only one raising money for

Arbour at the time. Skeith included with this letter Merendon's 30 September 2003 and

31 December 2002 consolidated, and apparently unaudited, financial statements (the "2003

Merendon Financial Statements").

[398] Sorenson had sent the 2003 Merendon Financial Statements to Skeith in response to

Skeith's comment about the Exchange likely wanting information about Merendon's financial

strength. The cover letter to the 2003 Merendon Financial Statements, entitled "Notice to

Management", indicated that they were prepared by "Sig-Ney Consultants Ltd.". While this

could, perhaps, suggest an independent accounting, the cover letter was signed by "Jack R.

Wolfe, Registered Public Accountant", who, as noted, was Merendon's controller at the time.

[399] The 2003 Merendon Financial Statements stated that as at 30 September 2003: the assets

of Merendon were some US$1.1 billion, of which slightly more than $1 billion was attributed to

"Delineated Reserves"; and its liabilities were some US$1.1 billion, of which slightly more than

$1 billion was attributed to "Revaluation Surplus". As at 30 September 2003, its income was

stated to be US$474 332 – sourced from "Gold Sales" (US$288 322) and "Jewelry Sales"

(US$186 000) – and its deficit was stated to be US$9 765 319. Notes to the 2003 Merendon

Financial Statements stated under "Summary of Significant Accounting Polices":

Mineral Properties and Deferred Exploration Costs

The carrying values of the mineral properties and deferred exploration costs represent accumulated

costs and are not intended to reflect present or future values. The recoverability of the amounts is

dependent upon the confirmation of economically recoverable reserves, the ability of the

Company to obtain the necessary financing to successfully complete their development and upon

future profitable production.

[400] According to Morice, it was Brost who suggested that Arbour lend to Merendon the IFFL

money already raised for Arbour. Morice explained that, at the time, Arbour was aware of the

oil sands technology interests Merendon had, which were of interest to Arbour, but Merendon

said Arbour could not afford to buy those interests, which were "too valuable" – apparently,

given the proposed terms in the Draft Letter of Intent, Merendon's interests in TRL were worth

approximately $75 million (with the TRL enterprise apparently being valued at approximately

$300 million).

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[401] Weis said in the Weis Interview that one of the reasons for investing in Arbour was to

possibly use it as a vehicle to take over Merendon's 25% interest in TRL. According to Weis,

Sorenson said that "he might divest himself of" his 25% interest in TRL. Weis said that he

believed the oil sands investment was a great opportunity, and that Arbour was the vehicle to

take over that interest "[a]nd make something out of it". It appears that the sale of Merendon's

interest in TRL to Arbour was being contemplated at the time of Arbour's resurrection. We so

find.

[402] In the Brost Interview, Brost disclaimed any involvement in setting up the $10 Million

Loan between Arbour and Merendon, but admitted he had suggested to Morice that Merendon

might be interested in a loan:

Q Were you involved in any discussions in which the loan agreement or the terms of the

loan agreement were discussed?

A Yes and no. Yes, that a loan agreement could be accomplished. Yes, what might that

look like for Arbour. No, I don't remember discussions with Gary or Merendon as to

what that loan would look like from their side, and no, I was not involved in helping

prepare or close on that loan agreement.

Q So on the side of Arbour Energy, you had some discussions about the terms of the loan

agreement; is that correct?

A More -- not so much the terms of the loan agreement, but that a loan relationship could be

-- I think that Merendon would be interested in entertaining it, not -- not so much the

terms; I don't remember the terms.

Q Can you just elaborate on what the discussions were regarding the loan relationship?

A I had reason to believe that Merendon would be interested in having a lender/debtor

relationship with Arbour. From that point, [Morice] pursued that and had his own

meetings with Merendon and established how much and what the terms would be and

what the rates would be, what the payment terms would be, et cetera. I wasn't involved

in that process at all.

Q So you had reason to believe they'd be interested in a lender/debtor relationship. Why

did you have reason to believe they'd be interested?

A I know that Merendon is involved in developing many of its projects. I'm also aware that

in the mining industry, it takes an awful lot of money to develop mining projects and that

if money could be made available in a reasonable fashion, that additional money being

available to have Merendon develop its interests would be a good thing.

. . .

Q So you are confirming that you gave a positive impression to [Morice] on --

A. The concept, yes, I would've.

Q The concept of loaning money to --

A Yes, I would.

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Q -- Merendon. Did you mention any risks of loaning money to Merendon to[Morice]?

A Not my place.

[403] Brost characterized the $10 Million Loan as "a means to an end"; he acknowledged

discussing this "as a point of strategy how could [Morice] best posture himself to take up the

opportunity with COREL" given that at the time COREL's owners were not interested in selling

"their project". Brost elaborated that Merendon was a minority shareholder in the COREL

project and described COREL as:

The COREL project, which is proprietary technology for the separation of heavy oil sands and

removing the residual oil, which provides both production and an environmental clean-up, is

something that Merendon had an interest in and was rapidly becoming a very viable and

potentially profitable marketplace. [Morice] and my discussions centred around if one was going

to try to acquire COREL, what would be the best way to go about it. Discussion that I had had

about the project with the project owners is that they were not interested in selling their project,

given what -- what they believed the potential would be.

[404] Sorenson had a slightly different version. First, he testified that the only person with

whom he negotiated the Draft Letter of Intent was Morice. Second, Sorenson claimed that

Morice, who was in Honduras visiting Brost at the time, came to Sorenson's office to discuss

Arbour's interest in purchasing an interest in TRL. Sorenson, who did not think that Arbour had

the money to do so, told Morice to come back and see him when Arbour could raise the money.

According to Sorenson, Morice then said that he thought Arbour had the money and that they

should "look at the ramifications of entering into a letter of intent". Third, Sorenson said Morice

suggested to him that they structure the purchase as a loan because Morice would then not have

to disclose it to regulatory authorities. Sorenson further said that he discussed this structuring

with Skeith, who indicated that Morice's suggestion was correct. Fourth, Sorenson testified that

he sent the Draft Letter of Intent to Skeith. Sorenson said that, although he had negotiated with

Morice, he addressed it to Strashok because Morice, who had said he was becoming the

president of Arbour, had yet to assume that position.

[405] Weis confirmed a meeting in Honduras, although the timing and circumstances he

referred to were different, including Weis's contention that it was part of the negotiation process

(rather than the start of it) and that Weis was also at the meeting (not only Sorenson and Morice).

At some point during the negotiation of the Draft Letter of Intent, Morice and Weis travelled to

Honduras to meet with Sorenson – according to Weis, he and Morice "wanted ourselves to

satisfy that Merendon has the ability and to do a $10 million loan; and TRL might be worth,

5 percent might be worth $10 million", so they inspected Merendon's plants in Honduras and

"looked at some mining reports and engineering reports" and "some financial statements,

basically a review of the [sic] Merendon, and first time we met the other people in TRL, the

other shareholders".

[406] Morice confirmed that he had seen Merendon's internal financial statements at the time

Arbour entered into the verbal deal with Merendon, which showed assets of over $1 billion,

based on the value of its mining ventures. (These would appear to have been the 2003 Merendon

Financial Statements, which also showed liabilities of over $1 billion.) Morice recalled that the

financial statements he reviewed showed that Merendon did not have any significant income

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being produced from those assets. Morice said that he was not concerned because the income

statement did not show gold sales not yet made, and he had seen what he believed was about

$1 million worth of gold in Merendon's vault in Tegucigalpa. Morice's evidence does not accord

with the 2003 Merendon Financial Statements, which showed income from gold and jewellery

sales of US$474 332 before expenses.

[407] There was conflicting evidence as to how the negotiation of the Draft Letter of Intent

unfolded. There was clear evidence of Sorenson being involved, on behalf of Merendon,

throughout the negotiation process. There was evidence from Skeith and Morice indicating

involvement by Brost early in the process – indeed, Brost's evidence suggested he was the

impetus. There was also evidence indicating involvement in the process by Strashok and then

Morice (and perhaps Weis) on behalf of Arbour. Notwithstanding any evidence to the contrary,

we find that Brost for all intents and purposes instructed Morice that Arbour was to lend money

to Merendon, while indicating to Morice that Merendon would be amenable to having Arbour do

so. The Draft Letter of Intent was negotiated, we find, between Brost and Sorenson – it could

not have been otherwise because in early May 2004 the then-existing Arbour directors were not

actively involved in making decisions for Arbour and the involvement of Morice (and Weis, to

the extent he was involved) was as individuals being recruited by Brost to be Arbour directors.

And, as we detail below, the negotiated terms of the Draft Letter of Intent continued into the

agreement as finalized.

(e) Arbour's New Board of Directors Appointed

[408] In early 2004 Morice was being recruited by Brost and Weis to become a director and the

president of Arbour. A certified general accountant, Morice had previously acted as a consultant

preparing tax returns for IFFL members, knew Weis through accounting circles, and knew Brost

through their mutual association with Bellringer in the 1990s.

[409] Brost stated that he contacted Morice to see whether Morice was interested in becoming

an officer or director "of a public corporation, of which Arbour Energy was one candidate".

According to Morice, he and Brost met to discuss the possibility of Morice becoming president

of Arbour, at which meeting Brost "was fully confident that we could raise an amount of money"

using an offering memorandum; Brost indicated that Arbour would get investors "through the

network", which Morice understood to be IFFL. Morice also understood that IFFL was a

"membership-type organization" and that its members had originally invested in gold-related

ventures, with Merendon as the investment vehicle for that activity, but had decided to branch

out and invest in oil and gas ventures and Arbour had been chosen as the investment vehicle for

that venture. Morice found this an attractive proposition because:

. . . the money was discussed to be raised before we had the deals, and that's what everybody

dreams about. Normally, in my past dealings, we have good deals, and then we have to figure out

how to get the money to get them off the ground. This was the other way around, so I liked that

opportunity.

[410] According to Morice, Brost told Morice that "the group was looking for a suitable

candidate"; then he introduced Morice to Weis and Strashok, "and discussions progressed from

there". Morice said that Weis ultimately hired him. Skeith also understood that Brost "and/or"

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Weis – neither of whom was an Arbour director at the time – brought Morice in to be the

president and a director of Arbour.

[411] By the time Morice was brought into Arbour, fundraising for Arbour from IFFL members

was already under way, as were plans for Arbour to loan the investor money to an offshore

entity. According to Morice, Brost and to some extent Weis "laid out what was in progress", and

Brost explained "the initial strategy": first, IFFL members were interested in making qualified –

generally RRSP eligible – investments; second, the qualified investments would be in Arbour;

and, third, the investor money would be "parked" offshore short-term but would be available to

Arbour "to make . . . deals that would allow Arbour to be a solid vibrant oil and gas company".

Morice understood that a $2 billion offshore organization was "backstopping Arbour to go get

some valuable oil and gas properties" – that was the "commitment" made to him when he

"joined" Arbour. Morice said that he, Brost and Weis were involved in the decision to raise

money through the sale of Arbour Preferred Shares to IFFL members, and Morice worked with

Skeith to prepare any offering memoranda.

[412] Originally Brost told Morice that the IFFL money invested in Arbour would be deposited

short-term with an offshore entity called Evergreen Trust that was to be formed out of Belize.

For reasons unknown to Morice, Evergreen Trust could not be used and Brost decided to lend the

Arbour money to Merendon, which according to Morice, "had a structure of moving money

internationally".

[413] Skeith thought that Morice became involved in Arbour in May 2004 "on a consultive

[sic] basis or potential director basis". A 20 May 2004 letter from Skeith to the Exchange

advised the Exchange that Arbour was proposing to appoint Morice and Weis as directors. A

31 May 2004 letter on "Arbour Resources Inc." letterhead to Skeith from Morice as "Consultant"

indicated that Morice was familiar with a number of oil and gas transactions Arbour was

undertaking at that time (despite the slight differences in name and address on that document, we

find this referred to Arbour).

[414] On 11 June 2004 Morice and Weis were appointed as directors to the Arbour board of

directors, as announced in a news release of that date. Morice was also appointed Arbour's

President and Secretary on 11 June 2004, and he became its CEO and CFO on 9 September

2004. Contemporaneously with the appointments of Morice and Weis as Arbour directors,

Arbour directors Monar, Gardner and Gary Strashok resigned their Arbour directorships. These

appointments and resignations were part of Arbour's reorganization and change of control. The

remaining original director, Strashok, agreed to remain on the Arbour board of directors for a

short time. Strashok apparently had no interest in staying on with Arbour after its reorganization

and change of control and had no significant role with Arbour during that period, other than

allowing his name to continue as a director.

[415] The evidence is clear that Brost was actively involved in recruiting and appointing both

Weis and Morice as directors of Arbour and Morice as its president. We also find that Weis and

Morice were Brost's nominees, placed on the Arbour board of directors to follow his instructions.

We so find.

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[416] An Arbour news release dated 9 September 2004 stated that Strashok "has resigned,

having fulfilled his commitment to stay on through [Arbour's] reorganization", although Strashok

told Skeith that Strashok resigned effective 12 August 2004. In his place, Wigmore – a long-

time friend and business associate of Sorenson, former president of Stone Mountain, and a

former director (until his resignation in March 2004 at the behest of Sorenson) and the president

of Merendon until November 2003 – was appointed to the Arbour board of directors. Wigmore

said that either Morice or Weis had contacted him to see if he was interested in becoming a

director of Arbour. Weis stated that he recruited Wigmore, having met Wigmore through

Sorenson. In the Wigmore Interview, Wigmore stated he had known Brost for 5 to 7 years

"mostly from a distance", meeting him at Merendon functions, such as board meetings and

dinners after board meetings, but had "never spent a lot of time with him". Skeith believed Brost

"had a say in" the appointment of the three new Arbour directors – Morice, Wigmore and Weis.

Blaikie believed that Wigmore was within "Sorenson's sphere of influence" and not affiliated

with Brost or his associates Elizabeth Brost, Casey Brost or Regier.

[417] We think it no coincidence that Wigmore, a long-time Sorenson associate, was appointed

as a director of Arbour. We also think it reasonable to infer from all the facts and circumstances

that – given Wigmore's close connection to Sorenson and relative lack of connection to Brost –

Sorenson was significantly involved in the decision to appoint Wigmore as a director of Arbour.

We find that Wigmore was Sorenson's nominee on the Arbour board of directors.

(f) The Roles of Brost and Sorenson

[418] Notwithstanding that neither Brost nor Sorenson held any official position with Arbour,

both exercised influence over actions taken by Arbour. We now consider the roles of Brost and

Sorenson in Arbour.

[419] In a 19 October 2004 Hoffman Tape, Sorenson discussed Arbour and Brost with

Hoffman and referred to a conversation he had with "Larry" (identified by Hoffman as Adair):

. . . I was under the impression, this is Larry still talking[,] that the reason that Milowe was

forming Arbour Energy was that this was going to legitimize his solicitation of funds because he

can sell preferred shares in a public company and his representatives or strategists or whatever can

sell preferred shares in--in a public company convertible to common shares, not being a registered

securities dealer as long as they file an offering memorandum . . . .

[420] Skeith stated that he would describe Brost as Arbour's controlling mind at the beginning

of 2004; however, in the middle and towards the end of 2004, Skeith was told to talk to Morice

and that Brost "would be looking to [Morice] for business decisions".

[421] In the Strashok Interview, Strashok described Brost's role after summer 2004 as "the

money raiser".

[422] Hoffman testified that Brost spoke of Arbour as being Brost's company. Hoffman agreed

that Brost "seemed to have ongoing involvement with Arbour and . . . purported to have an

understanding of its affairs". However, Hoffman acknowledged that he did not know who set up

Arbour, nor what Brost's or Sorenson's involvement in that would have been. Hoffman also

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stated that he did not know why Arbour was set up or if Sorenson had any involvement with

Arbour.

[423] Morice in the Morice Interview described Brost and Sorenson as the "key players" and

that although not certain, he believed that the idea for Arbour came from them.

[424] Wigmore stated in the Wigmore Interview that he was not aware of Sorenson having any

role in setting up Arbour. Wigmore characterized Brost as "involved in raising money for [SGD,

which was] one of the companies that financed Merendon". In contrast to much of the evidence

before us, Wigmore stated that Brost was "not part of any decisions [for Arbour]. He's never

attended a board meeting. As far as I know, he does not own any shares in Arbour", although the

Arbour board of directors "has met with him, at one time, to look at investment opportunity".

Given the entirety of the evidence before us, we do not accept Wigmore's evidence on this latter

point.

[425] Regier became involved with IFFL in 2003 and with Expedia in 2004. These positions

led him to some interaction and involvement with Arbour and its affairs. He agreed with the

characterization of Brost as Arbour's head and Weis as the adviser. Regier testified that Morice

made Arbour's decisions "[o]perationally" in the 2004 to 2006 period and that "Brost also

provided [Morice] with some guidance . . . with regards to the purchase of certain assets". As for

Sorenson, Regier stated that he understood Brost and Sorenson to be "like the kingpins . . . at the

top of the ladder", with Morice falling "more under [Brost's] . . . line of authority". Regier also

confirmed his opinion that Sorenson was aware of what Brost was doing with Arbour's funds,

but that Morice did not know "what Merendon may have been doing with the funds".

[426] Despite some inconsistencies in the evidence, we are satisfied from the evidence as a

whole that Brost was principally responsible for resurrecting Arbour and exerted significant

control over Arbour affairs certainly in its early stages and in all major decisions involving

Arbour, its fundraising and its use of money raised by Brost and IFFL. We so find.

[427] The evidence as a whole is less clear about Sorenson's involvement, but we believe – and

find – that he played a role, albeit minimal, in Arbour's resurrection and restructuring, and that he

was always in the background, prepared to exert his influence with respect to any decisions that

could affect the movement of money to Merendon. We think it no coincidence that, immediately

after Sorenson failed in his bid for Arbour, Brost, "out of the blue" pursued Arbour as the RRSP-

eligible investment vehicle for IFFL members. We think it no coincidence that Wigmore, a

known Sorenson associate with relatively little connection to Brost, was appointed a director of

Arbour. We think it no coincidence that Sorenson knew Arbour (out of all potential lenders)

would be receptive to lending Merendon $10 million, although Arbour had not yet raised any

funds. We think it no coincidence that substantial Arbour money was lent to Merendon on the

strength of the apparently unaudited 2003 Merendon Financial Statements (which showed large

unproven reserves). We think it no coincidence that technology with no proven commercial

viability was purchased from Merendon with neither security nor a formal, binding agreement.

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3. Arbour's Operations and Activities

(a) Arbour's Operations and Expedia

[428] By the summer of 2004 Brost's people had infiltrated Arbour.

[429] Immediately following the appointment of Morice and Weis as Arbour directors, Arbour

relocated from premises provided by Strashok (through Sorenson) to premises leased from

Expedia. This was the same office space as Strategic and IFFL. In approximately November or

December 2005, Arbour moved another time, again leasing from Expedia.

[430] Morice – Brost's hand-picked candidate – was Arbour's president. Carol Weeks – a

known Brost associate – was, according to Skeith's Arbour file dealing with Skeith's office on

behalf of Arbour, including some involvement in "filings, AIF, etc." and share certificates.

Dwayne Martyn, a known Brost associate and IFFL structurist, also did some work for Arbour.

[431] It appears that Morice was operating Arbour essentially on his own, with Hobbs, a Brost

associate from at least the mid-1990s, at some point joining Arbour as a consultant assisting with

Arbour's financial matters. In August 2005 Hobbs was appointed Arbour's CFO. Various other

people appear in time records from Skeith's Arbour file, indicating their involvement, but

apparently to a minimal degree.

[432] This is consistent with evidence from Regier, who testified that, in addition to Morice and

Hobbs, he only observed one or two other Arbour employees. Regier confirmed that he did not

notice operations or technical people at Arbour, such as would typically be associated with a

company engaged in oil and gas activities.

[433] Expedia also provided Arbour's office administrative and reception services, as well as

investor relations services. Morice confirmed that Expedia's investor relations activities did not

involve assistance with any of Arbour's fundraising activities or soliciting investors; rather its

assistance was limited to answering telephone inquiries from investors and processing investor

subscription agreements as they came into Arbour.

[434] Arbour had an oral agreement to pay Expedia 1% of the money raised under the offering

memoranda for the administrative and investor relations services it provided to Arbour. Morice

explained why that arrangement was verbal:

And, you know, that was -- like, we didn't know how much money would come in at that time, so

it was always -- the reason [the contract between Arbour and Expedia] was oral is that we

understood we would have to revisit that depending on the amount of service and the amount of

money raised, and at the end of the day we felt it was reasonable service. And if you want support

for any of the people that worked there and how much they should have been paid and that, it

would be good value for what we actually paid.

[435] In 2005 Arbour paid Expedia approximately $257 000 for these services.

[436] As discussed earlier, the sole shareholder and director of Expedia was Verbeem, Brost's

stepson. Morice explained that Brost had made the arrangements with Expedia before Morice

was hired, so that the Arbour and Expedia relationship "was basically set up" by the time Morice

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got to Arbour. Regier performed accounting services for Expedia for approximately two years –

from approximately early 2004. During Regier's time at Expedia, Brost conducted all of Regier's

performance reviews. Regier said that Expedia was "indirectly" controlled by Brost and

confirmed that Brost had arranged for Arbour to retain Expedia to provide administrative

services to it. One of the investor witnesses, who also had been hired by Brost to work at

Expedia, said that Expedia "was the work company for the IFFL".

[437] We conclude that is reasonable to infer from these facts that Brost was responsible for

retaining Expedia (controlled by Brost) to provide administrative services to Arbour, for which

services Expedia (and, indirectly, Brost and his associates) received handsome compensation.

Brost exerted this control despite not being an employee, officer or director of Arbour. We also

conclude that Brost wanted the arrangement between Arbour and Expedia to be verbal. We so

find.

(b) De-listing Arbour Common Shares

[438] Effective 17 June 2004 the Exchange suspended Arbour common shares from trading on

the Exchange pending the Exchange's review of certain of Arbour's financial transactions and

agreements for compliance with Exchange requirements.

[439] Effective 21 July 2004 Arbour common shares were, as requested by Arbour, de-listed

from the Exchange. The evidence suggests that Arbour requested that de-listing to avoid having

to answer questions being asked of it by the Exchange. Arbour common shares then continued

to trade on the CNQ.

(c) COREL and TRL

[440] In the summer of 2003 and approximately one year before Arbour's first advance of

money to Merendon, Monkman introduced Sorenson to the TRL technology, which was

apparently an additive that removed bitumen from oil sands. Monkman gave Sorenson a

demonstration of the TRL product in his Calgary office. Sorenson, with his basic knowledge of

oil sands activity in Athabasca, said he was very impressed. At the time, TRL had yet to be

incorporated. Sorenson testified that Monkman, Page and McIntyre planned to incorporate TRL

(and COREL) with Merendon and the three companies controlled by Monkman, Page and

McIntyre each becoming a 25% shareholder of TRL. We find that Sorenson was also involved

in that decision and in instructing Strashok to incorporate those entities. On 14 August 2003,

Merendon subscribed for and agreed to purchase one million TRL Class A common shares

("TRL Shares") for an aggregate price of $100, which was 25% of the issued and outstanding

TRL Shares.

[441] Monkman advised Sorenson that he and Page had contracted with ARC to perform a

study on the TRL product. Sorenson said that a confidentiality agreement prevented him from

talking to ARC about the ARC study until it was completed.

[442] COREL – which, as noted, was planned by the four TRL parties at approximately the

same time – was to be the licensed entity for TRL. COREL's principal asset was its license to

sell the TRL technology in a specific territory. Merendon paid $52 for its shares in COREL.

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[443] Sorenson, on behalf of Merendon, agreed to fund the costs – estimated to be between

$500 000 and $1 million – of a prototype plant in Medicine Hat. According to Sorenson, that is

how Merendon was to "earn our 52 percent".

[444] Regier agreed that Sorenson and Brost – who were both "very, very keen on this

technology" – had "touted" it to him "as being very valuable". Regier believed in the TRL

technology.

(d) $10 Million Loan to Merendon Finalized

[445] Following the Draft Letter of Intent, a letter of intent ( the "Letter of Intent") was signed

by Sorenson – dated 5 July 2004 – and Morice – dated 9 July 2004. Putting this in context with

other events at Arbour, the first offering memorandum (detailed later in these reasons) was dated

14 July 2004, mere days after the Letter of Intent was signed by both parties.

[446] Sorenson said that Morice returned to Honduras around this time, which was when

Sorenson gave Morice the Letter of Intent signed by Sorenson. According to Sorenson, Morice

would not sign the Letter of Intent until he returned to Calgary and discussed it with Skeith.

While Morice did not dispute signing the Letter of Intent, he said that he first met Sorenson

"formally" regarding the plan for Arbour to loan money to Merendon at the Calgary Stampede in

2004, which would have been around the time the Letter of Intent is dated. Morice did not

mention that he had received the Letter of Intent from Sorenson in Honduras. Morice did note

that "it was obvious [at the time he met Sorenson about the loan] that Milowe and Gary had a

very integrated business relationship and kind of worked as a team it seemed to me".

[447] The Letter of Intent, which was to form the basis for a formal agreement between the

parties, provided for Arbour to lend Merendon $10 million – described as a "funding loan". The

$10 Million Loan was to bear interest at a rate of 3.5% the first year, escalating by 0.05% per

year after the first year and was to have a term of 10 years. Pursuant to the terms of the Letter of

Intent, Arbour had until 15 October 2004 to provide Merendon with at least $1 million, and the

remaining $9 million was to be paid to Merendon by no later than 31 December 2004. The

Letter of Intent provided a brief description of Merendon, some its subsidiaries and their

activities.

[448] The Letter of Intent also provided Arbour with the option to purchase 5% of the "Oil

Sands Recovery Patent in common shares of the Corporation holding the patent" (presumably

referring to TRL) in exchange for the principal balance of the loan plus accrued interest, if any,

and the issuance of 5 million Arbour common shares. Therefore, this option valued 5% of TRL

at $10 million (plus accrued interest), plus the value of 5 million Arbour common shares –

although Merendon had paid $100 for 25% of TRL approximately one year earlier. In the

Morice Interview, Morice stated that Arbour wanted to see a report from ARC before putting a

value of $10 million on 5% of the TRL technology (we note he did not do so). If the option were

exercised, all voting rights attaching to the TRL Shares would remain with Merendon "for the

life of the license and the patent".

[449] The Letter of Intent also provided "a general overview of the Alberta Tarsands Project in

which Merendon has a significant interest and in which Arbour has indicated it would like to

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participate" (emphasis in original). The general overview stated that Merendon and its

associates owned two Alberta corporations "which were created for the sole purposes of realizing

on the value of a process to enhance Tarsands Oil Recovery and to engage in the process to

reclean discharged product by various operational activities in this industry". It also stated that

the application process had been patented and that ARC had "conducted a very detailed testing

and evaluation process", concluding that the TRL process worked beyond the current

expectations and that:

. . . It was estimated in reporting that 1% (percentage) point increase in the industry by the process

translated too [sic] $1.000,000,000 [sic] to the project bottom line profits.

. . . The Government of Alberta currently states revenues from royalties at $8,000,000,000 . . . .

Therefore it would not be unreasonable to enter into specific agreements, now, under negotiation

to estimate a sale of only the Canadian patent to a specific license authority at a cost of not less

than 10% of current revenues per year over a (5) year acquisition.

. . .

[450] With respect to Merendon's and its associates' "Canadian Tarsands Oil Recovery Ltd",

the general overview in the Letter of Intent stated one industry estimate of recovery of oil from

cleaning as " not less then [sic] 1,000 barrels per day at start-up".

[451] In accordance with the Letter of Intent, Arbour advanced $10 million to Merendon.

Arbour's first payment to Merendon of $210 000 was paid on 27 July 2004 and its last payment

of $690 000 was made on 8 December 2004, even though no written agreement formalizing the

Letter of Intent had been executed by the parties.

[452] A formal loan agreement evidencing Arbour's $10 Million Loan to Merendon, "to be

used for working capital", was not executed until approximately May 2005 (the "$10 Million

Loan Agreement"), well after the entire $10 million had been advanced to Merendon – the last

advance, as noted, occurred on 8 December 2004. The $10 Million Loan Agreement was

prepared in response to a request by Arbour's auditors and was backdated to 10 July 2004 –

before the date of Arbour's first offering memorandum. When asked about the delay in signing

the $10 Million Loan Agreement, Sorenson testified that it was Arbour's responsibility to prepare

a formal agreement and that Arbour "just didn't do it", although Sorenson said he reminded

Morice periodically that he should formalize the arrangement.

[453] Morice offered the following explanation as to why Arbour advanced the entire

$10 Million Loan to Merendon before it had executed a formal agreement:

Q Under what terms were those funds advanced?

A Well, what I indicated was those funds were advanced so that Merendon would help us

close international -- well, oil and gas deals, either TRL or international oil and gas deals.

That was the agreement.

Q They were advanced under the same verbal-agreement conditions as the $45 million loan;

is that correct?

A. Right.

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[454] Morice elaborated. Merendon, a mining exploration and development company, was

being relied on by Arbour to use its influence to assist Arbour in acquiring international oil and

gas assets. Morice understood Merendon to be a $2 billion company that could access funds

whenever it needed. Therefore, he was comfortable that Merendon, even though it for some

reason needed to borrow $10 million from Arbour, would honour its verbal commitment to

provide Arbour with the money when it needed the money to "close the deals we chose".

[455] Weis acknowledged that Arbour advanced the loan money based on a "handshake

agreement" with Sorenson. Sorenson disagreed with the suggestion that that the $10 Million

Loan to Merendon was completed on a "handshake", pointing to the Letter of Intent that had

been executed by Merendon and Arbour at approximately the same time as the first advance of

money to Merendon. Sorenson assumed that Arbour had the appropriate approvals in place to

enter into the Letter of Intent and to act as it did.

[456] Until execution of the $10 Million Loan Agreement, no security was contemplated for

Arbour's $10 Million Loan to Merendon. Section 6.1 of the $10 Million Loan Agreement

provided:

As continuing collateral security for all Indebtedness of [Merendon] to [Arbour] from time to time

pursuant to this Agreement, including due performance, payment and satisfaction of all its

obligations and Indebtedness hereunder, [Merendon] shall execute and deliver to [Arbour] such

security on the shares of [TRL] as [Arbour] may, from time to time, request.

[457] In fact, the $10 Million Loan remained unsecured. Although section 6.1 of the

$10 Million Loan Agreement placed the onus on Arbour to request the security from Merendon,

no request was made until after Arbour's auditors apparently requested it do so. In a 10 May

2005 letter from Hobbs to Ken Sorensen, the then-president of Merendon, Merendon was

requested to deliver the security provided for in section 6.1 of the $10 Million Loan Agreement

by placing all of Merendon's TRL Shares – 25% of the issued and outstanding TRL Shares – in

trust with Skeith. The letter also requested that confirmation of the delivery be sent to Arbour's

auditors.

[458] No valuation of TRL had been obtained or requested by Arbour when it agreed to accept

TRL shares as security for its $10 Million Loan. (Ultimately Arbour lost the right to this security

when it purchased Merendon's interest in TRL.)

[459] Hobbs in the Hobbs Interview confirmed that no valuation of the TRL Shares had been

done at that time. She said that she determined the value to be assigned to them based on

"[d]iscussions with -- with Dennis Morice and the discussions that he had with shareholders of

Tar Sands".

[460] Morice, acknowledged that he had no specific education or experience in evaluating oil

sands technology or technology for recovering bitumen from oil sands. He had attended pilot

projects being run by the other three partners in TRL – Monkman, Page and McIntyre – which he

said gave him "comfort with regard to the value of the technology". Other than those

attendances and receiving from the TRL principals some notes and papers (targets for revenue

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projections and other estimates as to expected volumes when deployed commercially), Arbour

management apparently did little – or nothing – else to verify whether the 5% interest in TRL

provided by Merendon was security enough to support the $10 Million Loan.

[461] At the time Arbour arranged to accept 5% of Merendon's TRL Shares as security for the

$10 Million Loan, all of Merendon's assets had already been pledged as security for a loan for

"variable amounts of capital" to Merendon by SGD. Arbour's director Wigmore, a former

director and president of Merendon, was aware of the SGD loan to Merendon and the general

security agreement that Merendon had executed in favour of SGD.

[462] The evidence is inconsistent as to why the decision was made to cause Arbour to loan

money to Merendon.

[463] Morice in the Morice Interview said that the intent was for Arbour to make short-term

investments and park the money raised until such time as management had identified appropriate

oil and gas ventures to acquire. Arbour decided that its "short-term" investment would be to loan

$10 million to Merendon for a time on the understanding that Sorenson would use his contacts to

locate international oil and gas opportunities for Arbour.

[464] Sorenson denied that was the basis for the $10 Million Loan. He testified that he had no

"influence or clout in the international oil business world", so could not have helped Arbour in

that way. He also stated that he did not make such an offer, nor was the subject ever discussed

between him and Morice. Sorenson testified that Arbour took the position that the $10 Million

Loan was not actually a loan but "a deposit on the acquisition [by Arbour] of TRL".

[465] Weis explained that Arbour loaned the money to Merendon partly to acquire TRL. He

also explained that he and Morice negotiated a loan with an option because:

A . . . we didn't know enough at the time for sure if, if it was anywhere close to the

[$]10 million, it looked like it; but, again, it was a very short window.

Q Why was it a short window?

A Well, [Sorenson] said if you want to get yourself in.

Q So, and he wanted a loan, he didn't want to actually sell you those shares?

A We didn't want a loan right away because we weren't sure what the value of the shares,

that was more our option than his option.

Q Okay. So you suggested loaning the money to Merendon?

A A loan convertible to an option.

Q Okay.

A That's just for our own protection rather than his obviously.

[466] Regier testified as to his understanding of the $10 Million Loan and Arbour's purchase of

the TRL technology:

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. . . some of the first monies that went from Arbour to Merendon were classified as a loan, and that

there may have been some issues with an auditor on disclosure and books and so they were

looking for -- or they needed some other justification, if you will, to -- for that money that was

sent to Merendon.

[This understanding was from] discussions that [Brost] and I had, and I believe I may have, in

passing, had some discussions with Carol Hobbs about where Arbour was at.

[467] In our view, Morice described the scenario best when he noted that "it was expected there

would be deals involving the contacts or assets of Merendon, so that [the $10 Million Loan] was

one of the options". We find it is more likely than not that, whatever the stated reasons, the real

reason for making the $10 Million Loan was to get money to Merendon and into the hands of

Sorenson, some of which would then be passed on to other Brost/Sorenson Entities. We so find.

[468] Merendon did make some interest payments on the $10 Million Loan. On 3 May 2005,

further linking Brost with Arbour as well as with Merendon and Sorenson, Arbour's Hobbs sent

Merendon's Bierwirth an email showing that Brost and Sorenson had been discussing the interest

payments from Merendon to Arbour for the $10 Million Loan: "Milo has just spoken with Gary

regarding the payment of the accrued interest on the loan to the end of Dec 31, 2004". Brost was

not a director or officer of Arbour at the time of that email (or at any other time). Sorenson

claimed not to recall Brost speaking with Sorenson about this matter. We do not believe

Sorenson on this point.

(e) $45 Million Loan to Merendon

[469] Between February and the end of November 2005, Arbour advanced $28 663 456.95 to

Merendon. The first advance of $900 000 was paid to Merendon on 1 February 2005. As was

the case with the $10 Million Loan, Arbour's payment of slightly more than $28.6 million to

Merendon remained unsecured and without formal documentation until well after that sum had

been advanced. The second and third offering memoranda, dated 19 January 2005 and

26 September 2005, respectively, were used to raise this money.

[470] Morice explained that these advances were initially based on a "verbal agreement" with

Sorenson and were once again made on the condition that Sorenson would use his influence to

assist Arbour in acquiring international oil and gas assets, and "the amount outstanding would be

offset against those purchases, or cash would be generated from Merendon to make those

purchases".

[471] Weis referred to these advances as another "handshake" agreement with Sorenson.

Hobbs also confirmed this was a verbal agreement.

[472] Wigmore said that Arbour made what was later papered as a $45 million loan (the

"$45 Million Loan") to Merendon because the intention was to earn a higher rate of interest than

Arbour could obtain locally, invest that money in international oil and gas ventures, and hope to

buy TRL. Wigmore said that because he had experience with Merendon and knew the people

Arbour was dealing with, he was satisfied that the money was safely invested. He viewed

Merendon as a "very able company" with "large assets" that had done well with no debt and the

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"size of our loan would be an insignificant liability to them. And they had a history, when I was

involved with them, of paying and meeting their commitments."

[473] According to Sorenson, Morice approached him, indicating that Arbour was still

interested in buying TRL. Sorenson advised Morice that the purchase price for Merendon's 25%

interest in TRL was $50 million – Arbour was to continue advancing money towards that

purchase price and when $50 million had been received, Merendon would sell its interest in TRL

to Arbour. Arbour continued to advance money in 2005, although no agreement was in place to

document the arrangement. Sorenson said that Morice was asked repeatedly to provide the

documentation, but he never responded. Sorenson eventually instructed Blakey to see to drafting

and having the appropriate documentation executed, by which time Merendon had already

received at least 50% of the asking purchase price. According to Sorenson, Morice wanted the

arrangement classified as a loan even though the purpose of the advances was to purchase TRL

from Merendon. Sorenson said that Morice told him that Arbour had received a legal opinion

that if the arrangement were documented as a loan then Arbour would not have to provide

normal public company disclosure.

[474] In early 2006 a Loan Agreement with an effective date of 1 January 2005 was executed

by Merendon and Arbour (the "$45 Million Loan Agreement").

[475] The $45 Million Loan Agreement provided for Arbour to lend $45 million to Merendon

to be used for working capital with a maturity date of 31 December 2015. The security for the

money advanced under the $45 Million Loan Agreement was a guarantee and general security

agreement from Merendon Ecuador, an offshore subsidiary of Merendon.

[476] According to Sorenson, it was Morice who requested security specifically over Merendon

Ecuador because he wanted eventually to move into the gold business. Sorenson confirmed that,

although the general security agreement was executed by Sorenson (as president of Merendon

Ecuador), Arbour never followed through and registered the general security agreement in

Ecuador. Sorenson stated that he had advised Morice on a number of occasions that Arbour

should register the security in Ecuador.

[477] According to Sorenson, Merendon had obtained a release from SGD relating to the

security that Merendon had given SGD (which was in place at the time of the $10 Million Loan

Agreement and would have included Merendon's interest in Merendon Ecuador). The 2005

SGD/Merendon/Eiger Loan Agreement was also in place by the time the $45 Million Loan

Agreement was executed.

[478] In evidence were the financial statements, including an auditor's report, for Merendon

Ecuador's 2005 financial year ("Merendon Ecuador's 2005 Financial Statements"). The total

assets shown in Merendon Ecuador's 2005 Financial Statements (as at 31 December 2005) were

US$3 295 470.92 (current assets of US$286 839.83), with total liabilities of US$3 294 470.92

(current liabilities of US$218 372.19 and shareholders' equity of US$1000). There was no

income statement. The Cash Flows Statement showed no cash flow from operating activities and

a negative "Net Effect Provided by Operating Activities" of US$1 171 026.88, with

US$1 611 994.48 provided by "Loans from Shareholders". Note 3 to Merendon Ecuador's 2005

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Financial Statements stated that the 31 December 2005 accounts receivable (US$46 257.76)

"refer[s] to 100% of gold and silver sales made to related company Merendon de Honduras

S.A.". Note 12 stated that the long-term liability on the balance sheet of US$3 076 098.73 in

Loans from Shareholders "refers to financing made by Merendon Mining Corporation, to execute

of operations; the agreement of this loans are in procedure. Due to this fact, we do not know

about guarantees, interest rates and time limit." (reproduced verbatim).

[479] Merendon Ecuador's major asset was the Tena Concessions, purchased quite recently for

approximately $800 000. Note 15 to Merendon Ecuador's 2005 Financial Statements disclosed

that: (reproduced verbatim):

On June 10, 2004 Hampton Courtresources Ecuador S.A. and Merendon del Ecuador S.A., signed

the "Agreement to transfer Mining Rights, Other Assets and Revenues"; and made transfer of

assets and 10 mining concessions from Hampton Courtresources Ecuador S.A., to Merendon

Ecuador S.A., assets value was US$ 428.478,65, distributed as follows: Accounts receivable

US$ 2.832,90; Suppliers Advances US$ 40.000; Inventory US$ 67.429,91, and, net fixed assets

US$ 318.215,84. Additionally, Merendon of Ecuador S.A. assumes to pay to suppliers of

Hampton an approximated amount of US$ 787.299,15, financing though Merendon Mining

Corporation, because of this, value of concessions is US$ 358.820,25, and the parts have to give

compliment to all agreement dispositions.

[480] Sorenson testified that, based on information he had, he believed that Merendon Ecuador

was worth more than the $45 million maximum it was to secure under the $45 Million Loan

Agreement.

[481] Sorenson said that the $28.6 million forwarded to Merendon under that agreement was

used for development and operations. Wigmore's understanding was that Merendon was going

to use the money advanced under the $45 Million Loan Agreement for its operations and that the

money would not be held in cash. However, Wigmore believed that Merendon held that much or

more in cash or in gold reserves, and had the ability to use that in the event Arbour needed the

money for a different offshore investment.

[482] As with TRL, other than accepting Sorenson's assertions of value and some geological

reports requested by Morice, Arbour's management seemingly did little, if any, due diligence to

assess the value of Merendon Ecuador and, in particular, the value of the Tena Concessions.

[483] In fact, Arbour's management was aware the security provided by Merendon did not

support the $45 Million Loan.

[484] Hobbs stated that there was partial security for the $45 Million Loan, as suggested by the

"Hampton Court report". However, she agreed that it did not substantiate the full value of the

$45 Million Loan, and there was no other security for that loan. Hobbs expressed that she had

not been comfortable with the insufficient security and had discussed the matter with Morice.

She said that Morice told her that was all the security they were able to get from Merendon and

confirmed to her that the loan was only partially secured.

[485] Wigmore indicated that he knew very little about Merendon Ecuador and the Tena

Concessions (he had no prior knowledge from his time as president of Merendon). However, he

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stated that initial verbal representations made by Merendon assured Arbour management that the

Tena Concessions were very valuable. Contrary to that position, subsequent information

obtained from an appraisal conducted on the Tena Concessions indicated that their value "would

not equal the forty-five million in anybody's -- in my mind", but that did not matter because the

loan was based "on the old princip[le], know the people you're dealing with" and he "trusted

Merendon". Wigmore also acknowledged that he did not know what was done to confirm that

Merendon owned the Tena Concessions.

[486] Regarding the lack of security requested from Merendon for the $45 Million Loan,

Morice engaged in this discussion in the Morice Interview:

Q Did you ask for additional security on the loan?

A There was continued ongoing discussion about security, but the reality is all of the

deposits were in countries likes [sic] Honduras and Venezuela and Peru and Ecuador, so

having copious paper wouldn't necessarily mean much anyway. It was an issue of trust

and our final judgment as to whether or not we trusted the international network, and we

did.

. . .

Q Why didn't you paper or document these transactions at the time the money was

advanced to Merendon?

A You know, essentially it, it was a trust situation, the, the assets of Merendon are located

in places like Honduras and Ecuador and Peru and Venezuela, so in terms of collecting,

we could have had the greatest security in the world and not been able to do anything

with it, so that's probably a feeble excuse, but the bottom line is we were busy and

everything started, and, and, you know, it was a challenge for us just to keep up with the

day-to-day stuff.

[487] Weis had reviewed financial statements, apparently the 2003 Merendon Financial

Statements. When asked whether Merendon was a profitable company, he stated that, if

profitable, it was only by a "very insignificant" amount. In 2004 Merendon had $0 revenue and

in 2005 it had revenue of $9286, with an accumulated deficit of $23 072 103 at the 31 December

2005 year end.

(f) Purchase of COREL

[488] We find that Brost introduced the COREL opportunity to Morice and advised him how

Arbour could acquire COREL. Brost in the Brost Interview described it as follows:

Q What was your response when [Morice] asked you if COREL could be acquired?

A I suggested to him that, based on my knowledge of the principals and the conversations -

and my conversations were restricted to Jack Monkman and Gary Sorenson, Gary

Sorenson representing the interests of Merendon Mining Canada - that they were not

interested in selling and that, if he approached them directly, the costs would be

astronomical.

Q Did you provide him with any advice as to how he may approach them in another way?

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A I suggested that if he struck a relationship with Merendon and was financially involved

with Merendon, that he could probably back door this technology far more successfully

than the front door.

Q What do you mean by "financially involved with Merendon"?

A If there was financial transaction -- it -- it ultimately became the initial loan that Arbour

wound up doing to Merendon Mining Canada. That financial commitment created a

relationship. That relationship, [Morice] was eventually, when the timing was right, to

utilize -- utilize later to get COREL at an extremely good price.

Q So you suggested to [Morice] that he should become financially involved in Merendon in

order to acquire this technology.

A I thought it was a good idea.

Q And you were the one that brought the technology to his attention?

A In this case, I believe so.

[489] When asked why Merendon and Monkman (who Brost said initially had no interest in

selling COREL) had decided to sell COREL to Arbour, Brost responded:

I think that is simply an issue of cash flow. Before there was a lender/borrower relationship

between Arbour and Merendon, Merendon has this terrific project. Of course it's gonna need

capital to develop. It's got its own business life cycle that it's going down we called COREL.

After a year, two years, whatever the time period was, Merendon of course is developing other

interests which have come up to be particularly positive. I think at that time they outshone

perhaps the potential of COREL and were more receptive to settling some or all of their bill with

Arbour with the COREL sale and acquisition by Arbour. So I think -- I simply think that the

circumstances of Merendon shifted, based on project potential, other than COREL. I think that

opened the door for [Morice] to get -- to get a deal.

[490] As envisioned by Brost, Arbour and Morice made the $10 Million Loan and the

$45 Million Loan to Merendon. Shortly thereafter, as predicted by Brost, Arbour successfully

acquired COREL (which included all of Merendon's interest) and Merendon's 25% shareholding

in TRL.

[491] Sorenson testified that Monkman advised him that he had an interested buyer for

COREL; Sorenson was surprised to learn it was Morice and Arbour. According to Sorenson,

Monkman negotiated the COREL sale with Morice and Brost – Sorenson was not involved.

[492] Despite Sorenson's assertion of non-involvement, on 18 October 2004 Sorenson received

a written offer from Arbour to purchase Merendon's interest in COREL for $2.3 million and

2 million Arbour common shares valued at $1 per common share. Sorenson, on behalf of

Merendon, agreed to Arbour's offer and dated his acceptance 25 November 2004. Further, in a

letter dated 1 April 2005, Sorenson, on behalf of Merendon, wrote to Morice at Arbour

requesting that the closing of the COREL sale be effective 2 January 2005 because, according to

Sorenson, the other three shareholders – Monkman, Page and McIntyre – preferred to have the

sale recognized in 2005 rather than 2004 for taxation purposes. In that correspondence Sorenson

also referenced a 24 March 2005 meeting at Merendon's Calgary boardroom at which "all parties

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agreed that Merendon would acquire the rights [the royalties] to the licensing agreement" and

confirmed that Merendon had reached an agreement with the other three TRL shareholders for its

entitlement to the royalty of "30% net profits". The 1 April 2005 letter concluded with the

following offer to Arbour:

Accordingly, and pursuant to our meeting of March 24

th 2005 referred to herein Merendon is

further by this notice offering to Arbour the opportunity to purchase this right of 30% net profits

of COREL so as to give Arbour 100% of net profits.

This as both Arbour/Merendon agreed would enhance Arbour's position dramatically for future

earnings.

Therefore Merendon will await Arbour's proposal to acquire these rights.

. . .

[493] On 11 June 2005 Morice wrote Sorenson at Merendon following up on Sorenson's

"willingness to consolidate the interest with respect to the forward flowing royalty of our

acquisition of [COREL]". Morice advised that Arbour's management had been focused on

completing its "required audit" and having its shares resume trading on the CNQ, which occurred

on 9 June 2005. Morice continued by stating that this had now "cleared the scrutiny of outside

parties" and requesting Sorenson to consider the possibility of Arbour purchasing Merendon's

"forward flowing royalty" in COREL.

[494] Considering the whole of the evidence, we conclude that Sorenson was not being truthful

when he claimed to have had little, or no, involvement with the negotiation of the sale of

COREL to Arbour.

[495] Arbour ultimately purchased COREL from four parties: Merendon; Monkman

Consulting; 385765; and 1061463 (the same parties and principals who owned TRL). A Share

Purchase Agreement documenting the sale of COREL to Arbour was dated 1 January 2005 (the

"COREL Share Purchase Agreement"); it was not executed until late May 2005 at the earliest

and perhaps not until May 2006.

[496] The COREL Share Purchase Agreement provided for the sale of all the issued and

outstanding shares (10 000) of COREL to Arbour for $10.3 million, for which the four COREL

vendors received $5.3 million and five million Arbour common shares valued at $1 per common

share. According to Sorenson, Merendon should have received 52% of the purchase price, but

he agreed to Monkman's proposal that Monkman, McIntyre and Page would each receive

$1 million and 1 million Arbour shares, with the balance of the money and shares – $2.3 million

and 2 million Arbour shares – to Merendon. In return Merendon would be entitled to receive the

first $1 million on any royalties earned.

[497] Arbour paid $2.76 million towards the purchase price of COREL in 2005 and a further

$1.344 million in the first three months of 2006.

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[498] The assets of COREL sold to Arbour in 2005 were its license agreement with TRL and

physical assets consisting of vessels, a building, tanks, small tools and office equipment (with a

value of slightly more than $94 000). TRL's balance sheets showed:

total assets of $49 238.91; total liabilities of $342 957.42 (including a

shareholder's loan to Merendon of $347 771.93); and total equity of -$293 718.51

as of 31 August 2004;



as of 31 August 2005; and



as of 30 June 2006.

[499] All TRL profit and loss statements showed negative net income:

-$293 718.51 for August 2003 through August 2004 (with royalty income of

$42 800);

-$82 992.19 for September 2004 through August 2005 (with no income); and

-$139 047.60 for September 2005 through June 2006 (with interest income of

$42.57).

[500] The "TRL/COREL License Agreement", dated 14 August 2003 between TRL as licensor

and COREL as licensee, had a five-year term with renewal provisions. The technology was

described in the COREL Share Purchase Agreement as "relating to the licensing of certain patent

pending processes and a patent pending vessel for the cleaning of processed sands in Alberta,

including therein the supply of all materials to utilize the processes and vessel from the licensor".

The original royalty was $10 per cubic metre of processed material; that was changed to 30% of

net profits in a 1 January 2005 amendment.

[501] In the COREL Share Purchase Agreement, the vendors represented and warranted that

COREL held the TRL/COREL License Agreement free of all claims. The vendors also

represented the following:

(g) The products, processes and systems subject of the [L]icense Agreement have been under

review by the Alberta Research Council for several years and have satisfied all expectations

causing the Vendors to believe that the Province of Alberta may soon mandate the process in order

to deal with a growing environmental problem in extracting products from the produced oil sands.

(h) The project has reached the point where a commercial plant must be built in order to

demonstrate that large volumes of material can be processed at an acceptable cost to the

Government and oil industry. The Vendors represent that a plant capable of processing 100 cubic

meters per day can be built for less than $500,000 and that the initial full scale commercial unit is

substantially complete.

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[502] When asked to explain the dramatic increase in value between the price Merendon paid

for its interest in COREL – $52 – and the price paid by Arbour a little more than a year later –

$10.3 million – Sorenson said that they knew more about the technology and its application and

had other people review the technology. Sorenson said that Monkman had set the COREL sale

price.

[503] Ken Sorensen stated that he inquired of others at Merendon "as to why the sale value for

shares of [COREL] is different than the balance sheet value on its balance sheet before the sale

of the shares". Sorensen told Staff investigators in a 23 March 2007 letter from Blakey:

Information from the developers of the patented process currently held by [TRL] indicated that

there was huge potential for using this process to clean processed sands. Processed sands are

produced by the current process to extract oil from the bitumen deposits in Northern Alberta. The

sands are not fully cleansed and are stored. This accumulation slowly becomes a major concern to

the issue of environmental pollution. Processes then available made the cleaning of processed

sands an expensive undertaking.

COREL held a license to clean processed sands using the process developed by [TRL]. The

process represented an efficient and less costly means to clean polluted sands which were and

continue to be an ecological problem. Should it be marketed properly, then COREL had a much

greater potential to create profits than was represented by the investment it had made in obtaining

the license.

The Alberta [R]esearch Council issued a report believed to be favo[u]rable to the commercial use

of the patented process.

[TRL] had built an experimental processing plant which demonstrated the efficiency of the

process.

These factors were considered to enhance the future value of the process, which could be used to

clean discarded but polluted sands in the Alberta oil sands. As the holder of a license to use this

process in Alberta it was believed that COREL could develop into a highly successful corporation.

The above factors led Merendon to believe the value of COREL was far greater than the amount it

had invested and stated on its balance sheet. The final sale price was derived through negotiation

by another principal of COREL.

[504] As was the case with TRL, Arbour had obtained no valuation of COREL before

purchasing it. Minutes of a 21 July 2006 Arbour board of directors' meeting revealed that the

issue of obtaining a valuation was still under discussion at that time – past the date of the

purchase.

[505] Weis confirmed that Arbour had not hired an outside business evaluator to value COREL

at the time, but determined COREL's $10.3 million sale price from looking at the technology

itself and a cash flow analysis prepared by Hobbs, which he reviewed. Weis advised Staff

during his interview that Arbour was in the process of obtaining a valuation of COREL from an

independent evaluator. He suggested that the Staff investigator wait for that valuation to confirm

the value of COREL. As of the date of the Merits Hearing, no valuation of COREL had been

obtained.

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(g) Purchase of TRL

[506] Arbour eventually reached an agreement with Merendon to purchase Merendon's 25%

interest in TRL, which appeared to have been an amendment or revision to the $45 Million Loan

Agreement.

[507] In correspondence dated 15 March 2006, Blakey, as legal counsel to Merendon, wrote

Hobbs of Arbour confirming her advice that the parties had agreed to an amendment to the

$45 Million Loan Agreement and correcting a number of accounting entries, arriving at a revised

total of advances made to Merendon of $28 663 457.45 as at 29 November 2005.

[508] In correspondence dated 11 July 2006 Morice, on behalf of Arbour, apologized to

Sorenson for the delay caused by Arbour's "regulatory and audit issues". Morice advised

Sorenson that although the Arbour board of directors had not yet approved the agreement they

had negotiated at a meeting on 17 January 2006, Arbour was still interested in completing the

transaction. Morice also advised Sorenson that:

[T]he final deal must produce assets to Arbour with value and/or collect[a]bility that is satisfactory

to our auditor and regulators. At the present time, they appear to believe that the purpose of

Arbour is to flow cash and assets to Merendon. A further deal, like the one we are contemplating,

would only compound our problem.

[509] In an undated email from Morice to Blakey (apparently sent sometime between

5 September 2006 and 11 September 2006), Morice advised Blakey that the Arbour board of

directors was ready to execute a share purchase agreement and not the non-binding letter of

intent provided by Blakey. Further, Morice advised Blakey that Arbour was prepared to put a

minimum price – $20 to 25 million – in a price adjustment clause: "if the valuation comes in

below [that minimum] we will take our chances justifying our decision". In response, Sorenson

emailed Blakey on 11 September 2006 to instruct him that: Morice's suggestion was not what

had been negotiated between Morice and Merendon; the value of the transaction was "Not

Negotiable and not depend[e]nt on any evaluation done by Arbour"; and US$38 million (of the

$50 million Sorenson said TRL would be sold for) was "to be applied against all outstanding

loans", with the remaining "$12,000,000 as a receivable note". Sorenson also noted that "Arbour

has made the business decision to acquire this interest based on it (Arbour's) [sic] evaluation of

acquiring 'Corel' a corporation who is only licensed by 'TRL' to 'clean produced sands' not tar

sands".

[510] A letter of intent dated 19 September 2006 (the "2006 Letter of Intent") was entered into

between Arbour and Merendon in which it was stated that Merendon and its principal

shareholder and creditor, Eiger, "agreed to continue the process to bring Arbour to a position

where it can acquire no less that 25% of the outstanding and issued shares of TRL". The 2006

Letter of Intent stated that: Arbour would complete an independent evaluation of TRL;

Merendon agreed to assist in the evaluation; Merendon had a shareholder loan to TRL of

approximately $500 000; and Merendon had the right to collect the first $1 million from any

royalty income payable to TRL.

[511] On 20 March 2007 Arbour completed its acquisition of Merendon's 25% shareholdings in

TRL. We note that this was approximately 6 weeks after the IBG Advisory Committee decided

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at the February IBG Meeting that Arbour's president was to finalize the TRL transaction or be

replaced. Arbour's president, Morice, clearly received the message and did as he was told. We

so find.

[512] A Share Purchase Agreement between Merendon as vendor and Arbour as purchaser was

then made effective 1 January 2006 (the" TRL Share Purchase Agreement").

[513] As a result of the sale to Arbour of Merendon's 25% stake in TRL, Merendon did not

have to repay Arbour the funds advanced to Merendon under the $45 Million Loan Agreement –

instead, that amount (set out in the TRL Share Purchase Agreement as $28 317 617) was

converted into the purchase price of Merendon's TRL Shares. Further, Merendon Ecuador was

released from its guarantee and general security agreement.

[514] After completing the TRL Share Purchase Agreement, Arbour also lost its right to the

security set out in the $10 Million Loan Agreement for the $10 Million Loan. The TRL Share

Purchase Agreement specifically contemplated that loss, but it was also a natural outcome

because Arbour was acquiring Merendon's TRL Shares. The result was that, after that date,

Arbour no longer had the right to any security for the $10 Million Loan.

[515] Arbour's management was aware that this placed Arbour in a potentially tenuous

position. Morice – although he previously agreed to accept Merendon's offshore assets as

security – expressed the view that Arbour's ability to enforce security against Merendon's

offshore assets was questionable. Morice stated:

Well, again, it was a question of collectability should any default occur. This was an insistence of

Merendon, and we, you know, we did wrestle with that quite a bit and knew that it would cause

some concerns, but the reality was we didn't see an ability to enforce security anyway, so all of

their assets are outside of Canada.

We were acquiring everything they had in Canada, so, so we didn't see, you know, the added -- the

security we were holding as enforceable, and essentially we wanted to close off our relationship

with them as quickly, as neatly as we could, and we do still have the [$]10 million to deal with,

but, you know, we'll work towards that.

[516] The TRL Share Purchase Agreement provided for a purchase price adjustment. Arbour

was to hire an independent third party to provide a valuation of TRL Shares at closing – there

would be an upward adjustment of the purchase price of up to $50 million should the valuation

of TRL exceed the specified purchase price of $28 672 617 (less approximately $1.2 million for

a shareholder loan and royalty rights). However, the $28 672 617 (less the same amounts) would

not decrease if the valuation fell short of that price.

[517] Although the TRL Share Purchase Agreement called for a valuation of TRL, the

transaction concluded before Arbour obtained a valuation of TRL. (Even after the transaction

closed, Arbour did not complete a valuation – Morice stated that Arbour stopped answering the

valuator's questions.) Morice said that "as time went on, we had to close, . . . the [$28 million]

was the minimum Merendon would accept, and we decided to close to make sure that the deal

didn't fall apart". According to Morice Arbour management was prepared to "take [its] chances"

and proceed with the TRL purchase despite the absence of a completed valuation. It is important

#4155039v1

to reassert that this pressure to close – and the ultimate closing – occurred mere weeks after the

February IBG Meeting at which those present agreed to replace Morice as Arbour's president if

he did not finalize the TRL transaction.

[518] Because Arbour did not pursue a valuation, there was no rational or realistic basis for

choosing that particular purchase price, other than the amount outstanding under the $45 Million

Loan Agreement. Regier testified that the TRL purchase price of approximately $28 million was

determined as a means to justify, possibly for an auditor, the amount of money Arbour had given

Merendon.

[519] There is no evidence that Merendon ever pushed Arbour to complete the valuation of

TRL, even though, if the technology were as valuable as Sorenson touted and claimed to believe,

a positive valuation could have meant up to an approximately 80% increase in the purchase price

– from approximately $28 million to $50 million) – payable by Arbour to Merendon.

[520] There is evidence as to the uncertainty of the TRL technology and its value. For

example, as noted above, the Burgess DD Report provided to Brost and Sorenson in late 2005 as

SGD shareholders valued Merendon's 25% interest in TRL at cost ($500,000), but did not

explain the rationale for arriving at that value.

[521] One piece of information that both Merendon and Arbour had had regarding the value of

TRL was the November 2005 ARC Report. Minutes of a 21 July 2006 Arbour board of

directors' meeting stated that management had received the November 2005 ARC Report and

that management was to proceed with ACS Engineering to establish the value of both TRL and

COREL.

[522] The November 2005 ARC Report cautioned that the TRL technology for oil sands

development was very much in the experimental stage, apparently with limited application. The

November 2005 ARC Report also listed a number of outstanding issues still to be addressed,

most importantly, the technology's viability on a commercial or industrial scale. Chow testified

that even as of February 2010, the technology was still being evaluated and remained at the

experimental stage because he needed "to understand how it works before you can get to a

commercial basis". Chow also acknowledged that ARC had not examined factors that might

affect commercial viability, including the cost of supply and transportation. Chow agreed that

his view in 2005 was that the TRL technology "should be tested on a larger scale to demonstrate

its feasibility", which would require a cost analysis of implementing and maintaining the

technology. Chow noted that experimental processes continued to the date of his testimony in

February 2010. Chow confirmed that he had never spoken to Morice or anyone else from

Arbour.

[523] Merendon also recognized uncertainties surrounding the value of the TRL technology. In

a 19 June 2006 letter (less than a year before the sale of Merendon's interest in TRL to Arbour)

signed by Gleason on behalf of Merendon (drafted by Blakey) to Monkman as president of TRL,

Gleason raised a number of concerns regarding TRL. First Gleason noted a representation,

relating to the COREL sale to Arbour, that TRL had a patented process and patented vessel;

however, no patent applications had been granted. A second concern expressed was that:

#4155039v1

. . . With the tar sands being developed using other processes, TRL has a limited window of

opportunity. The opportunity is time constrained. Developers will be reluctant to spend monies

on a TRL process once committed to another process. We consider it vital to have this process

commercially proven in a tar sands application or its value is negligible.

[524] Morice also admitted that Arbour was aware of significant uncertainties surrounding the

commercial viability of the TRL technology, but "a lot of this was based on trust".

(h) Arbour Caribbean

[525] As noted, Arbour Caribbean was incorporated on 15 November 2004 under the laws of

Barbados as a wholly-owned subsidiary of Arbour. For an unexplained reason, on 23 October

2006 Morice sent Blakey – Merendon's in-house counsel at the time – a copy of the

incorporation documents for Arbour Caribbean, indicating on the cover sheet that Morice was its

"President and Director".

[526] Arbour Caribbean was apparently established for tax planning purposes; it seems to have

conducted no business.

(i) Sedalia Transaction

[527] Arbour entered into a 25 January 2005 Participation Agreement with Arbour as

participant and Avalon Energy Ltd. ("Avalon") as grantor. Under that agreement, Arbour agreed

to pay 90% of the drilling costs in Avalon's development drilling program in the Sedalia area of

Alberta.

[528] In a news release announcing the transaction, Arbour stated that its planned budget for

the first of up to 8 shallow gas wells was approximately $175 000, future drilling dependent on

the success of this first well. It was also disclosed that Arbour would receive 63% of net revenue

before payout and 45% after payout. Drilling was to commence in the spring of 2005.

(j) Arbour US

[529] In 2005 Arbour established Arbour US. According to Arbour documents, Arbour US

merged with Biltmore Enterprises, Inc., a Nevada corporation. The merged entity took the name

of Arbour US.

[530] Arbour apparently intended to transfer to Arbour US all of its future-acquired technology

and oil and gas activity operated in the United States. Some of the documentation for this

transaction was in evidence, but was inconsistent and unclear.

(k) Myanmar Transaction

[531] The February IBG Minutes discuss Arbour's investment in the "Bengal Oil project". We

received some evidence on this project.

[532] Martyn introduced Arbour to a tentative deal involving a joint venture with a company

called Quad Energy Inc. ("Quad"). Martyn, a friend of Ken Nazar ("Nazar"), Quad's president,

proposed that Brost, Morice, Weis and he travel to Southeast Asia and meet with Nazar to

discuss a possible deal. Brost made the travel arrangements, and they met with Nazar.

#4155039v1

[533] Shortly after the trip, Bengal was incorporated with Martyn as president and Perma

Securities ("Perma") as a shareholder. Nazar, Quad's "owner", apparently partnered with Perma

on Bengal. Morice believed that Brost was a shareholder of Perma. The proposed transaction

seemingly involved Arbour acquiring all of the shares of Bengal. Blakey's handwritten notes of

a meeting between Blakey, Morice and Hobbs on 30 November 2006 recorded "Bengall [sic] O

& Gas", "Perma Securities in Belize", "Loan to Perma for its interest in Bengall [sic] – by

assignment" and "Dwayne Mart[y]n is Pres. of Bengall [sic]".

[534] A 16 September 2005 news release described "a preliminary arm[']s-length agreement"

entered into by Arbour regarding its acquisition of a Malaysian company. This information was

repeated, expanded on and clarified in a 27 September 2005 news release:

. . . The potential acquisition is at such an early stage that it is not possible for the Board [of

Arbour] to make a decision or recommendation to shareholders. The information required will not

be available until the due diligence process is substantially complete, which is expected to take up

to 8 weeks.

Arbour has entered into a preliminary arms-length agreement to acquire the Malaysian subsidiary

of an international company. The vendor represents that the oil and gas assets being acquired have

significant proven reserves and that it will arrange additional financing to carry out the initial

development program. The subject properties are located in Myanmar. Subject to various

conditions Arbour has agreed to pay $25,000,000 plus 60,000,000 common shares in [Arbour].

[Arbour] cautions that there is significant work to be done before its board can determine whether

it is in the best interests of the shareholders to proceed with this acquisition. Management is

planning to make a site visit to examine the assets, while technical experts are reviewing existing

engineering reports. Title to the property will have to [be] confirmed, as will the financial status

and records of the target company. In addition, Arbour will have to confirm the existence and

terms of the proposed financing the vendor is arranging to complete the first development phase.

[Arbour] will also have to examine and then determine whether the foreign country risks are

acceptable.

Since the share issuance would result in a change of control of [Arbour], the agreement is also

subject to regulatory and shareholders' approval which would take place at a meeting to be held

later this year. However, before such a meeting is called, [Arbour] would have to first come to the

decision to proceed with the project, at which time a [news] release will be issued and an

information circular prepared. [Arbour] continues to develop its current properties and projects.

[535] This transaction was never completed, although the 2007 February IBG Minutes refer to

Arbour having "funded primarily" the "Bengal Oil project". According to that record, the project

was set up through Brost "for either Arbour [E]nergy to buy, or use Bengal to buy Arbour".

Martyn, an IFFL structurist, was set up by Brost as a director of Bengal.

4. Arbour Preferred Shares Sold

(a) Offerings

[536] From approximately July 2004 until 16 November 2005 (the date Arbour was denied

access to the statutory exemptions available under Alberta securities laws), Arbour offered the

Arbour Preferred Shares for sale. Arbour raised a total of approximately $45.5 million from

these offerings of Arbour Preferred Shares; more than half of the sales – approximately

$25 million – occurred in Alberta to Alberta investors.

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[537] The Arbour Preferred Shares entitled holders to receive a cumulative 5.75% annual

dividend and were redeemable at the option of the holder 10 years from the issue date at the issue

price of $1.35. The Arbour Preferred Shares were also convertible to common shares, generally

on a one-for-one basis at the holder's option.

(b) Offering Memorandum Exemption Relied Upon

[538] Arbour Preferred Shares were offered for sale in several provinces. In Alberta, most of

these sales were purportedly made in reliance on an exemption from the registration and

prospectus requirements of the Act on the basis that the securities were sold under an offering

memorandum (the "OM Exemption") purportedly prepared in accordance with requirements in

force at the relevant times – Multilateral Instrument 45-103 Capital Raising Exemptions

("MI 45-103") and National Instrument 45-106 Prospectus and Registration Exemptions

("NI 45-106").

(c) Marketing Activities

[539] As noted, Arbour did not advertise or otherwise promote the sale of the Arbour Preferred

Shares to investors. Rather, Arbour Preferred Shares were sold through the combined efforts of

Brost, IFFL, Arbour and Morice. Morice stated that Arbour did not contact potential investors;

rather, "virtually all" potential investors came to Arbour through IFFL.

[540] As we discuss in more detail elsewhere in these reasons, IFFL members, as directed by

IFFL structurists or other personnel and without any solicitation by Arbour, contacted Arbour

directly, requested an offering memorandum and subscribed for Arbour Preferred Shares. The

majority of the Arbour Preferred Share purchasers were IFFL members, with more than half of

the sales – totalling approximately $25 million – occurring in Alberta to Alberta investors.

Those who purchased Arbour Preferred Shares through IFFL received "international accounts"

(at least some of which were purportedly in SGD); however, information about those

"international accounts" is not found in the offering memoranda prepared for the Arbour

Preferred Shares.

(d) The Arbour Offering Memoranda

(i) General

[541] Three offering memoranda for the sale of Arbour Preferred Shares were prepared by

Skeith with input from Morice (and limited input from Hobbs). They were dated 14 July 2004

("OM 1), 19 January 2005 ("OM 2") and 26 September 2005 ("OM 3") (collectively, OM 1,

OM 2 and OM 3 are the "Arbour OMs"). Of the Arbour OMs, only OM 3 was filed with the

Commission, as required (it was filed on 4 November 2005); OM 1 and OM 2 were not.

[542] Morice (as president and CEO of Arbour) and Weis and Wigmore (on behalf of the

Arbour board of directors) signed the Arbour OMs, certifying that they did "not contain a

misrepresentation" (OM 1 was signed and certified by Strashok in place of Wigmore, and OM 3

was also signed and certified by Hobbs as Arbour's CFO). Consistent with the pattern of drafting

errors throughout many of the documents in evidence, Weis's name was misspelled "Weiss" on

OM 1 and OM 2.

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[543] Morice was the person at Arbour responsible for filing the Arbour OMs and Distribution

Reports with the Commission. Morice agreed that he was primarily responsible for the content

of the OMs, for raising funds for Arbour and, ultimately, for determining if investors qualified

for the OM Exemption. Morice also worked with counsel – Skeith – on these matters. Hobbs

denied any involvement in OM 1 or OM 2 but acknowledged working with Skeith on OM 3,

providing him with "technical numbers".

[544] During the Morice Interview, Morice stated that he did not believe Brost reviewed any of

the Arbour OMs or provided any of the information that was included in the Arbour OMs.

Morice claimed that was his function, as president. However, Morice did say that Brost was

involved in some general discussions about the structure of the offering – offering preferred

shares and the conversion price to use. Skeith confirmed that Brost had a role in preparing the

OM 1 and that Martyn was also involved in fundraising for Arbour.

[545] With respect to use of the money raised from the offering of Arbour securities, Morice

had this to say:

Q What about on use of funds, did [Brost] provide you with any information on the use of

funds and how the funds would be used?

A Well, the key for them was that money get parked offshore right away, and that was

understood, and again, as I've said before, the commitment back to me was that

significant funds would be available to make Arbour a big company, so that was the

understanding going in.

Q Did [Brost] tell you where you were going to park those funds offshore?

A Well, again, it goes back to initially it was going to be Evergreen Trust, and ultimately it

became Merendon.

Q So he did tell you that they were going to go to Evergreen Trust and then ultimately

Merendon?

A It, it was understood that if they didn't, the money would stop.

Q So you put the money in one of those two locations or the IFFL members would no

longer be investing in Arbour?

A That seemed to be -- we never tested it, but that was my understanding of what would

happen.

Q Were they to be involved in any further decisions as to where that money would go after

that? You said you were looking at oil and gas opportunities, did you have to --

A As I say, [Brost] was the one or the driving force regarding East Timor. . . .

Q So in general, [Brost] told you where you're going to park the money, he then brought

opportunities to you --

A Right.

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Q -- for where you could then invest from that point, and you did some work on those

opportunities --

A Right.

Q -- to determine if they were something that you felt was in the best interest of your

shareholders?

A Right.

Q But those opportunities were brought to you, your attention by [Brost]?

A Not all of them but most of them, the ones I mentioned, you know, the East Timor one

specifically was, was, you know, high on the international group's list because there

[were] so many opportunities, some banking opportunities, they were looking at a whole

lot of things that didn't involve me in East Timor.

Q Was it your understanding that you would have to discuss with or essentially get approval

from [Brost] to make the investments and transfer the money out of these trusts or

Merendon loans prior to making the investment?

A It, it was quite obvious that would be the case because the money was offshore and would

be, have to be brought back or moved to whichever country the deal was in essentially.

Q And [Brost] was the one who would have brought that money back?

A He would have facilitated it for sure. I mean, my understanding again, I'm not totally

aware of what they had for decision-making process, but [Sorenson] was the, was the

supposed billionaire who would be there to backstop deals as they came up.

Q What was your understanding of [Brost's] and [Sorenson's] relationship in this movement

of money?

A Well, I mean, they, they seemed very close and very tight in terms of their own master

plan for how, how things should develop, but I was impressed with what was going on,

and all the signs were positive in 2004 that we would have support to do major deals.

. . .

Q So he -- your understanding is that [Sorenson] would have had knowledge of what

[Brost's] plans were with regard to the funds raised by Arbour?

A He would have been aware that we were looking to, to kick-start Arbour into a significant

oil and gas company, he was supportive of that in discussions early on in a general way.

You know, we never got to test it early on, it was really after the cease trade order where

funds had stopped where other opportunities would have been explored if, if money was

as readily available as it seemed to be before.

[546] Morice said that he did not recall Sorenson reviewing any of the Arbour OMs or

providing any of the information that was included in the Arbour OMs. Sorenson testified that

neither he nor Merendon was involved in the preparation of the Arbour OMs or had involvement

in whether Merendon was named in the Arbour OMs.

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(ii) OM 1 (14 July 2004)

[547] OM 1 described an offering of up to 25 million Arbour Preferred Shares at a price of

$1.35 per Arbour Preferred Share, for a possible maximum offering of $33 750 000. The

offering was to close no later than 31 December 2004 or such other date as Arbour might

determine, and there was no minimum subscription level.

[548] OM 1 disclosed that the maximum available funds from the offering – after deducting

offering costs ($100 000), sales commissions and fees ($675 000) and working capital deficiency

($195 929) – would be $32 779 071. OM 1 declared its intention to expend the net proceeds

(except for $400 000 assigned to "working capital") on "Acquisitions of technologies and

properties in the oil and gas sector with surplus funds placed in short term investments until

required for appropriate acquisitions". OM 1 stated under the heading "Reallocation": "[Arbour]

intends to spend the available funds as stated and reallocate funds only for sound business

reasons."

[549] OM 1 described Arbour's business as carrying on "oil and gas exploration and

development". OM 1 disclosed under the heading "Business Summary" that Arbour:

had acquired a working interest in an oil and gas well in the Pembina area that

produced approximately $4000 in revenue per month for Arbour;

had, on 31 May 2004, entered into a preliminary agreement with Crazy Hill to

acquire an oil and gas property near Drayton Valley, Alberta at a purchase price

of $1 million, comprised of $350 000 and 650 000 common shares valued at

$1 per share, with closing scheduled for 31 July 2004;

"participated in drilling a shallow gas development well in the Kirkpatrick Lake

area of Alberta" at a capital cost of $50 000;

was, at the time, evaluating other opportunities and expecting to enter into further

agreements in the near future; and

planned that proceeds would allow Arbour "to operate at an appropriate level of

efficiency and hire competent staff on a full time basis to properly evaluate and

exploit larger opportunities. Having the proceeds in place prior to identifying

larger opportunities will allow [Arbour] to negotiate from a position of strength."

[550] OM 1 referred to existing documents incorporated by reference, including an Annual

Information Form ("AIF") dated 14 July 2004 (the "2004 AIF"). However, the 2004 AIF had not

been filed on SEDAR by Arbour as required.

[551] OM 1 disclosed that Arbour's directors, senior officers, promoters and principal

securityholders were comprised of only three persons: Morice (president, director and beneficial

owner of 600 000 Arbour common shares); and Strashok and Weis (directors and the beneficial

owners of 2 619 917 and 3 000 000 Arbour common shares, respectively). Morice's "Principal

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Occupation for the Previous Five Years" was declared to have been a "Financial Consultant and

oil & gas company executive".

[552] OM 1 cited a number of "Risk Factors", introduced with the caution that an investment in

the Arbour Preferred Shares "should be considered speculative" due to the nature and stage of

development of Arbour's business. Included among the specific risk factors identified and

related commentary were:

(d) Exploration and development activities depend in large measure upon oil and gas

prices. . . .

(e) If oil and gas prices decrease or fail to meet expectations, exploration and production

activities may be reduced significantly, which can have a material adverse effect on

[Arbour's] operations and financial condition.

(f) [Arbour's] operations are subject to the seasonal nature of exploration and development

activity in western Canada. . . .

(g) Competition among oil and gas exploration and development companies is

significant. . . .

(h) Oil and natural gas operations are subject to extensive legislative and regulatory controls

imposed by various levels of government, which may be amended from time to time. . . .

(i) Title to oil and natural gas interests is often not susceptible of determination without

incurring substantial expense. . . .

(j) Hazards, such as unusual or unexpected geological formations, high pressures or other

conditions are involved . . . .

[553] OM 1, under the heading "Industry Conditions", declared additional risks associated with

"extensive controls and regulations imposed by various levels of government" over the oil and

gas industry that might affect Arbour and described these controls and regulations under the

following italicized headings:

Canadian Government Regulation

Pricing and Marketing - Oil

Pricing and Marketing - Natural Gas

The North American Free Trade Agreement

Production Regulation or Limitation

Royalties and Incentives

Land Tenure

Canadian Environmental Regulation

[554] A 22 October 2004 exchange in the Hoffman Tapes indicated Sorenson's awareness that

Brost was using Arbour and an offering memorandum to raise money:

Sorenson [Brost is] now doing OM's and registering them with whatever regulatory bodies

they need to be regulated with.

Hoffman Right.

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Sorenson So that he's upfront on the table because quite frankly he can't afford to be

anywhere but there from now on.

Hoffman No, understood and that was the whole purpose behind Arbour, yes?

Sorenson No. Arbour was for an entirely different purpose. You're right in assuming that

because I assumed that too.

Hoffman Okay.

Sorenson But what they were going to do with Arbour was a completely different product

and that product is going well because it's on the -- on the table, you know above

board. . . .

(iii) OM 2 (19 January 2005)

[555] OM 2 described an offering very similar to OM 1: up to 25 million Arbour Preferred

Shares, described in the same terms as OM 1, at a price of $1.35 per share for a maximum

offering of $33 750 000. There was again no "minimum subscription level" and the statement

"You may be the only purchaser" appeared on the cover. The closing date was to be

31 December 2005 or such date as Arbour might determine. OM 2 disclosed that, assuming the

maximum offering were sold, after deducting selling commissions ($675 000) and offering costs

($100 000), the net proceeds would be $32 975 000.

[556] OM 2 declared that the $32 975 000 maximum net proceeds of the offering now were

intended to be used as follows:

$14 685 000 would go to "Acquisitions of further technologies and properties in

the oil and gas sector with surplus funds placed in short term investments until

required for appropriate acquisitions";

$10 million would go to "Loan/Option Re: Tarsands Technology" (although the

funds had already been advanced by the date of OM 2) and $7 million towards

"Share Purchase: [COREL]";

$350 000 would go to purchase the "Drayton Valley oil & gas property" (the

transaction with Crazy Hill), $300 000 towards the "Kirkpatrick Lake gas

property" and $240 000 towards the "Meekwap gas property"; and

$400 000 would be applied to working capital.

[557] OM 2, under the heading "Business Summary", contained disclosure similar to that in

OM 1 of: the Pembina area working interest; the acquisition from Crazy Hill (now indicating

that it had closed on 1 November 2004); and the participation in the Kirkpatrick drilling venture

(now with a more extensive investment). It also disclosed that management was evaluating other

opportunities and that proceeds would enable Arbour to hire competent staff to assist it in

identifying "larger opportunities". OM 2 stated that with "proceeds in place prior to identifying

larger opportunities", Arbour would be able "to negotiate from a position of strength". That

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strong position did not materialize because Arbour sent the majority of those proceeds to

Merendon.

[558] The Business Summary section also contained disclosure about the $10 Million Loan

Agreement and the COREL transaction:

In August, Arbour entered into a loan/option agreement with an arm's length private Alberta

company whereby Arbour agreed to loan $10,000,000 to the company with the option to convert

the loan into an interest in proprietary oilsands recovery technology plus 5,000,000 Arbour

common shares.

In January 2005, Arbour announced that it has acquired all of the issued shares of [COREL] for

$5,300,000 plus 5,000,000 common shares. COREL holds the master operating license relating to

oilsands recovery technology and intends to build a commercial plant in the summer of 2005.

Further plants will be built as opportunities arise.

[559] OM 2 again referred to Arbour's 2004 AIF being incorporated by reference, although the

2004 AIF had still not been filed on SEDAR.

[560] The disclosure concerning Arbour's principals continued to name Morice as president and

a director, now holding 1.2 million Arbour common shares (8.6%); no description of his

principal occupation or experience was included. Wigmore and Weis were identified as the

other two directors and their Arbour shareholdings were disclosed.

[561] The risk disclosure in OM 2 was essentially unchanged from that in OM 1.

(iv) OM 3 (26 September 2005)]

[562] OM 3's offering was similar to those in OM 1 and OM 2, but was for only up to

15 million Arbour Preferred Shares at a price of $1.35 per share for a maximum offering of

$20 250 000. OM 3 declared that 28 165 638 Arbour Preferred Shares had been issued under a

previous private placement. There was again no minimum subscription level, and the closing

date was to be 31 December 2005 or such other date as Arbour might determine.

[563] OM 3 disclosed that, assuming the maximum offering were sold, selling commissions

and fees would be $1 012 500 (up from $675 000 in OM 1 and OM 2) and offering costs would

remain at $100 000. Assuming the minimum nil offering, both selling costs and, surprisingly,

offering costs were disclosed as nil for both OM 2 and OM 3. The maximum net proceeds of the

offering under OM 3 (assuming the sale of all offered Arbour Preferred Shares) were specified to

be $19 137 500.

[564] OM 3 now declared Arbour's intention to spend: $3.5 million of the net proceeds of the

offering on "Acquisitions of further technologies and properties in the oil and gas sector with

surplus funds placed in short term investments until required for appropriate acquisitions";

$15 million on a "[w]ork program for Myanmar, if that acquisition proceeds"; and $637 500

applied to working capital. OM 3 (as with OM 1 and OM 2) stated that Arbour "intends to spend

the available funds as stated and will reallocate funds only for sound business reasons". All three

Arbour OMs also warned that there is "no assurance that alternative financing will be available",

if proceeds from the offering were insufficient to complete all of Arbour's objectives.

#4155039v1

[565] OM 3, under the heading "Business Summary", contained similar disclosure to that in

OM 2 of: the Pembina area working interest; the acquisition from Crazy Hill (now stated to be

in production); the participation in the Kirkpatrick drilling venture (now stated to be in

production); the $10 Million Loan to the "arm's length private Alberta company" with an option

to convert the loan into an interest in an oil sands recovery technology company; and the

acquisition of COREL. It also stated that management was evaluating other oil and gas

opportunities and that proceeds would be used to pay for such acquisitions. In addition, OM 3

included the following two new prospective acquisitions:

. . . On September 1, 2005, [Arbour] announced that it had concluded negotiations to enter into

two substantial oil and gas transactions including offshore shallow gas concessions and a block of

existing onshore oil wells. Both acquisitions are located in what is generally referred to as

Southeast Asia. Arbour has first right of refusal to participate in other international bids being

made in India, Africa, and the Middle East. Technical advisers are currently substantiating reserve

estimates and, once completed, formal contracting will be carried out. This process is expected to

be completed by the end of 2005.

Further to the negotiations concluded on September 1, 2005, Arbour has entered into a preliminary

arm[']s-length agreement to acquire the Malaysian subsidiary of an international company. The

vendor represents that the oil and gas assets being acquired have significant proven reserves and

that it will arrange additional financing to carry out the initial development program. The subject

properties are in Myanmar. Technical advisors are currently evaluating the data. Subject to

various conditions, including due diligence review, Arbour has agreed to pay $25,000,000 plus

60,000,000 common shares [Arbour]. [20 394 538 Arbour common shares were disclosed as then

outstanding.] [Arbour] cautions that there is significant work to be done before its board can

determine whether it is in the best interests of the shareholders to proceed with this acquisition.

Management is planning to make a site visit to examine the assets, while technical experts are

reviewing existing engineering reports. Title to the property will have to [be] confirmed, as will

the financial status and records of the target company. In addition, Arbour will have to confirm

the existence and terms of the proposed financing the vendor is arranging to complete the first

development phase. [Arbour] will also have to examine and then determine whether the foreign

country risks are acceptable. Since the share issuance would result in a change of control of

[Arbour], the agreement is also subject to regulatory and shareholders' approval which would take

place at a meeting to be held later this year.

[566] The disclosure concerning Arbour's principals and risk factors appeared essentially

unchanged, except for updating the shareholdings of Morice, Wigmore and Weis and adding an

additional risk factor:

(q) The oil and gas industry has experienced a high degree of invention and innovation. It is

possible that new technology will be developed which will compete with [Arbour's]

products and services.

(v) Distributions Reported

[567] Arbour filed Distribution Reports with the Commission for distributions stated to have

occurred in every month commencing in September 2004 and ending in November 2005; the

filing were made between 17 November 2004 and 23 November 2005. All but one of the

Distribution Reports were filed outside the 10-day filing period mandated under MI 45-103 (and

NI 45-106).

#4155039v1

[568] Hobbs stated that "Morice was ultimately responsible for" filing the Distribution Reports,

although she assisted with and prepared the filings by putting the information together and

ensuring its accuracy. Hobbs explained that the Distribution Reports were filed late because "we

were a very small company, and frankly, I -- there was a very large volume, and it was difficult

to get caught up. And eventually, we did get caught up."

[569] According to the filed Distribution Reports, and as noted above, Arbour raised

approximately $45.5 million, including approximately $25 million from Alberta investors. The

filed Distribution Reports stated that most of the sales in Alberta were made in reliance on the

OM Exemption. The form item regarding commissions and fees was either unmarked or marked

"Not Applicable", notwithstanding that the Arbour OMs disclosed selling commissions would be

paid.

5. Arbour's Use of Proceeds

(a) Merendon

[570] Once Arbour received money from selling the Arbour Preferred Shares, it almost

immediately advanced the funds to Merendon, retaining only those amounts necessary for

Arbour's operational activities, limited as they were. Morice described Arbour's use of the

Arbour Preferred Shares proceeds as follows:

Q So [Arbour] didn't hold money in [Arbour's] accounts for long. You either used them for

operational expenses, or you advanced them to Merendon?

A Right, yeah. I mean, normally we had a couple million dollars at that time at all times,

you know, that was more than sufficient for what we were doing, and the balance was

moved out.

[571] As discussed above, even before the 14 July 2004 date of OM 1, plans were under way

for Arbour to make the $10 Million Loan to Merendon – the Draft Letter of Intent had been

circulated since at least 3 May 2004 and the Letter of Intent was signed in early July 2004. The

first advance of OM 1 proceeds was made on 27 July 2004 to Merendon, well before

20 September 2004, the date Arbour reported as the date on which its first distribution closed.

By the end of 2004 Arbour had raised over $11 million under OM 1, of which $10 million had

been paid to Merendon.

[572] A 3 July 2004 conversation between Sorenson and Hoffman on the Hoffman Tapes

indicated that Sorenson was aware Brost had "a tremendous amount of money backstopped in

the pipeline" of his public company, Arbour. Sorenson also stated to Hoffman that "all this looks

like it's going to be a very lucrative month from where you and I sit today". We find that

Sorenson was referring to receiving that "tremendous amount" of Arbour investor money soon

after 3 July. In fact, as noted, the first advance was approximately 3 weeks after that

conversation.

[573] Between February and the end of November 2005, Arbour advanced further money to

Merendon from the approximately $45.5 million proceeds of the Arbour Preferred Share

offerings. As discussed above, $28.6 million of this money was eventually recorded as money

advanced under the $45 Million Loan Agreement.

#4155039v1

[574] As noted, Arbour paid $2.76 million in 2005 and a further $1.344 million in the first three

months of 2006 to the four COREL shareholders for Arbour's purchase of COREL.

[575] In summary, Arbour advanced approximately $42.7 million to Merendon and COREL – a

company in which Merendon had a significant interest. This represented almost 94% of the

money raised from sales of the Arbour Preferred Shares under the OMs.

(b) Other Uses of Proceeds

[576] Apart from paying significant money to Merendon, Arbour used the proceeds from the

sales of the Arbour Preferred Shares to make other payments.

[577] In 2005 Arbour paid approximately $257 000 of the proceeds realized from the sale of

the Arbour Preferred Shares to Expedia for "Administration Services" (as noted, Morice referred

to an oral agreement for Arbour to pay Expedia 1% of the money raised by Arbour).

[578] Through 2005 and 2006, Arbour paid a net amount of approximately $1.9 million of the

proceeds from the sale of Arbour Preferred Shares to its wholly-owned subsidiary, Arbour US.

[579] Through 2005 and 2006, Arbour paid a net amount of almost $70 000 of the proceeds

from the sale of Arbour Preferred Shares to its wholly-owned subsidiary, Arbour Caribbean.

6. Disbursement of Money to Merendon and Beyond

[580] Regier testified that advances of Arbour money to Merendon were made at the direction

of Brost. Brost would instruct Regier, who worked for Expedia in offices next door to Arbour, to

walk down the hall to Arbour's offices and ask Morice if Arbour had any money available to

forward on to Merendon or to tell Morice how much money Brost was requesting be sent to

Merendon or Sorenson. Morice would let Regier know how much money was available to send

to Merendon. Morice never questioned Regier's authority to make these requests, and complied

with them by preparing cheques and giving them to Regier. Regier would then send the funds to

Merendon, along with distribution instructions (discussed below). Regier stated these requests

from Brost would happen at least one per month, "as we got close to the typical redemption

payout period".

[581] Regier testified that initially when Arbour was beginning its fundraising, the amount sent

to Merendon was based on what Arbour had available to send. Later, Brost informed Regier "on

numerous occasions" that the goal was to get $2 million per month to Merendon. Regier did not

know whether Brost had discussed this $2 million goal with Sorenson or whether Sorenson had

provided Brost with a budget of how much money Sorenson needed.

[582] Regier believed that the cash flow from Arbour to Merendon was being used for "SGD

redemptions [to] SGD account managers" – those "IFFL members who made an investment in an

IFFL-promoted company" and some of whom would have been Arbour preferred shareholders.

However, Regier acknowledged that, although he understood Merendon had borrowed money

from SGD pursuant to an agreement or series of documents, he had never seen those documents.

He agreed that he had "no idea whether or not there were any contractual or other legal

#4155039v1

obligations that required Merendon to be provided a total of [$]2 million a month by SGD" or by

Arbour. Regier further agreed that it was Brost who dealt directly with Sorenson regarding how

much money was to be sent and that Regier knew only what Brost told him. Regier did not

receive any such information from Sorenson or anyone else at Merendon.

[583] A 24 March 2005 conversation between Hoffman and Sorenson on the Hoffman Tapes,

seemed to substantiate Regier's belief that Merendon was receiving about $2 million per month

from IFFL's fundraising activities. Given the date of the conversation, we conclude that included

money raised from sales of Arbour Preferred Shares through IFFL. The conversation also

revealed some of Sorenson's knowledge of IFFL:

Hoffman You know when we were--we were a small company and Milowe was small, he

only had enough strategists that between you and myself we could keep--can

keep their stories from getting too loud and we--now you can't meet everybody.

Graham has no idea how many people he's got out there, he never hears from

them and there's no way of--of couching what they're saying.

Sorenson Well do you want to know how many people there are? 59 structurists,

225 agents, 176 prospects. According to his business development [inaudible]

they're writing an average of between 8 and 10 contracts per day for an average

between 50 thousand and 100 thousand [presumably dollars].

. . .

Sorenson [inaudible] Let[']s take the lowest number 8 times 50 thousand, that's

400 thousand a day we'll just give them a 15 day month, 6 million dollars a

month. Now 70% is what we get, that's 4 million 200 thousand dollars.

. . .

Sorenson Owen, we get half of that.

Hoffman The rest is going into those other projects.

Sorenson The cash flow right now for the last 3 months has been roughly about 2 million

dollars, so where's the rest?

Hoffman Going into whatever wherever.

Sorenson Yeah. It's not coming, even those--those clients aren't even opening accounts in

SGD. . . .

[584] As noted, Regier – at Brost's direction – sent Arbour's cheques signed by Morice to

Merendon along with a covering memorandum and distribution instructions that Regier created –

again at Brost's direction – for Merendon to follow with respect to that money from Arbour to

Merendon (the "Brost/Regier Distribution Instructions"). Regier stated that he received

instructions about distribution and wiring funds from Brost only.

[585] The Brost/Regier Distribution Instructions were sent from Regier to "Jack Wolfe"

(Merendon's controller at the time) or to "Jack Wolfe/Karen" (apparently referring to another

Merendon employee) or "Jack Wolfe/Jared Wolfe". Regier said that no one from Merendon,

#4155039v1

Jack Wolfe included, ever questioned Regier's authority to send such instructions. Regier was

unaware of anyone from Arbour being shown the Brost/Regier Distribution Instructions.

[586] The Brost/Regier Distribution Instructions included advice to Merendon as to amounts

from the funds that should be sent to or retained for Brost-connected entities, including True

North, La Conxion and Grovenor.

[587] Regier had no documentation to confirm whether Merendon followed the Brost/Regier

Distribution Instructions, although he said that the True North Arizona and True North Nevada

bank statements would show money coming in from Merendon. Such bank statements were not

produced. Brost never told Regier that Merendon was not following the Brost/Regier

Distribution Instructions.

[588] Gleason and Blakey both testified that they learned of the Brost/Regier Distribution

Instructions some time later, then reviewed them to see if they had been followed. They

concluded that two payments (totalling US$23 484) had been made to La Conxion in August

2004, booked as an advance to Eiger by SGD. These appeared to match the Brost/Regier

Distribution Instructions relating to advances made by Arbour to Merendon dated 30 July 2004

and 5 August 2004. Gleason and Blakey both testified that their review satisfied them that other

transfers listed in the Brost/Regier Distribution Instructions were not paid. Other payments

were, however, made by Merendon to True North – purportedly credited against Eiger's

indebtedness to SGD (discussed below).

[589] Further evidence as to the disbursement of Arbour investment funds by Merendon was

found in an undated handwritten memo from Jack Wolfe to Sorenson with the notation "Re:

Disbursements. 1. Arbour [E]nergy Agreement" (the "Wolfe Distribution Summary"). The

Wolfe Distribution Summary listed the dates money was received from Arbour between 27 July

2004 and 16 September 2004, the amounts received (totalling $3 610 000), and the amounts due

to Grovenor (totalling $917 002) and to True North (totalling $412 879). These correspond with

the dates and amounts set out in 18 January 2005 and 3 May 2005 summary documents (the

"Brost/Regier Distribution Instructions Summary"), except for three differences: an apparent

error in the Wolfe Distribution Summary in which a payment to Grovenor is listed as $108 966

instead of $198 966 (making the Wolfe Distribution Summary total $90 000 lower than it should

be); a date of 27 July in the Wolfe Distribution Summary compared to 30 July in the

Brost/Regier Distribution Instructions Summary; and the reference to True North in the Wolfe

Distribution Summary in place of La Conxion from the Brost/Regier Distribution Instructions

Summary.

[590] The Wolfe Distribution Summary states that "[w]e have paid" $17 666 and $13 236 for a

total of $30 902 (to be converted to US$23 484, as required by the Distribution Instructions).

These are the first two amounts under the heading "Due to True North" in the Wolfe Distribution

Summary and under the heading "La Conexion" in the Brost/Regier Distribution Instructions

Summary. The Wolfe Distribution Summary then restates the "Balance due in Canadian funds"

as $917 002 owing to Grovenor (as noted, that should have been $1 007 002) and $381 977

owing to True North. The Wolfe Distribution Summary is evidence that Sorenson knew Jack

Wolfe, as Merendon's controller, was receiving Arbour money and some of that money was then

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being paid to Brost (through La Conxion or True North) and that other money was to be paid to

Grovenor.

[591] After the first two Brost/Regier Distribution Instructions, the instructions changed. The

Brost/Regier Distribution Instructions associated with the second 5 August 2004 payment

contained Regier's advice to Jack Wolfe that money payable to La Conxion was "to go to [True

North] for the next while". Regier testified that Brost made that change and told Regier; Regier

thought it was because "the banking for La Conexion was terminated for some reason". That

wiring of La Conxion's share to True North continued through the rest of the Brost/Regier

Distribution Instructions in evidence. The Brost/Regier Distribution Instructions associated with

the 1 September 2004 payment contained Regier's direction that Merendon was now to "continue

to hold the funds for Grovenor as instructed". Those instructions also continued.

[592] Consistent with Regier's revised instruction that money for La Conxion was to be wired

to True North instead, Merendon's banking records showed that from the first $10 million

advanced to Merendon by Arbour, payments were made to True North in 2004 in the amount of

US$473 554.75.

[593] There are no Brost/Regier Distribution Instructions after December 2004. Regier said

that this was because Strategic began raising money, and that money was then sent to True North

to pay SGD redemptions.

[594] The Brost/Regier Distribution Instructions Summary summarized the distribution of the

$10 Million Loan: 59.42% ($5 942 259.14) to Merendon; 7.59% ($759 061.98) to La Conxion;

and 26.09% ($2 608 680.88) to Grovenor. Although Regier testified that the Brost/Regier

Distribution Instructions Summary looked like a document he prepared, he stated that the

handwriting on the 3 May 2005 version was not his, nor were the percentage calculations on the

right side of the document.

[595] Throughout 2005, Arbour investor money continued to be advanced to Merendon.

Merendon's US bank account records for that year show transfers of almost US$3.2 million from

Merendon to True North.

[596] Regier testified that Arbour investor money that ended up at True North went to a US

bank account "to be distributed by M.B. Gonne" (Brost). The "funds were used for SGD

redemptions" to anyone with an SGD account. Although the "potential existed" and Regier was

"90 percent confident" that some SGD redemptions went to Arbour investors, he gave no proof

of that.

[597] Sorenson did not deny the payments to La Conxion, but attempted to justify them.

According to Sorenson, Jared Wolfe had mistakenly followed Regier's instructions to make the

payments to La Conxion. Sorenson, after learning of these payments to La Conxion, said he

contacted Brost and told him there was no reason for La Conxion to have that money. Brost

agreed to credit the two payments against the SGD loan and the payments by Merendon to La

Conxion were "reversed", with the effect that neither of the La Conxion payments directed by

Regier ended up being made.

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[598] Sorenson said that all funds coming from, or going to Grovenor, Steller or True North

were either capital loan receipts or payments. Sorenson explained that since Merendon (through

Sorenson) owed money to SGD and True North (through Brost) was "administering capital loan

repayments" for the SGD program, Merendon could retire a portion of its SGD debt by paying

True North directly – what Sorenson termed "capital loan repayments". Sorenson did not point

to any agreement between True North and SGD allowing for this or any written confirmation

from either SGD or True North to Merendon of payments or corresponding reductions in

Merendon's debt to SGD.

[599] We reject Sorenson's testimony on these matters. We find that he well knew portions of

the Arbour investor money sent to Merendon were being paid to La Conxion and True North.

We accept that Sorenson may not have been aware of the exact amounts or mechanics of the

Brost/Regier Distribution Instructions, but we are convinced – and we find – that he was aware

of the existence and implementation of the Brost/Regier Distribution Instructions.

[600] The Brost/Regier Distribution Instructions and Merendon banking records available do

not reconcile completely. Perhaps the conversion between Canadian and US dollars was a

factor. Perhaps not all of Brost/Regier Distribution Instructions were paid as directed. However,

we are satisfied from the evidence as a whole that the Brost/Regier Distribution Instructions were

generally followed and were a critical part of moving the Arbour investor money to Merendon

and, through Merendon, to other Brost/Sorenson Entities.

[601] Merendon banking records reflected transactions that further evidence connections

between Brost and Sorenson. For example, one statement showed a $100 000 payment to IFFL.

Another statement showed incoming wire transfers on 3 and 4 August 2004 – depositing

$330 310 and $300 000, respectively, into the account.

7. Conclusions Regarding Arbour

[602] We are satisfied on the balance of probabilities, having carefully reviewed the whole of

the evidence, that Morice became involved in Arbour and its transactions as the nominee for

Brost and Sorenson. We so find. We also find that Arbour's corporate transactions – namely the

offering of Arbour Preferred Shares under OM 1, OM 2 and OM 3 and the purchases of COREL

and Merendon's TRL Shares – were planned, initiated, controlled and directed by Brost,

Sorenson or both. Morice was guided and instructed at various times by or through Brost or

Sorenson (primarily Brost). We reject Sorenson's contention that he never spoke to Brost about

business transactions with Arbour.

[603] Some effort was made in cross-examination and in argument to establish the extent of

Morice's role – acting independently or purely as a nominee of Brost or Sorenson. We do not

believe that Morice was as naïve as his counsel would like us to believe, and we did not have the

benefit of his direct testimony. However, it is clear – and we find – that Morice initially acted as

a puppet with the strings being pulled by Brost, Sorenson or both. Later, however, Morice

realized (or should have realized) what Brost and Sorenson had planned and executed for Arbour

and Merendon, but did nothing to stop the flow of investor money to Merendon, money which

eventually flowed to other Brost/Sorenson Entities.

#4155039v1

G. Investor Testimony

1. General

[604] Five investor witnesses testified at the Merits Hearing, all called by Staff. All gave

evidence regarding their interaction with IFFL; only some had purchased Arbour Preferred

Shares. Staff also called a sixth witness – LB – who was not an IFFL member or investor

himself but testified regarding investments made through IFFL by his parents. Also in evidence

were transcripts of Staff's interviews of other investors. These individuals did not testify so were

not cross-examined and some of the interviews were not taken under oath. We placed no weight

on this transcript evidence, given the circumstances.

2. Investor Witness LB

[605] LB was not a member of IFFL and did not invest in Arbour Preferred Shares. However,

LB's father, AB, (a retired Manitoba farmer, who was approximately 75 years old at the time of

his Arbour investment) and mother were members of IFFL and did invest in Arbour – with the

investments in AB's name. Because the documents and testimony before us refer to AB, we use

only his name rather than his and his wife's names.

[606] In the course of assisting AB – according to LB, he had an authorization to assist AB –

LB learned some information about both IFFL and Arbour. LB attended three IFFL

"information sessions", which were for non-members and existing members. LB understood that

Brost established and operated IFFL, which was purporting "to be an educational process". LB

agreed with characterizing Brost as the "kingpin of the IFFL".

[607] LB said that people called structurists would explain "investment opportunities", then

"facilitate the purchase of . . . investments . . . through the IFFL". After the information sessions

such as the ones LB attended, both members and non-members would have the opportunity to

attend "one-on-one meetings" with a structurist to discuss "about becoming either a member or

making a new investment or coming to understand better about the investment they had made

through the IFFL". LB attended a one-on-one meeting with a structurist because LB was

considering becoming a structurist. LB said the structurist explained to him:

. . . how [IFFL] worked and how a person, if you became a structurist, could make hundreds of

thousands of dollars from the fees that were -- that were coming off the investment. And that fee

structure was based upon the amount of money that a person was able to bring in. So if you were

a structurist and raised one or $2,000, there would be a certain fee; and then if you raised a million

dollars, there would be more of a fee that you would get, that within a year, you could be making a

lot of money [as] a structurist.

[608] LB further described what occurred at the sessions he attended:

Well, at the sessions they would explain to you -- the structurists would explain . . . for example,

would explain how the process worked and would talk about, for example, a gold mine in

Honduras and how there were high rates of return for this and how you would make an investment

on the Canadian side, and the money would somehow then flow over through this management

process to the international side; and . . . there were different opportunities. For example, there

was the gold mine opportunity, there was a bad debt collection opportunity, all of which had

varying degrees of high rates of return. And that if you wanted -- so he would describe those --

those specific opportunities, and then if you wanted to invest in those, you had to be a member.

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So if you weren't a member, you'd have to become one. And if you were a member, then you

would talk to [a structurist], and [the structurist] would sort of facilitate the process.

So you would then learn about specifically what you were going to be purchasing. In this case, it

would be Arbour that [AB] made his investment in -- the first one was Quattro. But [AB] would

have learned about the specifics, like the name. And the documentation would have been

processed following the meeting. But the opportunity was described in the course of the meeting,

so talking about the gold mine, how you could go down and visit the gold mine, how he actually

had a little bag of gold that you could see that, you know, it had all seemed very open and very

transparent and very attractive.

[609] LB understood that structurists earned money in two ways: from signing up individuals

as members, and from member purchases of securities promoted by the structurists. LB's clear

understanding was that structurists were paid a small amount of money for recruiting members

but that they earned their "real money" from selling investments promoted by IFFL.

[610] According to LB, AB first invested through IFFL after learning of IFFL in, most likely,

early 2003 through an individual who later became a structurist. AB invested $50 000 in Quattro

in August 2003; he was an IFFL member by then, as membership "was required" before

investing.

[611] AB made his second investment through IFFL when he purchased Arbour Preferred

Shares in August 2005 after learning about Arbour from an IFFL structurist. AB told LB that he

was given all the information about the Arbour investment, including the identity of Arbour,

during his one-on-one meeting with the IFFL structurist and told his son "that's the only place I

would know about it".

[612] LB said his father was attracted to the Arbour investment not only by the prospect of high

returns on the international side, but also "a representation of what was a pretty solid rate of

return on the Canadian side. So there [were] both sides, because he was going to be getting 7 or

8 percent a year on Arbour, and that was going to accumulate". LB stated that the international

side was to have a return "closer to about 30 or 40 percent", which he agreed was "a significant

inducement for an investor". LB was never satisfied with the explanation of how one investment

could have both a domestic and an international side, particularly since a significant amount was

deducted for commission fees – leaving a lesser amount to be divided between those two sides.

LB did not know why his father thought the rate of return would be 7 or 8% on the Canadian side

when section 5.1 of OM 2 referred to a dividend rate of 5.75%.

[613] LB understood "that the offshore side had a gold mine in Honduras" that could be visited

– "they were doing very well, and they had these very high rates of returns; and these high rates

are not uncommon in the international investment arena . . . this was not unreasonable

internationally". LB said that Merendon was not discussed at the information sessions, as the

specifics discussed at those meetings mentioned no names (for example, references were made to

a mining property in Honduras):

. . . They would have described the mining operation [at the information sessions], and then you

would have learned about that, I guess, as a one-on-one member afterward. I learned about it

through -- partly through my father and his documentation, and through my work tracking down

official legal documents.

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. . .

. . . at the meetings, [IFFL structurists] would talk about a specific company, not gold mining in

general in Honduras -- a specific company in Honduras. Not naming it, but they would talk about

a specific investment opportunity. So the meetings weren't generally about gold mining in Central

America, they were about a specific company in Honduras without naming that company. That's

the distinction I'm making between general and specific.

[614] LB thought that Merendon was "on the international side of where this money was

going". LB did not know which Merendon entity Arbour had investments with or what type of

investments were involved.

[615] AB received OM 2 (dated 19 January 2005) and a subscription agreement for his August

2005 investment in a 5 August 2005 letter to him on Arbour letterhead from "The Arbour Team".

AB was asked to return the completed subscription agreement by courier to Arbour at Arbour's

expense. AB's subscription agreement showed his initials next to the "eligible investor" category

of net assets over $400 000 or net income before taxes over $75 000 (or, with a spouse, over

$125 000) in the most recent two years. AB completed a "Risk Acknowledgment" form

acknowledging the Arbour investment was "a risky investment". That document and the bank

draft from AB to Arbour for US$50 000 (converted to $60 345) are dated 15 August 2005. LB

did not know why the subscription money was paid in US funds when the OM 2 amounts were in

Canadian funds. LB acknowledged that OM 2, received by AB, said nothing about an

international account, nor about any transactions between Arbour and Merendon. AB received

an Arbour share certificate for 45 000 "Preferred Series 1" Arbour shares dated 16 August 2005.

AB never received a share certificate for the international side of his investment. Apart from

receiving such documents or correspondence, AB did not deal directly with anyone at Arbour.

[616] AB had been given an online account for his international investment. The account

"would show [AB] how his money was growing at these very high rates of return" – at one point

AB believed he had $177 000 in his international investment.

[617] LB understood that of the approximately $60 000 AB invested to buy Arbour Preferred

Shares, 40% would be taken for "fees" and commissions, with the remaining 60% (or $36 000)

going to the international side and the same amount somehow staying with Arbour. He said that

"it seemed to be represented to go through some kind of a process to result in parallel

investments, but I didn't understand how that could happen".

[618] LB and his brothers were concerned when they learned, several weeks later, about AB's

Arbour investment. LB described his concerns:

The concern was that this whole scheme, or what seemed to me to be a scheme, seemed not

legitimate. It didn't make sense that you could make an investment on the Canadian side, and so if

you purchased $50,000 Canadian, that you would have a 10-year investment there, that somehow

money would go over to the international side, and you would be a manager under that construct;

that you would be making money as a legitimate investment on the Canadian side -- like, in this

case, with Arbour -- and then at the same time, your money would be working on the international

side, while concurrently 40 percent or some significant portion of the initial investment had been

taken off in the form of fees. So the math didn't work.

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And -- and there was a . . . sort of a sense of secrecy around the whole -- the whole process,

because at meetings there would be representations that, you know, the government didn't want to

support the little guy, that the Securities Commission was out to get the company, the company

wasn't doing anything wrong, that the IFFL was sort of being targeted as a victim in all of this as

well.

So all of that to me didn't sit well, and it wasn't someplace that I wanted my father and my mother

to be investing their limited life savings.

[619] In July 2007 (well after AB's investment in Arbour), Brost spoke at an IFFL session

attended by LB's parents in Winnipeg. LB, who was not present at the session, spoke to them

immediately after the session. LB's parents told him that the issues surrounding Arbour and

IFFL were being addressed, that the Arbour investment was still very promising, and that Brost

told investors they could take their money out if they wished, but that he did not encourage

redemptions because investors would forfeit the very attractive returns. According to LB, AB

"felt reassured" and believed "that everything was being dealt with".

[620] AB received some money back through a withdrawal process that had apparently been set

up by IFFL. AB was required to purchase a debit or credit card for $3000. AB could then use

that card to withdraw funds from his investment, but only in specified "standard increments".

LB was unsure to whom his father paid the $3000, but understood that a structurist had

facilitated the withdrawal process. AB withdrew $1500 using the debit card, but that was the

only money that AB was able to withdraw. Apparently the process for withdrawing funds

changed, requiring an application to withdraw funds that had to be approved.

[621] AB submitted an application to withdraw $60 000 but delays started to occur and no

money was paid to him. When AB made his withdrawal application, his online account

statement showed that $60 000 had been withdrawn from his account, although AB never

received that money.

[622] In the course of trying to recoup his parents' money, LB spoke with Hobbs in early

August 2007. LB spoke with Hobbs "to understand the Canadian side" of the investment; she

confirmed that Arbour received most of its initial funding from IFFL members. Later on, LB

decided to pursue both IFFL and Arbour for return of his parents' money because, as he

explained:

Well, by the time I wrote the second letter or the letter to Carol[e] Hobbs, I was putting them all

[IFFL and Arbour] together and saying . . . my father wants his money back. . . . I recognized by

that point that, I believe, that there was a -- there was a strong connection between the two, that

they were inseparable and untangleable, in my -- as I understood, and so I was asking for money

back from Arbour, and referencing IFFL. I was asking for money back from people who were

Syndicated Gold that were connected with IFFL, and I just was asking anybody, who had some

form of representation on this investment, for the money back, and I was connecting the dots. So I

was referring to other people who I understood to be connected to these relationships, because I

wanted them to understand that I knew there was -- that there was a relationship between them,

and it didn't matter to me where the money came from; we just wanted it back.

. . .

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And I was wanting my [father's] money back from Arbour because I felt that my father had made

an investment in Arbour, and that in itself should be a self-contained investment that I could deal

with on the terms of a legitimate investment as it was intended to be and was represented to be. . . .

[623] A structurist gave LB the telephone number for Forrest who worked in "the Belize office"

and apparently could "help me facilitate a withdrawal". When Forrest told him she would need

the approval of Werner, the president of SGD, LB concluded that the Belize office and Forrest

were part of SGD.

[624] LB and his parents had many communications with various people while attempting to

obtain a refund of AB's investments: a 10 August 2007 fax to Forrest, copied to Brost and three

structurists; a 16 August 2007 fax to Werner as President of SGD; a 22 August 2007 fax to

Hobbs, copied to Brost, Forrest, a structurist and an auditor for Arbour; and a 24 August 2007

fax to two structurists, copied to Brost and Forrest, advising that "Martin Werner, who

represented himself to me as the President of SGD, has agreed to immediate release of [AB's]

funds. He was to communicate this direction to Edna (Forrest)"; and a 5 September 2007 fax to

IFFL to the attention of Brost and two structurists. LB himself had at least two conversations

with Werner in approximately August 2007 requesting a refund of his parents' investment.

[625] In apparent response to the 24 August 2007 fax, LB received, in approximately

September 2007, an undated letter on IFFL letterhead from "Phil Lievers Office Manager". The

letter informed LB that he would not be dealt with because he was not an IFFL member, would

be barred from ever being an IFFL member, and would potentially be the subject of a defamation

action if he contacted the IFFL office in the future.

[626] LB acknowledged that he never contacted Merendon or Sorenson in trying to recover his

parent's investment, nor was LB aware of anything that would lead him to conclude that AB had

a contract with, invested in or sent money to Merendon.

3. Investor Witness KA

[627] KA is a Calgary resident with "average" investment knowledge – his Arbour and IFFL

experiences were his "main venture into investments". He became an IFFL member and a

"facilitator" – KA described as the moniker given to those whose encourage others to join IFFL.

KA was introduced to IFFL by his daughter who knew Brost and some of his family members

and had invested $10 000 through IFFL and "on paper . . . [was] doing very well".

[628] KA, who attended a small IFFL workshop in Calgary, explained what an IFFL structurist

told the group:

They went through just what typical investments are and what they will earn you for interest. And

then they talked about what they had available as an international and that the interest rate was a

whole lot higher, and that it was open to -- where -- we were told sort of that this is where banks

made their money, and so forth, is going into these higher interest rate investments. And this way,

through them, they could show us how to take advantage of these companies with our investments,

and that we could actually be -- we could invest domestically, and then that we would be given

international accounts that we could manage.

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[629] KA became an IFFL member after the workshop, was given a book of information and

signed "their nondisclosure agreement". KA said that, although not encouraged to do so,

investors could bring an accountant or someone else to the meeting – "if you wanted to have . . .

somebody else look over this stuff, you had to bring them to a meeting so that they could sign a

nondisclosure form first".

[630] KA subsequently attended a further small meeting, then a larger one with approximately

40 attendees and several speakers, including Brost. KA understood that Brost was the CEO of

IFFL. At the latter meeting, there were more details, including IFFL's role of "trying to teach

people how to become financially independent -- financially free" and that "if you became a

member, that their knowledge would be available to you". KA said that at the large meeting

IFFL members were given a list of, he estimated, 10 specifically identified companies, some of

which offered the "international" side – the IFFL List of Companies. KA explained as follows:

. . . at that time, we were given a sheet of paper, and it had the names of different companies that

you could invest in, and then there [were] some brochures that corresponded to the names, that

you could read some of the information on. Some of them had information, some of them didn't;

but they all had websites, I believe, that we could go to.

. . .

The only one I do remember was the Arbour one [KA later remembered that Arbour was

mentioned not at that time but at another large meeting approximately a year later], and that was

the one that I was interested in because they -- they talked about their oilsands recovery

technology, and that one sounded -- well, oilsands [were] new at that time, and it looked like a

good plan that they had. It was a way of -- basically they said that the technology was going to

enable them to extract more oil from the sand than the current technology and that they would be

able to use it for actually refining oil and also doing cleanup . . . .

. . .

[The companies referred to] were ones that we could . . . invest with domestically, and then from

there, there would be an account set up internationally that would be earning a higher interest rate

that . . . I would become a manager of.

[631] KA explained his understanding of the investment that offered both the domestic and the

international or managed account side:

The way it was explained to us was that when you do an investing normally -- and this was done

at a workshop. So when you normally invest into, say, a bank and you put in $10,000 and you get

an interest rate back from them of whether it is a GIC or something, but you get a -- you get an

interest rate back that's comparable to the market. But the bank takes that money, and they

reinvest it into other -- other places that -- that earns them a considerably higher interest rate,

which is why they pay us a lower one, so they're making profit on it.

And that when we were investing with these other companies, like Arbour and the Rapid Express,

that's what they would be doing is they had access to other foreign markets and other places to

invest the money where they would be getting the higher interest rate. So even though -- so I give

them [he meant Arbour] -- I invested this money. They're probably going to reinvest it the same

way a bank would. They would realize the profit from that, plus we would get the other profit that

-- we'd split -- sort of split the profit with them. And that's the way it was explained to us.

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[One thing discussed on] the international end was the SGD, the gold fund, and that was --

Merendon was mentioned with that. And at the -- at the beginning, that was about the only thing

internationally that was available. And then other things came available after that, as well as the

SGD.

[632] KA recalled that the money invested on the international side was used to buy what IFFL

told members was "discounted gold that was stockpiled". He agreed that "gold was something

that was pushed pretty hard at the IFFL meetings as being a very secure form of investment" and

which, he said, added credibility to the investment:

. . . There was a lot of talk about how the how the gold markets worked and stuff. They even had

these little packages of -- with a gold bar in it and different forms of gold that were -- I believe

they were -- they were supplied by Merendon because they had a stamp on the gold bar. I believe

it was a Merendon seal on it.

. . .

Structurists . . . usually had them in their briefcase, when they were giving presentations they

could bring them out so that you could handle them.

. . .

Certainly also made the whole idea of gold being a solid investment when you'd be able to handle

gold. I mean, they had this stuff around, enough so that you could actually be carrying this stuff

with you and showing it to people. It -- it sort of helped to lend credibility to the whole idea.

[633] KA said that Merendon was brought up at some workshops as "one of the places that –

when money went internationally, that it was a place that would be able to give the higher

interest rates back", and there were "brochures about Merendon and some of the companies or

some of the things that they had". He assumed that Merendon and SGD "were the same thing".

[634] KA conceded that another attraction to the RRSP-eligible international investments

identified by IFFL was that they provided a vehicle for seemingly having tax-free RRSP money

remain in Canada (for example, invested in Arbour Preferred Shares) when the money had

actually been moved offshore and invested in an entity (SGD or Merendon) that provided

significant rates of return from the international market. KA agreed that the IFFL culture

promoted a distrust of government and the banks, as he discussed in the following exchange:

Q . . . I'm going to suggest is the culture of the IFFL, kind of drew you into that whole

belief system.

A Yeah.

Q And by which I mean, look, if the banks can do it, I can do it; if the rich can do it, I can

do it, that kind of thing?

A Well, that's what we were told, yes. And it wasn't breaking the law, it was bending it. It

was making the law work for us. That's what we were told.

[635] KA agreed that IFFL was "actively involved in orchestrating your investment", and

brought the opportunity "to your attention, they advised you to make it, they assisted you in

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executing the making of that investment". However, KA resisted the suggestion that IFFL told

him he "should take a mortgage on [his] house and that [he] should convert [his] RRSPs and

[his] pension to the investment in Arbour". KA said that "I made the decision that I was going to

make the investment and I was going to put everything I had into it. I think they were very

careful about doing that."

[636] KA's first investment was in Rapid Express for $125 000, funded with a home equity

loan, which was "[o]ne of the strategies that the IFFL told us about". KA's recollection was that

Rapid Express was the only available investment at the time that "you could invest domestically

with, . . . and access the international side of the investment". As he was only interested in the

international side, he would not have chosen any company on the list that did not offer that side.

A structurist assisted KA in filling out the investment paperwork.

[637] Approximately one year later, KA received another list of companies, with some of the

companies offering the "international" aspect, but only one company – Arbour – was an RRSP-

eligible investment that also offered the international side. KA was interested in Arbour not only

because of its oil sands technology but also because he could use his RRSP and pension money

to purchase the Arbour Preferred Shares; he stated "it was the only thing that they had for

registered funds to be able to take advantage of the international market again". KA also

acknowledged that the 3% per month from the international side was "a significant inducement

or encouragement for [him] to invest through the IFFL". KA understood that Arbour had its own

legitimate business from which he would realize a return, but did not understand exactly how

money would be moved into another company – "whether it would be a loan or an investment or

whatever". He understood that "a bit got left in Arbour, but the bulk went into that international

account".

[638] KA received an Arbour OM (given the date of his investment, it would have been OM 1)

and Arbour subscription agreement before purchasing Arbour Preferred Shares. Those

documents were given to him at the IFFL office. He recalled reading "the page about the risk,

the high risk" of the investment and questioning his structurist about those statements of risk.

KA's structurist assured him "that any investing you had to do with -- with a company, they had

to disclose that it was a high risk, and you had to understand that" and also "claimed that there

was very little risk involved". KA did not read the whole offering memorandum because he

"didn't understand a lot of it" but "it didn't really matter" because he had already decided to

invest in Arbour and buy the Arbour Preferred Shares. KA did not speak to anyone at Arbour

before investing.

[639] KA purchased 128 821 Arbour Preferred Shares for $173 908.35 and received an Arbour

share certificate dated 10 September 2004. KA made a second purchase of 49 435 Arbour

Preferred Shares for $66 737.25 and received a second Arbour share certificate dated

10 September 2004. KA made a third purchase of 1777 Arbour Preferred Shares for $2398.95

and received a third Arbour share certificate dated 8 March 2005. KA's total investment in

Arbour was approximately $243 000.

[640] KA said that after his investment in Rapid Express and Arbour, he was given a choice of

where he wanted the money to go in the offshore-managed account. His "choice" came to him

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through "a paper package that came from the office in Belize" (or what he was told was an office

in Belize) to the Calgary IFFL office. KA attended at the IFFL office to complete the paperwork

that would set up the offshore-managed account and left the completed paperwork for further

handling by IFFL. He explained how the managed account process worked:

. . . is this is what you're asking, did I know that it was going to go into Syndicated Gold when I

first made the investment with Arbour or with Rapid Express, no, I did not. I knew that there was

going to be some type of an account that we would be -- that I would be managing, and I didn't

know what form it was going to take until it arrived.

. . .

Well, we received the statement on it, and then you had the options of taking that, because it all

came out as SGD, first of all, and then reassigning it to other things that were -- like the Tena

Gold. There was about four or five of them, so you could take them and redistribute the money

into other accounts if you found the one that was going to be -- that would be more profitable.

[641] KA explained that Arbour would somehow – he did not know how – deposit the principal

and interest into his SGD offshore-managed account. He said he was told:

. . . that it was like putting money into the bank, but instead of a bank, it was within Arbour.

Arbour reinvested the money into a higher interest, and that's where the account came through --

became an international account, because that's where they were investing it, and we [KA] were

managing that.

[642] KA said that IFFL members were advised by IFFL that because they were managing

offshore money they need not disclose the gains on the money in the offshore account to Canada

Revenue Agency. He was also advised that, because of a "rule change", IFFL was looking at a

restructuring – IFFL would "reassign the money" and investors would become "limited partners",

but even then with having to pay tax on the investments "you were making so much -- there was

so much money there that it didn't matter to have to give the government [its] due".

[643] KA received monthly statements under SGD letterhead by mail, then later through the

internet. Although the statements eventually stopped, they did show his investment growing

significantly, with substantial accrued interest.

[644] KA said he did not receive any "returns" on his investments, although he made

redemptions from his offshore-managed account when there were "rumblings . . . that things

weren't working out". KA redeemed $1000 a month for about 12 months for a total return of

approximately $12 000. KA withdrew the money from an ATM machine using a debit card or

credit card issued under a "business expense program", which was the mechanism IFFL set up

for investors to access money from their offshore-managed accounts. He recalled having two

different cards (an original and a replacement), one of which was under "Nordic" (apparently

"Nordic Merchant Credit Union"). He did not recall paying for the card. KA also received a

payment of $1000 after a cousin he introduced to IFFL invested (perhaps $25 000) in Arbour.

[645] KA recalled Sorenson participating in some of the IFFL conferences. KA met Sorenson

at an IFFL conference in Calgary some time after investing in Arbour. KA knew that Sorenson

was the president and CEO of Merendon and owned "Merendon Mining". At the time, Sorenson

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gave what KA described as "sort of a pep talk and thank-you" to the IFFL membership –

"congratulating the members for the wonderful work that they were doing, the IFFL members,

and the money that they had brought in for investing". KA did not recall other specifics of

Sorenson's talk, although KA did say that during Sorenson's talk and at the IFFL meetings or

conferences he attended, there was never any talk of making an investment in Merendon. KA

said that Sorenson never mentioned Arbour. KA was less confident regarding SGD, but thought

Sorenson may have mentioned SGD in the course of praising IFFL members. KA did confirm

that no one from Merendon spoke to him about the return on his Arbour investment – he only

received this information from IFFL personnel.

[646] KA was under the impression that Brost did not want anything to do with Arbour; Brost

told KA that Brost "was never going to be part of Arbour, that it was an arm's length company,

and that that's the way it was supposed to be".

[647] KA worked for Capital Alternatives (from about spring to December 2005) – his boss

there, whom he never saw, was Martyn. He was later employed by Expedia from approximately

early 2006 to the winter of 2007. At Expedia, KA reported to Casey Brost and Regier.

[648] KA received a letter from IFFL (the "Anti-Regulator Letter"), similar to a letter in

evidence signed by Brost as CEO of IFFL and titled "Confidential Communication, from the

des:k [sic] of the C.E.O." and copied to, among others, "Merendon Group of Companies".

According to KA, the Anti-Regulator Letter was sent to IFFL members during the time when

people were unable to access their offshore-managed account money and IFFL was going

through some changes. KA identified a passage that read:

Information shared by a member will be utilized by the ASC investigator to build a case against

myself and the IFFL. There is however an unseen opportunity and that remains the power of your

rights! For example, you do not have [to] respond to their calls or communications. You can

choose to see any inquiries as a threat to your personal and financial well being, you may choose

to either disregard their efforts or choose to conduct yourself in an uncooperative fashion.

[Emphasis in original.]

[649] The letter continued:

I/we cannot and will not tell you what to do, however, having fought these battles over the years

let me share one unmistakable fact, anything that you say in response to a Securities Investigation'

[sic] can and will be used against the IFFL and then you the member' [sic]. . . .

[650] At the time of the Merits Hearing, KA – in his fifties – had returned to work: "I can't

ever see myself ever being able to retire again. I owe 124 grand on my house, I have no pension,

I have no RRSPs, I have no savings; and I will be working until I die."

4. Investor Witness DR

[651] DR, a Calgary resident with "middle of the road" investment knowledge, had an enduring

power of attorney (along with his wife) over the affairs of his step-daughter, KO.

[652] DR was introduced to IFFL in 2003 by an investment counsellor he had known, who

asked DR if he wanted to look at something for which DR could achieve better returns – "in the

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neighbourhood of 30 percent a year". That "something" was IFFL. After learning that IFFL

"was basically an association of people who were being taught to invest in . . . different ways",

DR attended a presentation in approximately July or August 2004 run by an IFFL structurist –

"no specifics were talked about at that time". DR and his wife then decided to join IFFL for an

initial fee of approximately $1600, with subsequent annual fees of about $400. His step-

daughter KO also became an IFFL member. DR acknowledged that he was attracted to IFFL

initially because of the stated potential for a 30% return.

[653] After DR and KO joined, DR and his wife attended a second IFFL presentation that

"talked about more specific investments, investments that would have a Canadian component to

it as well as an offshore component":

[T]hey talked about some investment strategies where you could put money into Canadian

organizations, and a portion of that money would be forwarded to some offshore investments.

There was a gold company, an environmental company, one for buying bad debts. There [were] a

number of different offshore investments that were there, as well as a number of different

Canadian opportunities.

[654] DR received a version of the IFFL List of Companies containing various company

names, all of which he (erroneously) believed offered the offshore investment. From the list, he

only remembered the names of the two companies in which he invested – Arbour and Rapid

Express (approximately $140 000 in Rapid Express). DR said that he was told to conduct his

own research on companies in which he was interested in investing. DR could not recall if he

was "steered away from the recognizable companies [on the list] and steered towards the

unrecognized ones".

[655] DR did not consider that IFFL "advised" him to do certain things or take certain steps,

rather he "was told the process to follow" and had to take the steps himself – IFFL "made sure I

did everything myself".

[656] DR decided to purchase Arbour Preferred Shares for himself and KO after satisfying

himself from reviewing directories that Arbour was "real", the information on the website "fit in

with what I knew about the oil patch operations" and that the Arbour investment was RRSP-

eligible, which was a "key aspect for myself and also [KO]". DR "felt comfortable" at the time

with investing in Arbour. He did not recall doing due diligence on any other company from the

IFFL List of Companies other than Arbour.

[657] IFFL advised DR to contact Arbour if he was interested in it as an investment and Arbour

would send him a package. DR contacted Arbour and Arbour mailed him the subscription

agreements and OM 1. DR read OM 1 and that confirmed his decision to purchase Arbour

Preferred Shares. He considered the Arbour investment a little high risk, but thought "it was a

legitimate investment" with a chance to provide a return.

[658] DR purchased 12 210 Arbour Preferred Shares for himself personally for which he paid

$16 484 with RRSP money, with $9933 being directed to his offshore-managed account and only

$330 remaining with Arbour. DR's expectation was that the interest on his Arbour investment

would accrue on the approximately $16 000 not the $330. DR also invested approximately

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$140 000 in Rapid Express through IFFL. DR understood that IFFL took "a cut" of DR's

original investment money for various purposes – as commissions and to "defend you, if

necessary, against regulators".

[659] On or around 7 September 2004 DR purchased for KO, under the power of attorney,

905 Arbour Preferred Shares for a purchase price of $1221.75 and on 2 October 2004 a further

58 143 Arbour Preferred Shares for a purchase price of $78 493.05. DR said there were two

separate investments because the money came from KO's two separate RRSPs. KO received two

Arbour share certificates for both investments on 17 November 2004.

[660] DR understood that "IFFL has an arrangement with Arbour and other companies that

basically allowed them to take a percentage of what I had invested and put it into SGD or other

offshore investments". DR explained that he understood the Arbour investment provided "a

vehicle for investing funds in Canada", with some of the money remaining with Arbour and

some of the money being forwarded to an international investment, which in his case was SGD.

DR understood that "the largest portion of the monies that were put in wound up in an offshore

investment" – here SGD – and that the offshore investment was reflected in the SGD statement

that he received. DR also understood that Arbour or Rapid Express "would also invest in similar

investments like I was investing in, to wind up getting the returns to pay me back the amounts

that they said they would -- in the case of Arbour, it was 5.75[%] in 10 years". DR

acknowledged that OM 1 did not disclose that money raised was being forwarded by Arbour to

SGD; he had learned of that through IFFL structurists. DR recalled filling out some forms for

SGD shortly after his Arbour and Rapid Express investments.

[661] DR believed that his offshore-managed account, with "whatever dollars were in it" was

backed by gold because: SGD was the relevant entity; IFFL meetings " talked about a gold mine

that was going to make us all rich"; and he had actually "talked to people who had gone down

and seen the mine". He understood:

[T]here was enough gold in the ground [somewhere in South America] that had to come out and

obviously be processed and mined, but the value of the raw materials in the ground far exceeded

what investment monies that we had there. . . . [T]here was a mining company someplace. I

thought the management organization was SGD.

[662] DR did not recognize the names Merendon, La Conxion, Grovenor or True North, nor

was he aware of the possibility his Arbour money would be directed to any of those entities. DR

had no dealings with Merendon or Sorenson with respect to DR's Arbour investment or SGD

account. DR was never told that "Merendon Mining" was backing the SGD account. DR also

did not know if the reference he remembered at an IFFL meeting to "Merendon Mining" referred

to "Merendon Mining Corporation Limited or Merendon Mining, a U.S. entity".

[663] DR received a "token" of SGD shares for referring KO to IFFL, although he did not learn

of that compensation program until after KO invested. DR's 31 January 2005 SGD statement

reflected a credit of US$421 to DR for his referral of KO.

[664] DR received regular monthly SGD statements by mail, then later through email. The

statements eventually stopped, and DR was told his funds were "being transferred into a vehicle

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that would allow you to wind up getting your money back out on a regular basis, and it was a

Canadian-held vehicle", but he could not remember the name.

[665] Over approximately 12 to 18 months, DR withdrew $30 000 from his offshore-managed

account in various ways, including a debit card for which there likely was a fee and bank drafts.

None of KO's money was taken out. DR acknowledged that there was nothing in OM 1

indicating that he would get money back that way. DR had that expectation because of the

international side – "my understanding was that the Canadian sources would be paid out over a

10-year period of time, like the Arbour Energy shares, the Rapid Express; and the international

investments could be cashed at any point in time".

[666] After making his investments, DR attended other IFFL meetings at hotels in Calgary that

were for the general membership and conveyed "an update, state-of-the-union message delivered

by Milowe Brost, and Arbour was discussed at that point in time". Brost, whom DR understood

to be "the head of IFFL", reiterated that Arbour was under investigation by the Commission, was

"fighting it vigorously" and "believed that they were going to win". DR did not recall Sorenson

speaking at those meetings.

[667] DR responded to a 16 September 2005 letter from the Commission by giving responses in

the negative to all questions relating to whether he had received any advice from or invested

through IFFL. However, he testified that he responded that way to "an unsolicited letter from [a]

regulator who at that time I believed was not working [in] my best interests, and this was just a

kiss-off, 'get lost' kind of thing, none of your business". DR confirmed that legal representation

and certain legal fees (in unsuccessfully challenging the Commission's ability to interview him

and relating to a subsequent interview) were arranged and paid for by IFFL.

[668] Both DR and KO experienced and will continue to experience significant financial

distress from their investments. DR has had to return to work and may need to sell his company

or home. He described the effect on KO and her future as "catastrophic", given that she is an

AISH recipient with now no other source of funds.

5. Investor Witness ST

[669] ST, an Alberta resident, described herself as not a knowledgeable investor, with her

previous investments restricted to bank RRSPs.

[670] ST never invested in Arbour but made other investments through IFFL.

[671] In October 2006 ST and her partner JW were invited to an Edmonton IFFL meeting by a

structurist friend, who had invested in the IFFL "Base Metals" investment. Another structurist

spoke at the meeting – he also was apparently a private investment advisor. In the general

meeting, ST described that presentation:

What he did is promote -- what he did was talk to how regular investors weren't making any

money in the normal scheme of RRSP investment or bank interest, and how, if people invested in

a combination of onshore and offshore investments, that they could do much better. And he

drafted sort of a schedule of this is what happens with $100 000 if you go the regular silly-people

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route, and this is what you get if you are smart and go the Merendon Mining [later determined to

be Merendon Mining Nevada] route.

[672] In a separate one-on-one meeting, the structurist had ST and JW sign a form of

membership agreement similar to the Membership Agreement referred to earlier ("ST's

Membership Agreement") and pay a $1696 fee (with provision for a $424 annual renewal fee).

[673] In ST's Membership Agreement, IFFL described itself as "operat[ing] as an Educational

Service Corporation in the form of an Exclusive Members Club and possess[ing] confidential

proprietary information regarding the reorganization of capital, capital appreciation opportunities

and other asset management strategies". Members were to "be provided with Strategic Finance

information, which will posture [sic] the Member to increase their financial knowledge base",

and that information would be provided through oral presentations by "approved personnel

called Structurists". The document stated that some of the fees may be paid by IFFL to another

member as "referral fees for new members". Under services, ST's Membership Agreement

contained the same provisions as the Membership Agreement regarding IFFL's role in education,

its non-provision of advice, and its denial of being involved in solicitations or distributions of

securities.

[674] There were also confidentiality provisions, under which members agreed to keep

"Confidential Information" confidential for two years. This included a restriction from

disclosing such information to a member's professional advisers unless they required it and

observed the same restrictions as the member (and with the member responsible for any breach

by the member's adviser).

[675] After ST and JW became IFFL members, the structurist became more specific about

investment opportunities – "he talked about this onshore opportunity that just got you a regular

rate of interest at 8.75[%], and then this offshore entity through a company called IBG that

invested in a number of companies, and he mentioned Base Metals where you got significantly

better returns". ST testified that the structurist explained this, using notations on a piece of paper

now in evidence:

. . . IBG . . . he explained that to be an International Business Group that managed the offshore

investments, and then, oh, just down underneath that, you can see "BM," which is Base Metals,

and 3Sixty. And he described that as two investment vehicles that would net a better -- a good

return.

[The structurist also] mentioned that the -- the national company was Merendon Mining [ST

clarified that the Merendon entity referred to was Merendon Nevada], and that was a national

investment; and then these were the international investments that you could somehow get through

the primary investment.

[676] After returning home, ST and JW received a binder in the mail with Stellar Trust on the

cover. The binder contained information about three primary investments – Base Metals,

Alluvial and 3Sixty – along with a welcome letter and IFFL handbook. The welcome letter,

from Brost, included an IFFL List of Companies, with Merendon Nevada as one of the six

named companies.

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[677] Encouraged by their structurist friend and by "what gold was doing in the marketplace",

ST and JW chose to invest in Merendon Nevada. ST characterized their investment as:

. . . at the time we didn't really invest in a company as much as we sent our money to Merendon

[Nevada], and then we were asked to decide which offshore vehicles we were to invest in . . . .

. . . it got really confusing, because we were . . . a member of IFFL, we were looking at giving

money to Merendon Mining (Nevada), we were getting a binder from Stellar Trust, and then

inside, the investment opportunities that were offshore were connected to Merendon de Venezuela

and Merendon -- a variety of Merendon companies in South America that were associated with a

Merendon in Alberta. . . .

[678] ST thought she would be receiving, in addition to the 8.75% "domestic" return, a return

on the "international side" by the money flowing through Base Metals, Alluvial and 3Sixty, with

the money "managed by the International Business Group". ST thought "there were business

agreements to lend money to mine gold -- process" – "I think it went from Merendon Mining --

there was money that went to an IBG group who then entered into loan agreements with a variety

of organizations, including Base Metals, who would then process for gold".

[679] ST and JW decided to invest US$75 000 in Merendon Nevada because they were

"directed to" do so by the structurist – "that was the primary way to do the onshore and offshore

investment. That was . . . the only way out of any of these companies".

[680] The structurist helped JW at the bank in arranging a wire transfer to send to Merendon

Nevada on 13 December 2006 for a "Promissory Note". When the investment was confirmed by

a 13 December 2006 receipt from Merendon Colorado, ST and JW started to ask their structurist

friend some questions. They were reassured when he told them Merendon Nevada and

Merendon Colorado were "one in the same company, and they probably were just doing some

business out of that office". A 22 December 2006 letter from Brost as president and CEO of

Merendon Nevada to ST and JW enclosed "a fully executed Promissory Note". ST said they had

been expecting a "shiny piece of paper with a gold mine investment", not a promissory note,

despite earlier mentions in documentation. The promissory note had an eight-month term, with

interest payable at 8.75% per year. The promissory note stated: "This loan will be secured by a

pledge of certain proven gold reserves from the 'Glory Hole' or Patch mineral properties which

are located in Gilpin County, Colorado."

[681] ST became concerned in spring 2007, when she noticed for the first time that Brost was

the head of both IFFL and Merendon Nevada. ST and JW left the investment where it was

because they thought there was no choice. In August 2007, "our promissory note was renewed

without our signature, and that was a huge concern". However, they were assured that Brost

would be at an October 2007 IFFL meeting in Red Deer and could answer their questions. Brost

was "dismissive" and "arrogant" about their concerns. ST then did some independent research,

discovered troubling information about IFFL, and sent a registered letter and email to try to get

their money back. There was no response from October 2007 to February 2008. The emails

were sent to [email protected]. Eventually ST spoke to Capstick, who put her in touch

with Glen Selig; "Carol" was later involved (ST did not know the last name). Carol eventually

said the money would be sent in April or May 2008, but no money was ever received.

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[682] ST and JW never received any returns or repayment of principal; they did pay income tax

on interest they did not receive. ST informed Brost, through the above-noted email address, and

her structurist that she was going to talk to the Commission and the RCMP:

. . . I was told at the time that I should not do that because I was prejudicing the opportunity for

other investors to get their money back, that the company was restructuring, that there were a lot

of things happening, and I was going to create a problem. And then I was also told that they didn't

like troublemakers, and I would not get my money back if I made inquiries.

. . .

[ST was told that because she had] signed a confidentiality agreement, . . . we could take you to

court if you talk about your concerns, if you show any of the documentation.

[683] ST said her structurist had spoken of both Brost and Sorenson, and that she understood

Sorenson "had the gold mines in South America". She never quite understood how Sorenson

may have been related to one or more of the Merendon entities – "Merendon Mining (Nevada)

Merendon Mining (Venezuela), the documentation -- I mean, Merendon Mining (Alberta), it all

just seemed to run together for me".

[684] ST had no communication with Merendon, Sorenson, Merendon Venezuela or Merendon

Honduras.

6. Investor Witness DRA

[685] DRA was a Calgary resident with self-described average investment knowledge. In

approximately 2000 an acquaintance referred DRA to an individual – a Capital Alternatives

structurist – to talk about "a gold investment [with] all these great returns" in which the

acquaintance had invested. DRA eventually had several initial meetings with that structurist.

DRA became a member of Capital Alternatives and invested in a company while a member of

Capital Alternatives.

[686] Approximately one year later, DRA was told that, because of "some problems", his

membership was "switched over" to IFFL. DRA's view was that, in contrast to Capital

Alternatives, the information provided by IFFL was "more vague, and people weren't given as

much information, but were given information as they became members" of IFFL.

[687] After joining IFFL, DRA continued to deal with his previous structurist as well as two

others, one of whom was Martyn. DRA explained that the role of a structurist was to run

workshops for members and explain the process to "access . . . certain investments, certain

international opportunities", without getting into the specifics of the investment until the one-on-

one meetings. DRA liked the message from IFFL – that he could invest nationally, get

international advantages, and earn a high (possibly tax-free) rate of return. Prospective members

and members were told that the international side offered through IFFL would give individuals a

right to access money like the banks did. Individuals were also told they could invest their RRSP

money domestically, then acquire the international side as well, through IFFL. DRA

acknowledged that the specifics of the international investment opportunities offering significant

rates of return – 30% per year – were available only to IFFL members. DRA said that once an

individual joined IFFL as a member they received the IFFL List of Companies. The member

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was then told to contact the company on the list that offered the international side (for example,

Arbour) in order to access that international side.

[688] In approximately 2003 or 2004, after learning of the opportunity through an IFFL

structurist, DRA invested about $40 000 in Rapid Express. He understood that investment to be

in a promissory note, with some money "left behind for that so that it could grow", "a portion of

the money would go internationally into [managed accounts under] a bunch of different types of

structures" and "some of that money you could sort of delegate to where you wanted it to go, in

terms of whether it was, you know, gold, Merendon/SGD or, you know". He thought there was a

connection between Merendon and SGD or that they were possibly the same. DRA was under

the impression that the investment was separated into the domestic and international components

to achieve greater returns and shelter it from taxes or defer taxes. DRA understood that Rapid

Express had its own business separate from the international side.

[689] DRA learned of the Arbour opportunity when IFFL was no longer able, for some reason

(he surmised it was "technical" or "regulatory"), to offer investments in Rapid Express or another

opportunity he referred to as Quattro. In early 2004, DRA attended an IFFL meeting at which

Brost (whom DRA described as IFFL's CEO) told members that IFFL was close to creating

another vehicle – a public company offering common shares and preferred shares – for people to

access the international side. DRA soon learned that the public company was Arbour and that it

was involved in the oil and gas business. He also recalled Brost discussing Arbour's oil sands

technology.

[690] DRA became interested in investing in Arbour, which he understood offered both the

domestic and international investment. He expected a return on the international side of the

investment of about 30 to 40%. Those returns, he understood, were generated from Merendon's

gold, which was located in Honduras and Venezuela, where locals had "hobby farms" and

Merendon supplied the locals with tools and equipment in exchange for gold. Merendon would

then process the ore getting "silver, platinum and any other ores out of the gold that would all --

basically kind of what I heard was it helped finance the operation, that in itself, and also

Venezuela, and then operations like Ecuador and Peru". He also understood the high returns

were being generated from selling gold jewellery that Merendon manufactured. DRA was not

aware of any loan transaction or agreement directly between Arbour and Merendon.

[691] DRA decided to purchase Arbour Preferred Shares, not common shares, and was clear

that nobody from IFFL suggested to him which shares he should purchase. DRA believed he

contacted Arbour to send him the paperwork to complete his purchase of Arbour Preferred

Shares. He received and completed the subscription agreement, risk acknowledgement form and

other paperwork and sent those documents back to Arbour. DRA thought he received an Arbour

OM, although he would not have read it closely or relied on the information contained in it. At

the time he invested in Arbour, the only other information DRA thought he would have had

about Arbour would have come from IFFL or from conversations about Arbour with other IFFL

members or with friends investing in Arbour. DRA understood the Arbour investment was risky.

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[692] As for the international and domestic sides, DRA thought perhaps 10% of his investment

money was designated to remain with Arbour – enough to allow Arbour to continue operating.

DRA explained his understanding of Arbour's domestic and international sides:

. . . the preferred shares could be sort of like the gravy on top of the potatoes, because I was

thinking the international side was more the potatoes where, you know, the bulk of maybe your

money or earnings could occur. And if the preferred shares [did well, then] great. But if it didn't,

well, you're sort of hedged by this other side.

. . .

[M]y understanding was a portion [of the money invested] would stay, you know, a small --

probably a smaller portion would stay with Arbour to do some operations. And then, you know, a

larger amount would go internationally to -- I mean, at that time, I can't remember if it was a

managed account or a portfolio managed account . . . .

. . . part of that money would go . . . is it SGD, or is it some other company who has a loan with

Merendon? But at the end of the day, the money was being somehow directed or being loaned to

Merendon as part of the -- that international side.

. . . I'd ask other people [apart from the structurist] how is this whole thing structured? And it

seemed like every time I asked, like a lot of different times, it was always different. There was

always some different names.

[693] DRA purchased 11 182 preferred shares for $15 095.70 on 19 August 2004. He received

a share certificate dated 15 October 2004. DRA confirmed that of the $15 095.70 he invested in

Arbour Preferred Shares, he understood that only $301.91 "was going to stay in Arbour". The

balance of the money was paid to the international side and to administration fees and

commissions. DRA chose to invest the net funds ($10 868.90 after deductions) with SGD, which

was to pay a return of 3% per month.

[694] DRA said he never informed IFFL that he had purchased Arbour Preferred Shares, but he

still received the international side. He simply purchased the Arbour Preferred Shares and

sometime later began receiving the SGD account statements that reflected a portion of the money

he paid for the Arbour Preferred Shares now invested in SGD.

[695] DRA received monthly statements from SGD that showed his investments increasing in

value substantially – at the expected 3% per month. Initially the statements were mailed to him

from, he believed, Honduras. Later the SGD account statements were available through the

internet. DRA understood that Elizabeth Brost was working in Honduras "putting statements out

for Merendon -- well, okay, SGD, I guess, maybe".

[696] DRA estimated that he invested approximately $120 000 through IFFL and received back

approximately $80 000 over time, with the last amount in about 2007. His mother invested

approximately $45 000 through IFFL (not in Arbour) and received back approximately $15 000.

The early redemptions came via a cheque in the mail. Later, DRA made redemptions using a

"debit card", after filling out the required paperwork and paying a fee of some amount. The debit

card system gave way to "I think it was called Nordic they created. It was like some bank,

international bank". DRA was unsure who established "Nordic", but stated its full name was

Nordic Credit Union. He had to set up an account at Nordic and pay a fee (he thought $1200)

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from the international SGD account. Then, as DRA understood it, "you put a redemption in, and

the money from the international side would go to Nordic, and then it would come . . . right into

your -- your bank account". When Nordic stopped working for some reason, DRA was able to

have funds directly wired from the international account to his own bank. DRA assumed that

Nordic was a bank created "somewhere through IFFL . . . I think [Brost's] whole family was

involved . . . were kind of into everything".

[697] DRA never spoke to Morice about the international side, nor did he hear Morice talk to

anyone about the international side. DRA once questioned Brost about the security for DRA's

investments, particularly the international side, but could not recall if Brost stated that the

investments were secured by Merendon, SGD or Base Metals.

[698] DRA recognized the names of Houston and Kendall – DRA knew they were associated

with Brost but did not know they were associated with Sorenson. He was unsure if Houston and

Kendall were the people behind Steller. DRA had also heard the names La Conxion, Grovenor

and True North, likely through IFFL, but did not know what their roles were.

[699] DRA became a facilitator (who told people about opportunities) and a structurist (who

kept track of investments), the latter for only a short time. He referred about 15 people to IFFL,

some of whom "went through that Arbour investment". Although not sure that he was supposed

to mention the name Arbour, he did occasionally mention it to some people. DRA received

compensation – a small amount of cash when DRA recruited someone to become an IFFL

member, and, when someone DRA solicited invested in one of the IFFL investments offering the

international side, DRA's international account was credited a percentage of the amount invested.

[700] DRA met Sorenson in both Honduras and Calgary. DRA travelled to Honduras in

approximately 2003 (before his Arbour investment) after being "kind of invited" through IFFL

around the time he was interested in becoming a facilitator. IFFL paid for the trip. About

12 others took the trip, including Brost, who was "showcasing . . . leading people and showing

them what was going on there". During the trip Sorenson was also "kind of leading us through

some of the facilities. I remember, you know, they brought a bunch of trays of gold and silver

out, and, you know, they poured that ingot gold, . . . passing it around. Actually, we were taking

pictures together." While in Honduras, DRA visited Sorenson's home. There was no discussion

of Arbour during the trip to Honduras. DRA's Calgary contact with Sorenson occurred at IFFL

meetings. At one such meeting, Sorenson "thanked everybody for making him a very wealthy

man". DRA understood that Brost and Sorenson had "a business relationship" and said that

Brost at IFFL meetings would sometimes "kind of talk about how he had to be negotiating with

[Sorenson] about certain rates of return".

[701] In about 2009, DRA sent a letter to Sorenson, Werner, Blaikie and Blakey (and to two

women, apparently Sorenson's wife and daughter) asking for DRA's and his mother's money –

either the principal and interest or at least the principal. DRA said he did not address it to IFFL

or his structurists because he assumed that the money had been "loaned to either SGD and then

probably to Merendon". DRA apparently learned of this list of names through a "recovery

group", from which he also received the information that "Greywolf" was associated with

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Sorenson, as was the email address [email protected]. DRA did not receive any

response to his letter.

[702] DRA received a letter from Brost similar to the Anti-Regulator Letter received by KA.

[703] When contacted by the Commission regarding an interview, DRA challenged his

interview summons in court. For both the unsuccessful challenge and the subsequent interview,

DRA had legal representation arranged for him through IFFL.

7. Investor Witness SC

[704] SC, a Calgary resident, was introduced to IFFL through friends. She and her husband

became IFFL members on 5 September 2004 for $1712, with an annual renewal fee of $428.

The IFFL membership agreement signed by SC is very similar to ST's Membership Agreement

dated approximately two years later.

[705] Before joining IFFL, SC attended a small meeting at the IFFL office in Calgary at which

a structurist spoke. She did not receive any written information at the time, nor did she recall

specific companies being named, but IFFL structurists:

. . . told people about different strategies for rearranging their finances and putting them on the

path to financial freedom. . . . asked several people what their impression of financial freedom

was, and then they talked about different investment opportunities. One was the gold mining, the

second was to do with environmental cleanup, and there was a third that had to do with consumer

debt.

They talked about how the banks had a lot of money offshore and how they, you know, had

preferred interest tax rates for doing so, they talked a lot about Paul Martin, they discussed the

various interest rates that were being offered on the three investment that they talked about.

[706] SC was told that, to go any further than the first workshop, she and her husband had to

become IFFL members. SC understood that she had to join IFFL to invest in the opportunities

being discussed. SC and her husband decided to join IFFL. SC received from IFFL an IFFL List

of Companies – one of the six companies set out was "Capital Alternatives" which "offers a

variety of Preferred Share opportunities". SC stated her theory as to why she received this letter:

. . . my understanding of why we all got this letter was because if they -- if they told you that they

were offering or that they were recommending companies like Canadian Tire, Warren Buffet, that

they wouldn't be seen as just promoting their own investments. They wouldn't be seen, then, as

sort of acting like financial advisors or brokers.

[707] At a second meeting, SC became interested in SGD, the gold mining venture, after seeing

a video of the Merendon Mining operations. The structurist asked SC and her husband for their

financial information, such as their net worth and assets. The structurist then explained to SC

different things investors could do to fund an investment, such as using a home equity line of

credit or cashing in RRSPs. SC and her husband were advised they could offset the interest

earned on the Canadian investment with the interest paid on the loan. SC was advised that there

were two levels of these managed offshore accounts; one offered a higher interest rate if RRSP

funds were used to invest, to compensate for the "tax hit up front"; the other garnered a lower

interest rate if "ordinary funds" were used.

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[708] SC understood that "Merendon" was the gold mining operation they would be investing

in and that "there was a loan agreement between Grovenor Trust and Syndicated Gold

Depository, and from what we understood, Grovenor Trust took the funds, lent them to

Syndicated Gold Depository; Syndicated Gold Depository funded Merendon Mining's activities".

SC understood Merendon's activities to include refining and purchasing gold, as well as

conducting a jewellery business. SC did not understand whether "this money that we invested in

the Canadian operations then was sent to Grovenor Trust".

[709] SC and her husband used a home equity line of credit (suggested at both meetings by

IFFL as a possible funding strategy) to invest $100 000 in Rapid Express – apparently a

transportation company, although they were provided with few details. When asked why they

invested in Rapid Express when she was interested in the gold company, SC explained that

Rapid Express was "the Canadian company that we had to invest in in order to have the offshore

Syndicated Gold Depository". SC described her understanding of the international side of the

investment:

You signed an account manager agreement, and for that you -- you didn't have any ownership of

the funds, but you just managed the accounts, and you would get a statement every month

showing what interest you would get on your money. The money that was transferred offshore,

there was quite substantial administration fees taken off of it, and there was also a $2,000 fee for

opening the managed account, and then it was converted to U.S. dollars. So $100,000, I think,

became like $54,000 U.S. by the time it was in U.S. funds. And then the interest rate -- they did

give us the higher interest rate, even though it was not RRSP funds that we used for the

investment.

. . . you didn't have ownership of [the managed account], because if you had ownership of it, it

meant that you would have to pay tax up front on any interest that you got, so your -- your real

investment was with the Canadian entity.

. . . we understood that -- that our investment was highly backed up with gold reserves in

Merendon Mining, and that Gary Sorenson, you know, wanted this money to purchase more gold

ore, more gold and do more refining. So that's how it was generated.

[710] SC confirmed that with her Rapid Express investment she became an account manager

with an offshore company called Transiciones Universal, which "managed some money that had

somehow magically gotten into Grovenor", which "then somehow loaned money to SGD", which

"apparently had some obligation to Merendon to provide funds to it". SC agreed with the

suggestion that "you knew that you weren't an investor in Merendon, but you knew your money

may somehow end up there".

[711] As for which Merendon entity was referred to, SC confirmed that the Merendon Mining

they were told the most about was Merendon in Honduras. She understood partly from what

IFFL was telling her that "Sorenson was Merendon Mining" in Honduras. She also knew that

some members and structurists had travelled to Honduras – "you were able to arrange through

your structurist to go and take a tour of the refinery, and it was Gary Sorenson's residence that

everyone stayed at". SC did not travel to Honduras. SC never spoke to anyone from Merendon

and had never met Sorenson or seen him at an IFFL meeting.

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[712] SC did not remember a subscription agreement or offering memorandum, nor did she

ever speak with anyone at Rapid Express. She and her husband thought the investment had

"some risk", but with the backing of "big gold reserves", they had the understanding from their

first meeting with the IFFL structurist that the Rapid Express investment was less risky and more

secure than the consumer debt and environmental opportunities.

[713] SC received monthly SGD statements of account by email. Three SGD statements of

account – for 30 November 2007, 9 November 2007 and 13 October 2007 – showed that SC's

international investment grew from a balance of $76 855 as of 1 September 2005 to $134 109.48

as of 1 November 2007, with the "Asset Reassigned" on 2 November 2007. The increase was

attributed to $64 854.46 in interest earned, less $9050 paid in redemptions and fees. SC

understood her redemptions were coming from the interest shown as being earned on the SGD

account. SC acknowledged that receiving some cash gave her some confidence in the

investment:

[W]e had paid out thousands of dollars in interest on our home equity line of credit, we paid

numerous fees. And -- but we hadn't received any return on our Canadian investments, and so we

wanted to know whether there was actually some money there anywhere. So, yes, I suppose that's

correct, it did give us a bit of confidence that at least there was some money.

[714] SC did not receive the principal back from the Rapid Express investment, nor any returns

from it.

[715] SC also invested approximately $130 000 in Strategic Metals, once through Capital

Alternatives (which they were told was strictly a simple investment paying 14.95 percent per

year for five years with no related offshore managed accounts), and later approximately

$129 800 through IFFL (which was a vehicle for placing more money into SGD or Merendon).

Although SC did not receive "returns" on that investment, she accessed some "redemptions".

However, because she was never satisfied as to how to report wire transfer redemptions for tax

purposes, she did not redeem any. She did, however, redeem approximately $6800 through the

debit card or business expense program, which was a mechanism for accessing the offshore

money on a tax-free basis (although the expenses were apparently not required to be actual

business expenses). She completed the debit card application for a fee of approximately $1400

and received the debit card in the mail with a letter from True North. After the business expense

program closed down because of some accusation of money laundering, she heard of another

method of accessing money through a Nordic Credit Union or Nordic Merchant Credit Union

account, but did not pursue that.

[716] In trying to recover her principal, SC unsuccessfully contacted various parties, including

IFFL and Brost (whom she understood was the CEO of IFFL). She did not think that Brost was

involved in any of the companies in which IFFL members were investing.

[717] At the last IFFL meeting she attended, SC and the others were told that all account

managers would become owners in a limited partnership and would be allowed to tell other

people about that, unlike "the past investments where you weren't really supposed to speak to

other people about your investment".

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[718] SC received an email setting out the "two correct and legal responses" for IFFL members

who might be contacted by the Commission. At one point Brost referred SC to Blakey, whom

Brost identified as IFFL's lawyer. SC met with Blakey at the Merendon office in Calgary.

[719] SC, who never invested in Arbour, was not familiar with the company or its business.

[720] The extant allegations set out in the Notice of Hearing raise the following issues:

Did any or all of Arbour, Morice, Brost and IFFL illegally trade in or distribute

Arbour securities (or both)?

Did any or all of OM 1, OM 2 and OM 3 contain misrepresentations or untrue or

misleading statements?

Did either or both of Brost and IFFL illegally act as advisors within the meaning

of the Act?

If either or both of Brost and IFFL engaged in illegal trades, illegal distributions

and unregistered advising (or some of that misconduct), did they breach the Brost

Undertaking or the IFFL Undertaking, respectively, or fail to comply with the

Undertaking Order accepting the Brost Undertaking and the IFFL Undertaking?

Did any or all of Arbour, Morice, Brost, IFFL, Merendon and Sorenson engage in

a course of conduct relating to the Arbour Preferred Shares that they knew or

reasonably ought to have known would perpetrate a fraud on Alberta investors?

If any or all of the Respondents engaged in any such misconduct, did they also act

contrary to the public interest?

A. Knowledge

[721] In considering the allegations against the three individual Respondents – Morice, Brost

and Sorenson – we have, based on the totality of the evidence, reached conclusions about what

they knew or reasonably ought have known at particular times. We have not assumed simply

because someone at Arbour, IFFL or Merendon was aware of particular information that Morice,

Brost or Sorenson, respectively, automatically and necessarily had the same information.

However, as discussed herein, we have concerns regarding Sorenson's credibility, and about the

accuracy of some of the evidence of Morice and Brost. We have, therefore, treated with

scepticism – and in some instances found untruthful – certain of their evidence indicating what

they knew or did not know at various times. Further, we have drawn reasonable inferences from

the evidence as a whole in reaching our conclusions in this area.

IV. ISSUES FOR DETERMINATION

V. ANALYSIS AND FINDINGS

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B. The Arbour OMs

1. Trades and Distributions of the Arbour Preferred Shares

[722] Alberta securities laws and our regulatory system are ultimately directed at the protection

of investors and the fostering of a fair and efficient Alberta capital market. Our regulatory

system was not designed to ensure successful investments but rather to "ensure that investors are

treated fairly and put in a position to make reasonably informed investment decisions suitable to

their needs and risk tolerances (Capital Alternatives at para. 57). In furtherance of those

objectives, Alberta securities laws set out requirements and principles of conduct for the sale of

securities.

[723] During the period relevant to the allegations of illegal trades and distributions of Arbour

Preferred Shares, section 75(1)(a) of the Act provided that a person or company must not trade in

a security unless registered to do so with the Executive Director. This registration requirement

was intended to provide investors with the benefit of the involvement of a trained individual – a

registrant – knowledgeable about the capital market, the particular securities being sold and the

particular investor's financial position, investment objectives and risk tolerances.

[724] Section 110(1) of the Act provides that a person or company must not distribute a

security unless a preliminary and final prospectus have been filed and receipted by the Executive

Director. This prospectus requirement is intended to assist investors with making informed

investment decisions through the provision of a prospectus containing full, true and plain

disclosure of all material facts relating to the securities offered and the issuer of the securities.

An issuer is defined in section 1(cc) of the Act as a person or company that has outstanding

securities, or is issuing or proposes to issue securities.

[725] When assessing the applicability of the registration and prospectus requirements, we

consider what constitutes a "trade" and a "distribution" within the meaning of the Act.

[726] Section 1(jjj) of the Act defines "trade" to include "any sale or disposition of a security

for valuable consideration" (section 1(jjj)(i)) and "any act, advertisement, solicitation, conduct or

negotiation made directly or indirectly in furtherance of" any such sale or disposition

(section 1(jjj)(vi)).

[727] "Distribution" includes "a trade in securities of an issuer that have not been previously

issued" (section 1(p) of the Act).

[728] There was no dispute, and we find, that the Arbour Preferred Shares were securities under

(at least) two of the categories of "security" as defined in the Act – "any document, instrument or

writing commonly known as a security" (section 1(ggg)(i)); and any share or stock

(section 1(ggg)(v)).

[729] There was no dispute that Arbour sold the Arbour Preferred Shares to investors and for

the amounts set out in the Arbour OMs – Arbour thus initially received the proceeds from the

sale of the Arbour Preferred Shares. The Arbour OMs were Arbour's documents and it bore

direct responsibility for them. There was no dispute that the sales of the Arbour Preferred Shares

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by Arbour were trades under section 1(jjj)(i) of the Act and, as newly issued securities,

distributions of securities under section 1(p). We so find.

[730] Morice, as president or CEO (or both) of Arbour, signed the Arbour OM certificates and

Distribution Reports (in one such report he did not indicate his position with Arbour), was

primarily responsible for the content of the Arbour OMs, and authorized, permitted or

acquiesced in Arbour's selling of the Arbour Preferred Shares. These were acts in furtherance of

sales of such securities. We find that Morice engaged in trades of Arbour Preferred Shares

within the meaning of section 1(jjj)(vi) of the Act. Because the Arbour Preferred Shares were

newly issued securities, we also find that Morice engaged in distributions of such securities

under section 1(p).

[731] Brost, we have found, was principally responsible for resurrecting Arbour – transforming

it from a bankrupt shell public company to a going concern raising millions of dollars through

sales of Arbour Preferred Shares to public investors. We have also found that Brost exerted

significant control over Arbour's affairs certainly in its early stages and in all major decisions

involving Arbour, including its fundraising activities. Brost was involved in the decision to raise

money through the sale of Arbour preferred shares to IFFL members, which provided IFFL

structurists with an RRSP-product to sell to investors. Brost had a role in preparing the Arbour

OMs, involved (at least) in some general discussions about the structure of the preferred share

offering. Brost was also actively involved in recruiting and appointing both Weis and Morice as

directors of Arbour and Morice as its president. Brost could, and did, exert control over Arbour

affairs through Weis and Morice, primarily through Morice.

[732] Brost, we have found, was also the guiding and controlling mind of IFFL. He directly

promoted the sale of Arbour Preferred Shares by providing to IFFL members information about

investing in Arbour, including the Brost-authored IFFL List of Companies mentioning Arbour.

Brost indirectly promoted the sale of Arbour Preferred Shares by providing information about

investing in Arbour at IFFL structurist conferences. IFFL structurists, in turn (whether explicitly

or implicitly directed to do so by Brost), solicited IFFL members to invest in Arbour by means

including the Brost-authored IFFL List of Companies mentioning Arbour. Brost, IFFL and (in

turn) each IFFL structurist received commission money based on the amount of money IFFL

members invested in Arbour Preferred Shares through that structurist. Arbour itself did not

advertise or otherwise promote the sale of the Arbour Preferred Shares to investors. Rather,

IFFL members, as directed by IFFL structurists or other personnel, contacted Arbour directly and

requested an offering memorandum to subscribe for Arbour Preferred Shares. The selling efforts

of Brost and his organization IFFL were very successful – the majority of the Arbour Preferred

Share purchasers were IFFL members, with more than half of the sales – totalling over $25

million – occurring in Alberta to Alberta investors.

[733] The evidence is overwhelming that Brost and his organization IFFL engaged in acts in

furtherance of sales of Arbour Preferred Shares; therefore, they engaged in trades as defined in

section 1(jjj)(vi) of the Act. We so find. Because the Arbour Preferred Shares were newly

issued securities, we also find that Brost and IFFL engaged in distributions of such securities

under section 1(p).

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[734] It is clear from the evidence that none of Arbour, Morice, Brost and IFFL was registered

with the Executive Director during the time the Arbour Preferred Shares were traded, and that no

prospectus was filed or receipted by the Executive Director for the distribution of the Arbour

Preferred Shares.

[735] Therefore, unless exemptions from the registration and prospectus requirements of the

Act applied to the trades and distributions of the Arbour Preferred Shares, Arbour, Morice, Brost

and IFFL have contravened sections 75(1)(a) and 110(1) of the Act.

2. Availability of the OM Exemption

(a) Registration and Prospectus Exemptions

[736] Recognizing that not all investments or every investor may require the full protection

provided by registration and a prospectus, Alberta securities laws contain a number of

exemptions from these requirements. These exemptions have been crafted to eliminate some of

the investment's risk by stipulating terms that address attributes of the individual investor (such

as investor sophistication, financial resources or relationship to the issuer), address the nature of

the security itself, or provide alternative sufficient information about the offering and the issuer

to enable eligible investors to make informed investment decisions.

[737] Because the exemptions relieve compliance from two of the fundamental requirements of

the Act, the issuer or a person seeking to rely on an exemption to trade and distribute securities is

responsible for ensuring that the exemption is available for each particular trade or distribution at

the time of the trade or distribution, and ensuring strict compliance with all of the requirements,

conditions and restrictions associated with the relied-on exemption (Re InstaDial Technologies

Corp., 2005 ABASC 965 at para. 61; Re Euston Capital Corp., 2007 ABASC 75 at paras. 103,

115-17, 119; and Re Bartel, 2008 ABASC 141 at para. 115).

[738] There was no dispute that Arbour, Morice, Brost and IFFL purported to rely primarily on

the OM Exemption to trade and distribute the Arbour Preferred Shares to investors.

(b) The Law

(i) The OM Exemption Requirements

[739] The OM Exemption requirements were set out in MI 45-103 until 14 September 2005,

when NI 45-106 came into force. During the period relevant to the allegations of illegal trading

and distributing, the OM Exemption requirements in section 2.9 of NI 45-106 were comparable

to those in MI 45-103 – there were minor differences in wording (in our view, of no significant

effect) and differences in section numbers. That being the case, and given that the first two

Arbour OMs were governed by MI 45-103, we set out its requirements.

[740] Sections 4.1(3) and (4) of MI 45-103 exempted a trade and distribution from the

registration and prospectus requirements of the Act if, among other requirements: (i) the trade

was "by an issuer in a security of its own issue"; (ii) the issuer delivered to each purchaser a

disclosure document called an "offering memorandum" in the required form; (iii) the issuer

obtained from each purchaser a signed risk acknowledgement in the required form; and (iv) each

purchaser either invested no more than $10 000 in the offering or qualified as an "eligible

investor".

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[741] Section 4.2 of MI 45-103 prescribed that an offering memorandum was to be in the

"required form" (in this case, because Arbour was a reporting issuer and thus a "qualifying

issuer", Form 45-103F2 Offering Memorandum for Qualifying Issuers ("Form F2")). As the

Commission commented in Capital Alternatives at para. 75, "[t]he offering memorandum is . . .

the foundation of the OM Exemption". Offering memoranda are neither vetted by the

Commission nor receipted by the Executive Director. Consequently, there is a heavy onus on

those relying on an offering memorandum to ensure that it contains information that is consistent

and accurate in all material respects.

[742] Form F2 prescribed the content of an offering memorandum for qualifying issuers. This

included: (i) a detailed breakdown of how money raised in the offering was to be used; (ii) a

business summary, namely a brief description of the business intended to be carried on by the

issuer in the ensuing 12 months; (iii) information about each director, senior officer, "promoter"

and "principal holder" of the issuer; and (iv) a discussion of relevant risk factors related to the

investment offered, the issuer and the issuer's industry.

[743] Sections 4.4(1) and (2) of MI 45-103 stipulated that an offering memorandum must be

certified – as "not contain[ing] a misrepresentation" – and signed by the issuer's CEO and CFO

(or persons so acting), certain (or all) directors and each promoter. The instructions for Form F2

included a reminder that it was an offence to make a misrepresentation in an offering

memorandum.

[744] Section 4.4(3) of MI 45-103 further stipulated that an offering memorandum must be true

(free of misrepresentations) when signed by the designated individuals and must remain true

when the offering memorandum is delivered to the purchaser. Under section 4.4(4), if an

offering memorandum ceased to be true after delivery to a purchaser, the issuer was prohibited

from concluding the transaction unless the purchaser received an updated offering memorandum

containing a newly signed certificate and the purchaser signed a new purchase agreement.

[745] Under section 7.1(1) of MI 45-103, on completion of a distribution of securities made in

reliance on the OM Exemption (as well as certain other exemptions not in issue here), an issuer

was required to file, within 10 days, a Distribution Report, signed and certified as true by an

individual acting on behalf of the issuer. The Distribution Report was to report: information

about the issuer; details of the distribution or distributions, including all distribution dates, the

number, type and value of the securities distributed and identification of the exemption relied on;

and commissions and finders' fees.

(ii) Untrue and Misleading Statements Prohibited

[746] As noted, offering memoranda must be certified that they do not contain

misrepresentations. In addition to that required certification by the proper signatories, Alberta

securities laws, in furtherance of the public interest, prohibit certain capital market misconduct

by those involved in securities transactions.

[747] Section 92(4.1) of the Act (previously section 92(3)(c)) prohibits the making of untrue or

misleading statements in connection with securities transactions.

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[748] Until 7 June 2005, section 92(3)(c) of the Act provided:

. . . no person or company, with the intention of effecting a trade in a security or exchange

contract, shall

. . .

(c) make a statement that the person or company knows or ought reasonably to

know is a misrepresentation, . . .

[749] Misrepresentation is defined in section 1(ii) of the Act as:

(i) an untrue statement of a material fact, or

(ii) an omission to state a material fact that is required to be stated, or

(iii) an omission to state a material fact that is necessary to be stated in order for a statement

not to be misleading; . . .

[750] The definition of misrepresentation requires that the statement or omission be in relation

to a material fact. A material fact is defined in section 1(gg) of the Act. Until 7 June 2005, the

definition stated that a fact is material when it: (i) "significantly affects" the market price or

value of the securities; or (ii) "would reasonably be expected to have a significant effect on the

market price or value of the securities". The former is objective; the latter is objective from the

perspective of a reasonable investor. As of 8 June 2005, the former element was removed,

leaving only the latter.

[751] Effective 8 June 2005, section 92(3)(c) of the Act was repealed and replaced with

section 92(4.1), which states:

No person or company shall make a statement that the person or company knows or reasonably

ought to know

(a) in any material respect and at the time and in the light of the circumstances in

which it is made,

(i) is misleading or untrue, or

(ii) does not state a fact that is required to be stated or that is necessary to

make the statement not misleading,

and

(b) would reasonably be expected to have a significant effect on the market price or

value of a security or an exchange contract.

[752] This Commission has concluded that the replacement of section 92(3)(c) of the Act by

section 92(4.1), in conjunction with the amendment to the definition of "material fact", generally

had no significant or substantive effect (Capital Alternatives at para. 69; and Re Maitland

Capital Ltd., 2007 ABASC 357 at para. 153).

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[753] To establish a misrepresentation under either section 92(3)(c) or 92(4.1) of the Act, it

must be proved that: (i) a statement was made by a respondent; (ii) the respondent knew or

reasonably ought to have known that the statement was, in a material respect, untrue or omitted a

fact required to be stated or necessary to make the statement not misleading; (iii) the respondent

knew or reasonably ought to have known that the statement would reasonably be expected to

have a significant effect on the market price or value of a security; and (iv) in the case of a

statement to which section 92(3)(c) applied, it was made with the intention of effecting a trade in

a security.

3. Parties' Positions

(a) Staff

[754] Staff submitted that "Arbour failed to include certain information and misstated other

information in each of the Arbour OMs", including: no reference to Merendon; failure to

disclose Arbour's listing status; failure to file on SEDAR the incorporated-by-reference

2004 AIF; misleading disclosure about, and failure to disclose changes in, Arbour's directors and

officers; misleading information as to the use of $10 million of the proceeds; inconsistent

statements regarding the purchase price of COREL; failure to disclose certain events that

required an updated offering memorandum; failure to disclose the Sedalia participation

agreement and the existence of Arbour US; insufficient disclosure about Arbour's offshore oil

and gas acquisitions; failure to incorporate by reference updated MD&A; and failure to disclose

accurately the number of Arbour Preferred Shares distributed. Staff emphasized that an issuer

purporting to rely on the OM Exemption must use a complete and accurate offering

memorandum with proper certification, both updated as needed.

[755] Staff submitted that the Arbour OMs were so deficient – non-compliant with the

OM Exemption requirements and containing misrepresentations and false certificates – that the

OM Exemption was not available for trades and distributions of the Arbour Preferred Shares

purportedly made under the OM Exemption. To that end, Staff contended that the deficiencies in

the Arbour OMs went to the core of what an offering memorandum is intended to do – provide

investors with fair and reliable information about the issuer of the investment on offer, its

management, its business and objectives, and how investor money will be used – and fatally

undermined the intent of the OM Exemption. Therefore, given that no prospectus was filed and

receipted and none of Arbour, Morice, Brost and IFFL was registered under the Act to trade in

securities, Staff submitted that their trades and distributions of Arbour Preferred Shares

purportedly made under the OM Exemption were illegal and contrary to sections 75(1)(a) and

110(1) of the Act.

[756] Concerning the misrepresentations or untrue or misleading statements alleged under

section 92(4.1) of the Act (and its predecessor), Staff contended that Arbour (as the issuer) and

Morice (as the individual at Arbour responsible for preparing the Arbour OMs) made each of the

noted misstatements or omissions in the Arbour OMs. Staff also contended that Arbour and

Morice knew, or reasonably ought to have known, such misstatements or omissions were in

some material respect misleading, untrue or omitted a fact necessary to make the statements not

misleading. Staff further contended that, as the Arbour OMs were used to sell Arbour Preferred

Shares, such misstatements or omissions were made with the intention of effecting trades in

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securities. Finally, Staff contended that such misstatements or omissions either alone or in

combination would reasonably be expected to have a significant effect on the market price or

value of the Arbour Preferred Shares. Thus, Staff submitted, Arbour and Morice contravened

section 92(3)(c) of the Act until 7 June 2005, and section 92(4.1) from 8 June 2005.

(b) Morice

[757] Morice acknowledged the inaccuracy of some of the information contained in the Arbour

OMs. However, he submitted that errors and omissions in the Arbour OMs did not constitute

"misrepresentations" within the meaning of the Act. Morice distinguished the facts here from

those in Capital Alternatives, and argued that the "few faults" in the Arbour OMs "pointed to by

Staff that are supported by the evidence" were not material and certainly not "'so serious and

pervasive as to undermine' the foundation of the OM Exemption legitimizing the distributions in

this matter".

[758] Morice further argued that investors did not rely on the Arbour OMs when they

purchased Arbour Preferred Shares. Rather, "[t]hey were all attempting to get their money 'off

shore' into gold backed, managed accounts that would give them five or six times the rate of

return they could expect on a conservative investment in Canada". Morice noted that almost all

of the investor witnesses "were aware that Merendon had some involvement in that plan".

Morice also noted that no investor witness gave evidence that they were in any way misled or

deceived by any information in the Arbour OMs; or that, if they had been told their money would

be paid to Merendon, they would have altered their investment decisions. Thus, Morice

contended, any disclosure defects in the Arbour OMs were not material – would not reasonably

be expected to have a significant effect on the market price or value of the Arbour Preferred

Shares.

[759] Morice submitted that, although the "material fact" definition was incorporated into

section 92(4.1) of the Act, there are "differences in approach and meaning" between

sections 92(3)(c) and 92(4.1), "particularly in the giving and taking of legal advice as to

inclusion or exclusion of certain facts". No elaboration on this point was forthcoming.

[760] Morice further submitted that he should not be found to have contravened

section 92(3)(c) of the Act or section 92(4.1) because one or more of the following applies to

each of the alleged misrepresentations, or untrue or misleading statements: the statements or

omissions would not reasonably be expected to have a significant effect on the market price or

value of the Arbour Preferred Shares; the statements or omissions were mistakes or oversights or

matters about which Morice had no, and ought not to have had, knowledge; and the statements or

omissions were made by Morice on legal advice, on which Morice reasonably relied. Morice

emphasized that the Arbour OMs "were prepared under the supervision and advice of a senior

securities lawyer" – Skeith – who was involved "with Arbour, Brost, Strashok, Weis, and

Sorenson" before being involved with Morice. Morice pointed out that Skeith believed, based on

the information available at the time, that the Arbour OMs were accurate and complied with the

OM Exemption requirements.

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(c) Arbour, Brost and IFFL

[761] As noted, Brost and IFFL did not participate in the Merits Hearing and Arbour did not

participate in the majority of the Merits Hearing. None of them made submissions.

4. Review of the Arbour OMs

[762] We review each of the three Arbour OMs in turn to determine whether any (or all) of

them contain misrepresentations within the meaning of the Act and, if so, whether any (or all) of

them are so deficient as to render the OM Exemption unavailable for the trades and distributions

of the Arbour Preferred Shares made in reliance thereon.

(a) Investor and Expert Evidence Not Necessary

[763] Morice suggested a requirement for evidence from investors indicating that they would

not have purchased Arbour Preferred Shares had they had been accurately informed, and a

requirement for expert evidence as to the effect of any misrepresentations in the Arbour OMs on

the market price or value of the Arbour Preferred Shares.

[764] We disagree. Common-sense inferences about materiality may suffice in certain cases

(Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23 at paras. 58, 61), such as

this proceeding.

[765] Indeed, as an expert tribunal with specialized knowledge of the Alberta capital market

and securities regulation, we are well positioned and able to draw inferences as to the objective

view of a reasonable investor. This includes a determination as to whether untrue or omitted

facts would reasonably be expected to have a significant effect on the market price or value

placed on securities by reasonable investors – a proxy for this is, essentially, determining

whether there is a substantial likelihood that such facts would have been important or useful to a

reasonable prospective investor in deciding whether to invest in the securities on offer at the

price asked (Capital Alternatives at para. 239; and Sharbern at para. 61). The OSC recently

described its role as a specialized tribunal capable of making determinations of what is a material

fact without the aid of experts or investor witnesses (Re Coventree Inc. (2011), 34 OSCB 10209

at paras. 157-58):

The materiality standard applicable in this case is an objective test based on reasonable

expectation. Determining questions such as whether a fact is a material fact, whether a material

change has occurred, the effect of events or developments on the market price or value of

securities and the adequacy of disclosure made, are matters squarely within our expertise as a

specialized tribunal. While the evidence of experts, shareholders or investors may be relevant or

useful, we do not need such evidence in order to make these decisions (see Re Donnini (2002), 25

OSCB 6225 at para. 123, [Rex Diamond Mining Corp. v. Ontario Securities Commission, 2010

ONSC 3926 (Div. Ct.)] at para. 3 and [Re Biovail Corporation (2010), 33 OSCB 8914] at para.

80). No evidence of experts or of Coventree public shareholders was introduced. We did hear

evidence from a number of individuals involved in the purchase of ABCP [asset-backed

commercial paper] by investors.

In Rex Diamond [at para. 3], the Court recognized the [OSC's] expertise when it stated that

"whether a material change occurred is a matter that is central to the expertise of the [OSC]". The

same principle applies to the [OSC's] determination of whether a fact constitutes a "material fact".

[766] Our role is similar; we adopt the OSC's reasoning on this point.

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[767] That said, we are cautious not to use hindsight in our assessments of materiality, and we

do not hold Arbour to a standard of perfection. As the OSC commented in Re YBM Magnex

International Inc. (2003), 26 OSCB 5285 at para. 90: "Assessments of materiality are not to be

judged against the standard of perfection or with the benefit of hindsight. It is not a science and

involves the exercise of judgement and common sense."

[768] Securities regulation does not focus on what the market or investors do with mandated

information provided to them. Rather, the objective of securities regulation is to oblige those

who seek money from public investors and the capital market to provide current, truthful and

accurate information in prescribed formats, which can then be used by those in the capital market

as a basis for making reasonably informed investment decisions. That a particular investor or

investors may not read or rely on such information in making investment decisions does not

relieve an issuer of its obligations to provide accurate and reliable information and to comply

with Alberta securities laws when soliciting money from the public. The expectation is that

issuers relying on the OM Exemption will use offering memoranda containing the prescribed

content, which is both consistent and accurate in all material respects, regardless of investor

reliance.

(b) OM 1 (14 July 2004)

(i) Disclosure

No Reference to Merendon – Use of Proceeds, Business Summary, Risk Factors

[769] In the "[d]escription of intended use of available funds" at section 1.2, Arbour disclosed

that $32 379 071 of the maximum offering would be used for "[a]cquisitions of technologies and

properties in the oil and gas sector with surplus funds placed in short term investments until

required for appropriate acquisitions". Another $400 000 was to be applied to "working capital".

[770] In section 2.1 "Business Summary", under Item 2 "Information About Arbour Energy

Inc.", Arbour disclosed that it "was established" in April 2009 to carry on oil and gas exploration

and development. It discussed its few oil and gas holdings or ventures. These included what

was described as Arbour's "preliminary agreement" reached on 31 May 2004 to acquire a

producing oil and gas property from Crazy Hill at an agreed purchase price of $1 million

($350 000 and 650 000 Arbour common shares), with a closing scheduled for 31 July 2004. The

evidence was that the Crazy Hill acquisition was still being negotiated at the date of OM 1 and

did not close until 1 November 2004.

[771] In sections 8.1 and 8.2 – "Risk Factors" and "Industry Conditions" – Arbour provided a

number of what appeared to be boilerplate risk factors and industry conditions applicable to

issuers carrying on oil and gas exploration and development operations.

[772] The evidence was that Arbour started advancing to Merendon money raised from the sale

of Arbour Preferred Shares shortly after receipt from investors. The first advance was made on

27 July 2004 and frequent advances continued until the last of the $10 Million Loan funds were

advanced on 8 December 2004.

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[773] Form F2 – and thus the OM Exemption – specifically required disclosure of how money

raised was to be used by the issuer. OM 1 stated that there was no minimum offering and that

"funds invested are available to Arbour and need not be refunded to the subscriber". Section 5.2

of OM 1, however, provided that the gross proceeds would "be released to [Arbour] for its use"

two days after "Closing". Therefore, it is clear that Arbour was not entitled to use invested

money while in the course of selling the Arbour Preferred Shares under OM 1, until each stage of

the distribution was complete. Arbour's advancement of loan money to Merendon within two

weeks of the date of OM 1 showed that Arbour made almost immediate use of investor money,

and then continued to make such advances, without regard for the wording of section 5.2 of

OM 1 – according to the evidence, the first closing was on 20 September 2004, with subsequent

closings approximately every month after that.

[774] There was also a lack of detailed description as to how the money raised was to be

expended. OM 1 contained no disclosure that Arbour's intended use of proceeds was to loan

$10 million to Merendon. The use to which Arbour put the money raised almost immediately

and continuing throughout the currency of OM 1 – the $10 Million Loan to Merendon – was not

consistent, or sufficiently so, with its disclosed intended use of proceeds in OM 1. Contrary to

Arbour's disclosure, the proceeds were not used as "surplus funds placed in short term

investments", nor could it be said they were used for "[a]cquisitions of technologies and

properties in the oil and gas sector". The $10 Million Loan was not "short term" – it had a 10-

year term with no apparent ability to demand immediate or early repayment. We do not accept

Morice's apparent contention that the money loaned to Merendon was somehow related to the

acquisition of oil and gas technologies and properties because Merendon and Sorenson would

use their influence to assist Arbour in acquiring oil and gas assets or contacts (particularly

international ones). Nor do we accept that the $10 Million Loan to Merendon, tied as it was to

an option to convert to a 5% stake in TRL, could be accurately characterized at the time of OM 1

as money expended for the acquisition of oil and gas technology – the option to convert was at

that time too speculative.

[775] We find there was an omission to disclose that Arbour intended to use the proceeds raised

almost immediately and continuing throughout the currency of OM 1 to make the $10 Million

Loan to Merendon – that omission rendered misleading what was said about use of proceeds.

We also find untrue and misleading Arbour's statement that money raised was intended for

acquisitions of oil and gas technologies and properties with surplus funds placed in short-term

investments.

[776] We find that these matters were material facts required to be disclosed or disclosed

accurately. The use to which an issuer proposes to put money raised is obviously one of the

most important factors considered by reasonable investors in deciding whether to invest in the

issuer's securities. Such decisions would ultimately reasonably be expected to have a significant

effect on the market price or value attributed to the securities. As this Commission noted in Re

Dobler, 2004 ABASC 927 (at para. 220):

. . . Disclosure of the use of proceeds of an offering of securities has long been a key element of

prospectuses and other offering documents, an element taken seriously by securities regulators and

market participants. This is so irrespective of whether there is already in existence a market for

securities of the class being offered. The assumption underlying the requirement, and the

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seriousness with which it is taken, is that investors being asked to put money in a company, and

market participants observing the process, care about how the money will be spent. Different

proposed uses of proceeds may well affect investors' willingness to invest, and the prices they are

willing to pay. . . .

[777] For these reasons, we find that OM 1 contained misrepresentations about Arbour's

intended use of proceeds – precisely when, where and how investor money was to be applied –

and so breached the requirements of Form F2.

[778] Form F2 also explicitly required disclosure of the business to be carried on by the issuer

over the ensuing 12 months. OM 1 disclosed that Arbour had originally been established to

carry on oil and gas exploration and development, that Arbour had sought bankruptcy protection

in July 2003, and that the proceeds of a private placement announced in February 2004 had

allowed Arbour to settle with its creditors and to deal with current obligations. However, no

mention was made that, at the date of OM 1, Arbour's intended business activity – or a

significant one – would be the raising of capital to provide funding to Merendon, which might at

some point result in Arbour's acquiring an interest in unproven and unvalued oil sands

technology. It is clear that, at the date of OM 1, oil and gas exploration and development

activities were not Arbour's focus – although Arbour had a few oil and gas holdings or ventures,

those comprised an insignificant part of its business operations. Indeed, despite disclosure that

Arbour would use money raised to "hire competent staff on a full time basis to properly evaluate

and exploit larger opportunities", Arbour apparently maintained a very small complement of

employees seemingly without any or much expertise pertaining to the oil and gas sector, and

Arbour's new management was also apparently without such expertise.

[779] In our view, this disclosure in OM 1 gave an untrue and misleading picture of Arbour's

intended business activity over the ensuing 12 months. Because the disclosure did not provide

prospective investors with the truth about Arbour's business, prospective investors had no

understanding of what, in fact, they were investing in and where, in fact, their invested money

would be going. This disclosure did not inform investors that a significant percentage of their

money – instead of being used to acquire oil and gas technologies and properties for the purposes

of exploration and development – would be paid to Merendon to use as it saw fit (the loan was,

after all, a "funding loan"). It is evident, and we find, that disclosure of the true facts would

reasonably have had a significant effect on the market price or value of the Arbour Preferred

Shares; such disclosure was material – that is, it would have been of importance to a reasonable

investor considering whether to purchase Arbour Preferred Shares.

[780] Indeed, we find it interesting that the proposed $1 million Crazy Hill acquisition – a

relatively minor proposed monetary transaction – was among the oil and gas holdings or ventures

disclosed in OM 1. In contrast, OM 1 made no mention of any aspect of Arbour's most

significant proposed monetary transaction – the $10 Million Loan to Merendon: Arbour's very

recent commitment (evidenced by the Letter of Intent dated 5 and 9 July 2004) to loan Merendon

(a private company and the subject of past regulatory sanction) $10 million for a 10-year term, at

the time unsecured and with no formal loan agreement; Arbour's intention to start sending money

to Merendon almost immediately, and Arbour's obligation to advance the entire $10 million by

31 December 2004 in fulfilment of the Letter of Intent; and Arbour's recently-acquired option to

acquire 5% of TRL (part of Merendon's 25% interest). This was a misleading omission. We

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have no doubt that information about this very significant loan commitment and its

circumstances – involving Merendon, an entity familiar apparently to most IFFL members –

would reasonably be expected to affect significantly reasonable investors' investment decisions,

including the market price or value they would assign to the Arbour Preferred Shares. In short,

this information was material.

[781] For these reasons, we find that the untrue and misleading disclosure in OM 1 of the

material facts about Arbour's intended business activity over the ensuing 12 months were

misrepresentations in breach of Form F2 requirements.

[782] The risk factor disclosure in OM 1 was uninformative and largely irrelevant. It provided

boilerplate discussion about risk factors and industry conditions applicable to issuers carrying on

oil and gas exploration and development activities, with no consideration given to the

information that would be useful and pertinent to prospective investors considering the purchase

of Arbour Preferred Shares. The risks disclosed in OM 1 did not, in our view, adequately or

suitably warn prospective investors of the risks specific to Arbour and the way in which Arbour

planned to conduct its business. There was no discussion of the uncertainties and risks

associated with the $10 Million Loan, including: no formal loan agreement; little or no due

diligence conducted on Merendon (a mining entity, whose assets were of uncertain value and

located for the most part offshore); Arbour's intention to start sending money to Merendon

almost immediately; and Arbour's obligation to advance the entire $10 million by 31 December

2004 with no security, the risks of default, and the potential obstacles to recalling or enforcing

repayment of the $10 million. There was also no discussion of the uncertainties and risks

associated with the possible acquisition of oil sands technology. Such risks would include those

related to: stage of development; permits and licenses; performance failure; lack of contracts for

service; changes in technology; competition; product defect; potential third-party infringement;

and loss of exclusivity. These omissions were misleading.

[783] These omissions were also materially misleading. We do not doubt that prospective

investors presented with the real risks relevant to Arbour and its intended business would have

reasonably assessed the investment merits of Arbour very differently and reached markedly –

significantly – different conclusions as to the market price or value of the Arbour Preferred

Shares.

[784] For these reasons, we find that the risk factor disclosure in OM 1, which omitted to

disclose relevant material risks, misled prospective investors and was a misrepresentation in

OM 1 in breach of Form F2 requirements.

Listing Status

[785] Form F2 and, therefore, the OM Exemption, required that general information about the

issuer, including "[w]here currently listed or quoted", be disclosed in an offering memorandum.

OM 1 disclosed that Arbour common shares were listed for trading on the CNQ (at that time an

alternative exchange for micro-cap and emerging companies with less stringent listing

requirements and generally less-liquid trading of securities than on the Exchange). However,

OM 1 did not disclose that trading in Arbour common shares had been suspended by the

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Exchange as of 17 June 2004. As discussed above, the Exchange imposed the suspension

because it was reviewing Arbour's affairs and asking questions.

[786] Information about whether an issuer's securities are listed on an exchange or quoted on a

quotation and trade reporting system is important for prospective investors in that such

information concerns the liquidity of the issuer's securities and indicates whether the issuer is

subject to scrutiny and regulation by the exchange or quotation system. It is common sense, and

we find, that the market price or value of a security would reasonably be significantly affected by

information as to whether and where an issuer's securities are listed for trading and the status of

that listing – this is material information, information that reasonable investors would find

important in making investment decisions.

[787] A suspension by the Exchange can occur for a variety of reasons, such as violating rules

or failing to meet financial specifications of the Exchange. In this case, it occurred because

Arbour's circumstances appeared to warrant de-listing, but the Exchange was prepared to give

Arbour an opportunity to satisfy the Exchange's concerns and, if necessary, to reorganize

Arbour's affairs. A suspension prevents further trading of the listed securities until the

circumstances giving rise to the suspension have been settled to the satisfaction of the Exchange.

A suspension does not affect the listing of the securities; de-listing terminates the listing

agreement between the issuer and the Exchange, resulting in the permanent removal of the

securities of a listed company from the Exchange so that the securities can no longer trade on the

Exchange.

[788] At the time of OM 1, Arbour common shares were suspended from trading but were still

listed for trading on the Exchange, and Arbour was still a listed company bound by its listing

agreement with the Exchange. Thus, Arbour's disclosure of the trading status of its listed

securities in OM 1 was incomplete and misleading, giving no hint that, for some regulatory

reason, the Exchange had suspended Arbour common shares from trading on its platform. Had

information about Arbour's suspension been given, a reader of OM 1 could reasonably have

concluded that Arbour was facing a regulatory issue, such as non-compliance with Exchange

requirements.

[789] Arbour was a recently reactivated shell company embarking with new management on a

new business plan. That the Exchange had decided to suspend Arbour common shares from

trading would raise a "red flag" for many investors, and would be a fact that would – along with

any explanation given – have been useful to a reasonable investor considering whether to invest

in securities of Arbour. We think it obvious that disclosure of the Exchange's suspension of

Arbour common shares from trading was material information – reasonably likely to affect

significantly an investment decision, including the price that an investor would be willing to pay

for, or the value that an investor would attribute to, the Arbour Preferred Shares (particularly

given that the Arbour Preferred Shares were convertible to common shares on a one-for-one

basis). The omission of such disclosure to investors who were being offered Arbour Preferred

Shares under OM 1 was, we find, a misrepresentation and so breached the requirements of

Form F2.

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[790] Arbour applied to the Exchange to de-list its common shares, which request was granted

on 21 July 2004. Morice suggested that, because Arbour common shares had been de-listed

from the Exchange by the date of completion of its first distribution of the Arbour Preferred

Shares – on 20 September 2004, according to the first Distribution Report – its listing status

reference was correctly disclosed in OM 1. We disagree. It was not only Arbour's current listing

status that mattered, but what led to that – in this case, the suspension by the Exchange, Arbour's

request to de-list and the subsequent de-listing. In our view, especially given the right to convert

the Arbour Preferred Shares to common shares, the suspension by the Exchange and Arbour's

request to de-list and the reasons therefor were material information that should have been

disclosed in OM 1 to prospective investors. Further, the actual de-listing and the reasons

therefor were material information – for much the same reasons as set out above regarding the

suspension by the Exchange – that should have been disclosed to prospective investors as a

change in a revised OM 1, but were not so disclosed, thus breaching Form F2 requirements. We

so find.

[791] Consistent with these findings is the guidance provided to issuers in making materiality

determinations in National Policy 51-201 Disclosure Standards ("NP 51-201"). NP 51-201

informs issuers that "de-listing of the company's securities or their movement from one quotation

system or exchange to another" is an example of an event that may be material and therefore

publicly disclosable.

2004 AIF

[792] The OM Exemption provides for two forms of offering memoranda – one for non-

qualifying issuers and one for qualifying issuers. As noted, offering memoranda are disclosure

documents that can be used in some circumstances as a simpler alternative to the prospectus

process. As such, an offering memorandum must contain sufficient – and accurate – information

to assist prospective investors in making informed investment decisions.

[793] Non-qualifying issuers – those with a less-extensive continuous disclosure record – were

required (by MI 45-103), if relying on the OM Exemption, to use Form 45-103F1 ("Form F1").

An offering memorandum prepared in accordance with Form F1 required inclusion of much

more extensive information about the business of the issuer – structure, development, long-term

objectives and key terms of all material agreements (including any loans) – and about directors,

management, promoters and principal holders, as well as the inclusion of specified financial

statements.

[794] Section 2.2 of Form F2, and, therefore, the OM Exemption, required qualifying issuers to

incorporate the issuer's disclosure document (one such being the issuer's AIF) on which the

issuer relied to meet the definition of qualifying issuer. Form F2 stated that a qualifying issuer

not wishing to incorporate by reference the prescribed "parts of its continuous disclosure base"

must use Form F1. This was because Form F1 required much of the incorporated information to

be in the offering memorandum itself. Either way, prospective investors were thus given

information considered important to their making of informed investment decisions.

[795] Form 51-102F2 of National Instrument 51-102 Ongoing Requirements for Issuers and

Insiders explained that an AIF "is a disclosure document intended to provide material

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information about [the issuer] and its business at a point in time in the context of its historical

and possible future development" (emphasis added). Form 51-102F2 instructed an issuer

preparing its AIF to "[f]ocus [the] AIF on material information", that is, "[w]ould a reasonable

investor's decision whether or not to buy, sell or hold securities in your company likely be

influenced or changed if the information in question was omitted or misstated?"

[796] OM 1 was a Form F2 offering memorandum. Arbour purported to rely on its 2004 AIF

to meet the definition of "qualifying issuer" and, as such, entitled to use the abbreviated Form F2

available for such issuers. OM 1 stated that Arbour's 2004 AIF (dated 14 July 2004; the same

date as OM 1) was available for viewing on SEDAR by prospective investors. However, the

evidence is clear – and there was no dispute – that the 2004 AIF had not been filed on SEDAR

and thus was not available for viewing on SEDAR as of 14 July 2004 as claimed. Indeed, the

evidence was that Arbour's 2004 AIF was never filed on SEDAR.

[797] As discussed, the disclosure in OM 1 about Arbour's intended business activity was

untrue and misleading – prospective investors were given no understanding of what, in fact, they

were investing in and where, in fact, their invested money would be going. That would not have

been the case had either a Form F1 offering memorandum (completed as prescribed) been used

or Arbour's 2004 AIF (completed as prescribed) been available for viewing on SEDAR. Either

would have provided to prospective investors, among other things, the key terms of all material

agreements to which Arbour was a party – namely Arbour's very recent unsecured $10 Million

Loan to Merendon for a 10-year term, with no apparent ability to demand immediate or early

repayment, no formal loan agreement in place and the entire $10 million to be advanced by 31

December 2004. It is evident, and we find, that this information would have been important to

reasonable investors making investment decisions and would reasonably be expected to have a

significant effect on the market price or value of the Arbour Preferred Shares. Therefore, the

inability to view Arbour's 2004 AIF on SEDAR rendered OM 1 deficient in providing material

information about Arbour's business by effectively depriving investors of material information to

which they were entitled.

[798] For these reasons, Arbour's representation that the incorporated-by-reference 2004 AIF in

OM 1 was available for viewing on SEDAR was an untrue statement of a material fact, an

effective omission of material facts required to be stated and thus a misrepresentation in OM 1 in

breach of the requirements of Form F2. We so find.

Directors

[799] Item 3 of Form F2 mandated that information about directors (and senior officers) be

included in an offering memorandum. The identities of and other details about an issuer's

directors – the individuals charged with responsibility for overseeing the issuer's management

and business – are generally viewed as material information. Indeed, NP 51-201 informs issuers

that "changes to the board of directors or executive management" are examples of events that

may be material and therefore publicly disclosable.

[800] When securities are being sold pursuant to the OM Exemption, changes in circumstances

may occur that result in the facts disclosed in the offering memorandum becoming untrue or

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misleading. When that happens, the issuer cannot accept any new subscriptions from purchasers

until the issuer has amended the offering memorandum and a new certificate has been signed.

[801] OM 1 identified Arbour's directors as Morice, Strashok and Weis. Strashok was a

director of both Arbour and Merendon at the time. On 9 September 2004 Strashok officially

resigned from the Arbour board of directors and was replaced by Wigmore (a former director

and president of Merendon). Despite continuing sales of Arbour Preferred Shares under OM 1

from this date, OM 1 was never revised or updated to disclose this change in Arbour's directors.

From this date, the director disclosure in OM 1 was untrue and misleading.

[802] It is not unusual for investors considering an investment in a recently reactivated –

essentially start-up – entity, such as Arbour, with little or no existing business and operating

history, to base their investing decisions largely on the reputation, background and experience of

the entity's directors and senior officers. We think it obvious that reasonable investors in making

investment decisions would want to know the identity, reputation, background and experience of

those who have accepted responsibility for overseeing the management and affairs of the

company in which the investors are being solicited to invest their money and trust. We find this

is material information – information that would reasonably be expected to significantly affect

the market price or value of the securities being offered.

[803] For these reasons, we find that the materially untrue and misleading director disclosure

from 9 September 2004 in OM 1 was a misrepresentation in breach of Form F2 requirements, or

alternatively that Arbour's failure to revise the director disclosure in OM 1 from that date, while

continuing to sell Arbour Preferred Shares under OM 1, was in breach of Form F2 requirements.


[804] In addition to the substantive defects in OM 1 found above, Arbour failed to comply with

other, albeit less substantive, requirements of the OM Exemption in relation to OM 1.

[805] The OM Exemption required, under section 4.7 of MI 45-103, that a copy of the offering

memorandum and any update being relied on be filed with the Commission within 10 days of

each distribution under the offering memorandum. The evidence was that Arbour never filed

OM 1 with the Commission.

[806] The OM Exemption requires that Distribution Reports be filed within 10 days of

completion of a distribution. The evidence was that Distribution Reports for distributions made

under OM 1 were all filed late.

[807] The OM 1 certificate signed by Morice stated that OM 1 did not contain a

misrepresentation. For the foregoing reasons, it is clear, and we find, that Morice signed a false

certificate.

[808] We find these other deficiencies were all contrary to MI 45-103.

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(iii) Conclusions on OM 1

[809] For the reasons given, we find that OM 1 contained significant defects –

misrepresentations – and that there were other deficiencies in or associated with OM 1. OM 1

failed to comply with key requirements of Form F2 and other requirements of the

OM Exemption. In the result, while OM 1 was being used to trade and distribute Arbour

Preferred Shares to investors, it misrepresented key – material – information about Arbour, its

business and its intended use of the money raised. The very reason for which an offering

memorandum is mandated under the OM Exemption – to provide investors with all material facts

needed to enable informed investment decision-making – was thwarted.

[810] In conclusion, we found numerous breaches – misrepresentations, a false certificate, no

filing of OM 1 with the Commission, and late filing of Distribution Reports – of the

OM Exemption requirements in connection with the trades and distributions of Arbour Preferred

Shares made using OM 1. Some of the breaches in isolation might be considered formal or

technical breaches, but, when considered in their totality, OM 1 was seriously and substantively

non-compliant with the OM Exemption requirements.

(c) OM 2 (19 January 2005)

(i) Disclosure


[811] As with OM 1, OM 2's stated maximum offering was 25 million Arbour Preferred Shares

for maximum proceeds of $33 750 000. Morice explained that OM 2 was "just a continuation"

of OM 1 – apparently intended to raise, together, a total of $33 750 000, not $67 500 000.

[812] In the "[d]escription of intended use of available funds" at section 1.2 of OM 2, Arbour

disclosed that $14 685 000 of the maximum offering would be used for "[a]cquisitions of further

technologies and properties in the oil and gas sector with surplus funds placed in short term

investments until required for appropriate acquisitions". Of the balance, $10 million would be

applied to "Loan/Option Re Tarsands Technology" (the $10 Million Loan/TRL option);

$7 million to "Share Purchase: Canadian Oilsands Recovery Ltd." (COREL); $400 000 to

"working capital"; and the remaining $890 000 to three identified oil and gas holdings or

ventures.

[813] This disclosed use of proceeds did not truthfully or completely disclose how money

raised was to be used by Arbour, as specifically required by Form F2 and, thus, by the OM

Exemption.

[814] At the date of OM 2, the $10 Million Loan had already been fully advanced to Merendon;

none of the money raised under OM 2 from the sale of Arbour Preferred Shares would be used

for that purpose. Stating that proceeds were going to be used for the $10 Million Loan was

clearly untrue and misleading – an offering memorandum is a forward-looking, not historical,

disclosure document. Some of this inaccuracy may have occurred because OM 2 was essentially

a continuation of the offering under OM 1, but that was also not made clear by OM 2. For the

reasons given in connection with OM 1, we find that this matter – a use of proceeds matter – was

a material fact that was required to be disclosed or disclosed accurately. This was, therefore, a

misrepresentation.

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[815] As in OM 1, section 5.2 of OM 2 stated that gross proceeds would "be released to

[Arbour] for its use" two days after "Closing". However, Arbour began advancing loan money

to Merendon on 1 February 2005, and then continued to make frequent such advances to

Merendon, without regard for the wording of section 5.2 of OM 2 (according to the evidence, the

first closing for OM 2 was on 31 January 2005, with subsequent closings approximately every

month after that). Further, OM 2 failed to disclose Arbour's intention to pay most of the money

raised under OM 2 (after accounting for the $10 Million Loan) to Merendon under the $45

Million Loan arrangement. The use to which Arbour almost immediately put the money, and

continuing until it had advanced approximately $20 million by the date of OM 3, was in no way

consistent with Arbour's disclosed intended use of proceeds in OM 2. Contrary to Arbour's

disclosure, the proceeds were not used as "surplus funds placed in short term investments", nor

could it be said they were used for the "[a]cquisitions of further technologies and properties in

the oil and gas sector". The $45 Million Loan was not "short term", indeed it had no term at the

time of OM 2; and we note that the $45 Million Loan Agreement executed in early 2006

provided for a maturity date of 31 December 2015. We do not accept Morice's apparent

contention that the money loaned to Merendon was somehow related to the acquisition of oil and

gas technologies and properties because Merendon and Sorenson would use their influence to

assist Arbour in acquiring oil and gas assets or contacts. Nor do we accept that the $45 Million

Loan to Merendon could be accurately characterized at the time of OM 2 as money expended for

the acquisition of further oil and gas technology. It is true that the TRL transaction completed in

March 2007 extinguished the amounts loaned by Arbour to Merendon under the $45 Million

Loan. However, at the time of OM 2 and indeed in early 2006 when the $45 Million Loan

Agreement was executed, the money loaned was to be used for working capital and was not tied

to the TRL transaction.


almost immediately and continuing throughout the currency of OM 2 to make advances under

the $45 Million Loan arrangement to Merendon – that omission rendering what was said about

use of proceeds misleading. We also find Arbour's statement that money raised was intended for

acquisitions of further oil and gas technologies and properties with surplus funds placed in short-

term investments to have been untrue and misleading. For the reasons given in connection with

OM 1, we find that these use of proceeds matters were material facts that were required to be

disclosed or disclosed accurately. These were, therefore, misrepresentations.

[817] Another indication of Arbour's lack of regard in ensuring true and complete disclosure in

OM 2 was the representation that $7 million would be applied to the purchase of COREL.

Contradictory information was found in the business summary at section 2.1, which stated the

correct purchase price – $5.3 million plus 5 million Arbour common shares. This confusing

information in OM 2 – the cash portion of the COREL purchase price given as $7 million or

$5.3 million; and uncertainty as to whether Arbour common shares were involved – made it

impossible for prospective investors to ascertain the amount of money raised under OM 2 which

would be used to purchase COREL. Morice indicated that the stated $7 million included

anticipated $1.7 million "plant" construction costs; were that so, it was not stated in OM 2. In

any event, the $7 million representation was untrue, and, read in conjunction with the other

purchase price information, misleading. That said, we are not convinced that this untrue and

#4155039v1

misleading information in and of itself was material. Accordingly, it was not a

misrepresentation.

[818] In sum, we find that OM 2 contained misrepresentations about Arbour's intended use of

proceeds – precisely when, where and how investor money was to be applied – and so breached

the requirements of Form F2.

[819] As in OM 1, OM 2 disclosed, under section 2.1 "Business Summary", that Arbour had

been established in April 2001 to carry on oil and gas exploration and development. However,

no mention was made that, at the date of OM 2, Arbour's intended business activity would be the

raising of capital to provide funding to Merendon, which might at some point result in Arbour's

acquiring an interest in unproven and unvalued oil sands technology. OM 2 did disclose that in

August 2004 (this was untrue, as the Letter of Intent was executed in July), Arbour had "entered

into a loan/option agreement with an arm's length private Alberta company" to loan it

$10 million, with "the option to convert the loan into an interest in proprietary oilsands recovery

technology plus 5,000,000 common shares". However, no disclosure was made that the

borrower was Merendon. OM 2 further disclosed that in January 2005 Arbour had acquired all

of the shares of COREL (with two sets of information disclosed for the purchase price, as set out

earlier), but failed to disclose that Merendon was one of the vendors. OM 2 also failed to

disclose that Arbour had agreed to loan Merendon up to a further $45 million, with the first

advance of $900 000 to be made on 1 February 2005 on the basis of a verbal agreement or

"handshake" and with no security or formal loan agreement in place.

[820] As was the case with OM 1, this disclosure in OM 2 gave an untrue and misleading

picture of Arbour's intended business activity – the stated oil and gas exploration and

development activities were not Arbour's focus – and omitted to state with whom Arbour was or

would be conducting the majority of its business. This disclosure did not inform prospective

investors that most of the money raised would be paid to or invested in Merendon, a private

mining company whose assets were of uncertain value and located for the most part offshore – a

link to the international side as represented to IFFL members. We think it evident that disclosure

of the true facts about Arbour's intended business activity – including Merendon's identity and

involvement in the transactions disclosed, and the very significant commitment to loan up to a

further $45 million to Merendon without security or a formal loan agreement – would have been

important information to a reasonable investor considering whether to purchase Arbour Preferred

Shares. We so find. In other words, such disclosure was material – would reasonably be

expected to have a significant effect on the market price or value of the Arbour Preferred Shares.




[822] The risk factor disclosure in OM 2 contained the same uninformative and largely

irrelevant boilerplate discussion about risk factors and industry conditions applicable to issuers

carrying on oil and gas exploration and development activities, misleading prospective investors

as to the risks associated with Arbour's actual and intended business activity. Most important,

and similar to OM 1, there was no discussion of the uncertainties and risks associated with what

#4155039v1

was now a potential unsecured $55 million being loaned without a formal loan agreement or

agreements to a private company whose assets were of uncertain value and located for the most

part offshore (the formal loan agreement for the $10 Million Loan was not executed until

approximately May 2005; the formal loan agreement for the $45 Million Loan was not executed

until early 2006).

[823] For the reasons given in connection with OM 1, we find that the risk factor disclosure in

OM 2, which omitted to disclose the relevant risks, materially misled prospective investors.

Therefore, OM 2 contained a misrepresentation in breach of the requirements of Form F2.

2004 AIF

[824] As in OM 1, OM 2 stated that Arbour's 2004 AIF – as discussed above, Arbour's

qualifying disclosure document – was available for viewing on SEDAR by prospective investors.

As of the date of OM 2, the 2004 AIF still had not been filed on SEDAR and thus was not

available for viewing on SEDAR as claimed; in fact, as noted, Arbour's 2004 AIF was never

filed on SEDAR.

[825] For the reasons given in connection with OM 1, Arbour's representation that the

incorporated-by-reference 2004 AIF in OM 2 was available for viewing on SEDAR was an

untrue statement of a material fact, an effective omission of material facts required to be stated

and thus a misrepresentation in OM 2 in breach of the requirements of Form F2. We so find.

Intervening Events

[826] After the issuance of OM 2 four intervening events occurred: (i) in January 2005 Arbour

entered into a participation agreement with respect to an oil and gas property near Sedalia,

Alberta; (ii) Arbour established a US subsidiary – Arbour US; (iii) Arbour concluded

negotiations with respect to oil and gas properties located in Southeast Asia; and (iv) a

preliminary agreement was reached for Arbour to acquire the Malaysian subsidiary of an

international company which had properties in Myanmar. If these transactions were material

facts, then OM 2 was required to be updated to include these new material facts. OM 2 was not

so updated.

[827] Arbour issued news releases announcing all four events. On 23 February 2005 Arbour

announced the establishment of Arbour US – a Nevada subsidiary to which it had "agreed to

transfer all future acquired technology and oil & gas activity pertaining to the United States"

(emphasis added) – and details of the Sedalia participation agreement, including Arbour's

planned budget of approximately $175 000 for the first of up to eight wells. On 31 August 2005

Arbour announced the conclusion of negotiations "whereby Arbour will enter into not one, but

several substantial oil and gas transactions" (emphasis added) in Southeast Asia and a first right

of refusal to participate in "other international bids being made in India, Africa and the Middle

East". On 16 and 27 September 2005 Arbour announced a preliminary agreement to acquire the

Malaysian subsidiary of an international company (pending due diligence review) for

$25 million plus 60 million Arbour common shares, which could result in a change in control of

Arbour.

#4155039v1

[828] It is apparent that Arbour itself believed all four events were significant enough to be

publicized to the investing public through news releases. We conclude, therefore, that Arbour

considered this information material – that it would reasonably be expected to significantly affect

the market price or value attributed by investors to its securities.

[829] Arbour also apparently thought that information about the Sedalia participation

agreement and the establishment of Arbour US was significant enough to be publicized to the

investing public in Arbour's 2004 MD&A (for the year ended 31 December 2004; filed on

SEDAR on 18 May 2005). Arbour further believed that its preliminary agreement to acquire the

Malaysian subsidiary was a material fact because Arbour filed a material change report advising

of this material change, which it said occurred on 16 September 2005.

[830] We conclude this information was material. We think it evident that investors, in

deciding whether to buy, sell or hold securities and what price or value to place on the securities,

would want to know that the issuer was establishing a foreign subsidiary for the purpose of

vending-in apparently significant assets, or that the issuer (an oil and gas exploration

development company) would soon be participating in the drilling of a well or wells. We think it

also evident that prospective investors would want to know about agreed-upon multiple,

significant and relevant offshore transactions and a pending transaction that would result in a

change in control of the issuer.

[831] While this material information was publicly disclosed in the mentioned news releases

and Arbour filings, it was not contained in an updated OM 2 (either directly or through

incorporation by reference). From the occurrence of the first intervening event, purchasers of

Arbour Preferred Shares under OM 2 would not have had certain or all of this material

information disclosed to them when making their investment decisions. If material information

is omitted from an offering memorandum, it is no answer to suggest that investors being sold

securities in reliance on the OM Exemption could find this information in other public disclosure

of the issuer. When making investment decisions, prospective investors are entitled to rely on

the offering memorandum provided to them with its accompanying certification by the issuer's

principals that there are no misrepresentations in the offering memorandum – no untrue

statements or misleading omissions of material facts.

[832] For these reasons, we find that, beginning with the occurrence of the first intervening

event, the omission from OM 2 of this material intervening event information constituted a

misrepresentation or misrepresentations in breach of Form F2 requirements, or alternatively that

Arbour's failure to revise OM 2 from the occurrence of the first intervening event, while

continuing to sell Arbour Preferred Shares under OM 2, was in breach of Form F2 requirements.


[833] In addition to the substantive defects in OM 2 found above, Arbour continued its non-

compliance with other requirements of the OM Exemption: OM 2 was never filed with the

Commission; Distribution Reports for distributions made under OM 2 were all filed late; and,

given our findings above that OM 2 contained misrepresentations, Morice again signed a false

certificate.

#4155039v1

[834] We find these other deficiencies were all contrary to MI 45-103.







business and the use to which it intended to put the money raised. The very purpose of an

offering memorandum, as mandated under the OM Exemption – to provide investors with all

material facts needed to enable informed investment decision-making – was defeated.

[836] In conclusion, we found numerous breaches – misrepresentations, a false certificate, no

filing of OM 2 with the Commission, and late filing of Distribution Reports – of the

OM Exemption requirements in connection with the trades and distributions of Arbour Preferred

Shares made using OM 2. Some of the breaches in isolation might be considered formal or

technical breaches, but, when considered together, OM 2 was seriously and substantively non-

compliant with the OM Exemption requirements.

(d) OM 3 (26 September 2005)

(i) Disclosure


[837] OM 3's stated maximum offering was $20 250 000. In the "[d]escription of intended use

of available funds" at section 1.2 of OM 3, Arbour disclosed that $3.5 million of the maximum

offering would again be used for "[a]cquisitions of further technologies and properties in the oil

and gas sector with surplus funds placed in short term investments until required for appropriate

acquisitions". In addition, $15 million was to be applied to a "Work program for Myanmar, if

that acquisition proceeds", with $637 500 being applied to "working capital".

[838] Like OM 1 and OM 2, OM 3 did not truthfully or completely disclose how money raised

was to be used by Arbour, as specifically required by Form 45-106F3 ("Form F3", Form F2's

successor) and, thus, by the OM Exemption.

[839] As in OM 1 and OM 2, there was a provision (section 5.3 of OM 3) that gross proceeds

would "be released to [Arbour] for its use" two days after "Closing". By the time of OM 3,

Arbour knew that it would continue to make use of investor money soon after its receipt by

advancing that money to Merendon under the $45 Million Loan. Indeed, Arbour began

advancing loan money to Merendon on 29 September 2005, and continued to make such

advances to Merendon, without regard for the wording of section 5.3 of OM 3 (according to the

evidence, the first closing for OM 3 was on 30 September 2005, with most subsequent closings

every two weeks or so). As in OM 2, OM 3 failed to disclose Arbour's intention to pay most of

the money raised under OM 3 to Merendon under the $45 Million Loan arrangement.

Approximately $8.6 million – for a total of some $38.6 million – was advanced from Arbour to

Merendon between the date of OM 3 and the end of November 2005 (when Arbour was ordered

by the Commission to stop selling its securities). For the reasons given in connection with

OM 2, this almost immediate and continuing use of the money raised was in no way consistent

#4155039v1

with OM 3's disclosed intended use of proceeds – the proceeds were not used as "surplus funds

placed in short term investments", nor could it be said they were used for the "[a]cquisitions of

further technologies and properties in the oil and gas sector". We elaborate. Despite Morice's

apparent claim that Merendon and Sorenson would use their influence to assist Arbour in

acquiring oil and gas assets or contacts (particularly international ones), there was no evidence

that any of Arbour's disclosed prospects materialized at the instance of Sorenson, and Sorenson

denied offering to use, or having, "influence or clout in the international oil business".

Moreover, Arbour would not have had sufficient money at its disposal with which to take

advantage of any such oil and gas prospects because most of the money raised though the Arbour

OMs had been paid to Merendon.


almost immediately and continuing throughout the currency of OM 3 to make advances under

the $45 Million Loan arrangement to Merendon – that omission rendering what was said about

use of proceeds misleading. We also find Arbour's statement that money raised was intended for

acquisitions of further oil and gas technologies and properties with surplus funds placed in short-

term investments to have been untrue and misleading. For the reasons given in connection with

OM 1, we find that these use of proceeds matters were material facts that were required to be

disclosed or disclosed accurately. These were, therefore, misrepresentations.

[841] There was contradictory information in OM 3 relating to the use of money raised under

OM 3 for the Myanmar work program. Section 1.2 stated that $15 million from the available

money raised was to be applied to the Myanmar work program. However, section 2.1, in

summarizing the acquisition of the Malaysian subsidiary, stated that the acquisition cost was to

be $25 million plus 60 million Arbour common shares. Prospective investors reading OM 3

would not know whether $15 million or $25 million was intended to be paid, or whether the

$15 million towards the work program was in addition to the acquisition cost of $25 million

(and, if the latter, how Arbour would fund the $25 million acquisition cost). Further, Wigmore

said that, if money were sent to Myanmar, it would "flow through the Merendon account",

another fact not disclosed in OM 3. All of this was, we find, misleading. We think it obvious

that accurate and complete disclosure about Arbour's use of proceeds in relation to the Myanmar

work program – given the amounts involved and Arbour's apparent plan to flow the proceeds

through Merendon – would have been useful information to a reasonable investor considering

whether to purchase Arbour Preferred Shares. In other words, such disclosure was material –

would reasonably be expected to have a significant effect on the market price or value of the

Arbour Preferred Shares. We therefore find this a misrepresentation.

[842] In sum, we find that OM 3 contained misrepresentations about Arbour's intended use of

proceeds – precisely when, where and how investor money was to be applied – and so breached

the requirements of Form F3.

[843] As in OM 1 and OM 2, OM 3's section 2.1 "Business Summary" disclosed that Arbour

had been established in April 2001 to carry on oil and gas exploration and development, but

again made no mention that, at the date of OM 3, Arbour's intended business activity would be

the raising of capital to provide funding to Merendon, which might at some point result in

Arbour acquiring an interest in unproven and unvalued oil sands technology.

#4155039v1

[844] OM 3 contained the same disclosure as in OM 2 regarding a $10 million loan "with an

arm's length private Alberta company". This time, however, Arbour did identify Merendon as

that private company in Arbour's 2004 MD&A incorporated by reference into OM 3. OM 3 still

failed to disclose that Arbour had agreed to loan Merendon up to a further $45 million, on the

basis of a verbal agreement or "handshake" in January or February 2005 and with no security or

formal loan agreement yet in place (the $10 Million Loan was formally documented by the time

of OM 3, but not the $45 Million Loan). OM 3 also failed to disclose that approximately

$20 million under the $45 Million Loan had already been advanced to Merendon, with further

money to be advanced.

[845] Two paragraphs of section 2.1 of OM 3 discussed, in general terms, what appeared to be

significant and material international oil and gas transactions entered into or contemplated by

Arbour in Southeast Asia and Myanmar (as noted, Arbour had filed a material change report in

respect of the proposed latter acquisition). The disclosure about the "two substantial oil and gas

transactions" in Southeast Asia was not, in our view, particularly informative. The description of

a $25 million plus 60 million Arbour common shares purchase price for the Malaysian subsidiary

in Myanmar was certain to attract attention, and the disclosure of supposedly significant proven

oil and gas reserves lent a sense of legitimacy. Beyond that, little or no specific information was

provided with respect to key facts such as: the identity of the other parties to the transactions;

the specific locations of the oil and gas properties in question; the number of wells involved;

estimates of reserves; the costs involved; terms of any rights of first refusal; the purchase prices

for the Southeast Asian assets; and how the purchase price for the Malaysian subsidiary was

reached. That said, accompanying statements (for the Southeast Asian transactions concerning

"substantiating reserve estimates" before "formal contracting"; and for the Myanmar acquisition

concerning "due diligence" and "significant work" yet to be done) render it difficult to find that

this disclosure was misleading, and we do not.

[846] Nevertheless, as was the case with OM 1 and OM 2, the disclosure in OM 3 gave an

untrue and misleading picture of Arbour's intended business activity and with whom it was or

would be doing the majority of its business – the disclosure did not inform prospective investors

that most of the money raised would be paid to or invested in Merendon, a private mining

company whose assets were of uncertain value and located for the most part offshore. We think

it evident, and we find, that disclosure of the true facts about Arbour's intended business activity

– Arbour's very significant commitment to continue to advance money raised to Merendon

without security or a formal loan agreement – would have been useful to a reasonable investor

contemplating the purchase of Arbour Preferred Shares. In other words, such disclosure was

material – would reasonably be expected to have a significant effect on the market price or value

of the Arbour Preferred Shares.




[848] The risk factor disclosure in OM 3 contained, but for one pertinent addition, the same

uninformative and largely irrelevant boilerplate discussion about risk factors and industry

#4155039v1

conditions applicable to issuers carrying on oil and gas exploration and development activities,

misleading prospective investors as to the risks associated with Arbour's actual and intended

business activity. Most important, and similar to OM 1 and OM 2, there was no discussion of

the uncertainties and risks associated with what was now a potential unsecured $55 million being

loaned to a private company whose assets were of uncertain value and located for the most part

offshore and in the absence of a formal loan agreement covering most of that $55 million (the

formal loan agreement for the $10 Million Loan had been executed in approximately May 2005,

but the formal loan agreement for the $45 Million Loan was not executed until early 2006). Not

included in the risk factor disclosure was a discussion of the risks associated with acquiring and

holding oil and gas properties located outside North America.

[849] For much the same reasons given in connection with OM 1 and OM 2, we find that the

risk factor disclosure in OM 3, which omitted relevant risks, materially misled prospective

investors. Therefore, OM 3 contained a misrepresentation in breach of the requirements of

Form F3.

Directors and Officers

[850] OM 3 did not explicitly identify Hobbs as a senior officer of Arbour, despite her

appointment as Arbour's CFO in August 2005. However, Hobbs did sign the OM 3 certificate in

her capacity as CFO, so there was some disclosure in OM 3 that she held that position at that

time. That said, there was no discussion of Hobbs's background or experience. Section 3.2 of

OM 3 directed readers to Arbour's incorporated-by-reference 9 September 2005 AIF (the "2005

AIF") and to a Management Information Circular dated 5 November 2004 (not incorporated by

reference) for more information about Arbour's directors and senior officers. The former

included no mention of Hobbs; we received no evidence about the latter (and we have already

noted the importance of including mandated information in offering memoranda). As earlier

discussed in connection with OM 1, any investor making an investment is risking money and

giving trust. And it is not unusual for investors considering an investment in an essentially start-

up issuer, such as Arbour, to base their investing decisions largely on the reputation, background

and experience of the issuer's senior officers and directors. We think it evident that reasonable

investors in making investment decisions would want to know not only the identity but also the

reputation, background and experience of those who will be running the issuer's business.

Indeed, we think background information about Hobbs – who occupied the key corporate

position of Arbour's CFO – would have been particularly important information for prospective

purchasers of Arbour Preferred Shares because there were only two senior officers at Arbour –

Morice and Hobbs. We find that bankground information about Hobbs, which was omitted, was

material information – information that would reasonably be expected to have a significant effect

on the market price or value of the Arbour Preferred Shares. We, therefore, find that these

omitted material facts were a misrepresentation in breach of the requirements of Form F3.

[851] Arbour director Wigmore had been a director and the president of Merendon, an issuer

that was subject to a two-year denial of exemptions order issued by the Commission in October

2000. Despite this, Arbour's 2005 AIF, incorporated by reference into OM 3, stated in

section 8.2 that no Arbour director or officer:

. . . within the 10 years before the date of this AIF, has [been] a director or officer of any other

issuer that, while that person was acting in that capacity . . . was the subject of [an] order that

#4155039v1

denied the other issuer access to any exemptions under Canadian securities legislation, for a period

of more than 30 consecutive days . . .

[852] By its incorporation, this became an untrue statement in OM 3. The reasons given above

regarding the materiality of senior officers' and directors' reputations, background and experience

are equally applicable to their regulatory history. Common sense tells us that investors would

have considered information about a director's unfavourable history with securities regulators to

be relevant – indeed of high importance – in making a decision whether to purchase Arbour

Preferred Shares, and at what price. That information was, we find, obviously material – would

reasonably be expected to have a significant effect on the market price or value of the Arbour

Preferred Shares. This untrue material statement was, therefore, a misrepresentation in breach of

Form F3 requirements.

Other Alleged Disclosure Failures

[853] Arbour's 2004 MD&A, incorporated by reference into OM 3, contained sufficient

disclosure of Arbour's participation agreement with respect to an oil and gas property near

Sedalia, Alberta and the establishment of Arbour US. Accordingly, we find no misrepresentation

on this ground.

[854] According to Chute, a revised version of Arbour's 2004 MD&A was filed at the end of

May 2005 but not incorporated by reference into OM 3. Because that revised document was not

in evidence, we could not assess whether the revised information it contained was different in

any material way from that contained in Arbour's incorporated-by-reference 2004 MD&A.

Therefore, there is insufficient evidence to find a misrepresentation on this ground.

[855] OM 3 disclosed in section 4.1 that Arbour had 28 165 638 Arbour Preferred Shares

outstanding as at 31 August 2005. The exact number of Arbour Preferred Shares issued and

outstanding as at 31 August 2005 has not been established to our satisfaction. Accordingly, we

have insufficient evidence from which to conclude that this disclosure in OM 3 was untrue or

that the discrepancy claimed was, in and of itself, material, thus amounting to a

misrepresentation.


[856] In addition to the substantive defects in OM 3 found above, Arbour continued its non-

compliance with other requirements of the OM Exemption: all but one of the Distribution

Reports for distributions made under OM 3 were filed late; and, given our findings above that

OM 3 contained misrepresentations, Morice again signed a false certificate.

[857] We find these other deficiencies were all contrary to NI 45-106.







business and its intended use of the money raised. The very reason for mandating an offering

#4155039v1

memorandum under the OM Exemption – to provide investors with all material facts needed to

enable informed investment decision-making – was frustrated.

[859] In conclusion, we found numerous breaches – misrepresentations, a false certificate and

late filing of Distribution Reports – of the OM Exemption requirements in connection with the

trades and distributions of Arbour Preferred Shares made using OM 3. Some of the breaches in

isolation might be considered formal or technical breaches, but, when considered in their totality,

OM 3 was seriously and substantively non-compliant with the OM Exemption requirements.

5. OM Exemption Not Available

[860] Although it is expected that all trades and distributions of securities made in reliance on a

registration or prospectus exemption will comply strictly with the requirements of the exemption,

there may be circumstances in which deficiencies and non-compliance attract liability but may

not preclude reliance on the OM Exemption. However, that is not the case here.

[861] For the reasons given, we found that all three Arbour OMs contained significant defects –

misrepresentations – and that there were other deficiencies in or associated with all three Arbour

OMs. None of the Arbour OMs complied with key disclosure requirements of the

OM Exemption; we agree with Staff that "a culture of falsehoods . . . permeate[d]" the Arbour

OMs. The Arbour OMs' muddled disclosure not only badly informed prospective investors but

also gave them untruths and misled them. In the result, the Arbour OMs, while being used to

trade and distribute Arbour Preferred Shares to investors, misrepresented material facts about

Arbour, its business and the use to which it intended to put the money raised. Among the

misrepresentations found, the most critical was the lack of disclosure that Arbour's intended use

of proceeds, and its intended business activity, was to provide Merendon – a private mining

company whose assets were of uncertain value and located for the most part offshore – with

some $38.6 million (84%) of the approximately $45.5 million raised, without typical

commercially reasonable terms and conditions (and Arbour paid another $5.6 million to purchase

COREL, of which Merendon was the majority shareholder). The significant defects and other

deficiencies found defeated the very purpose of the Arbour OMs – to provide prospective Arbour

investors with accurate, complete and accessible disclosure of material facts on which to make

informed investment decisions. We consider the Commission's words in Capital Alternatives (at

para. 281) apposite:

The offering memorandum is the core investor protection mechanism on which the OM

Exemption is built; we stated above that it was the foundation of the OM Exemption. We consider

that the defects in the OMs were so serious and pervasive that they fatally undermined that

foundation in this case.

[862] As a result of the serious and pervasive failings of OM 1, OM 2 and OM 3, we find that

the OM Exemption to the registration and prospectus requirements was not available to qualify

the trades and distributions of Arbour Preferred Shares purporting to rely on that exemption.

[863] As we found above, there was no registration and prospectus here. The OM Exemption

was not available (and no other registration and prospectus exemptions were shown to have been

available). Accordingly, we find that the trades and distributions of the Arbour Preferred Shares

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made by Arbour, Morice, Brost and IFFL contravened sections 75(1)(a) and 110(1) of the Act

and were, therefore, illegal.

6. Sections 92(3)(c) and 92(4.1) of the Act Contravened?

(a) Statements of Arbour and Morice

[864] As discussed above, both sections 92(3)(c) and 92(4.1) of the Act prohibit a person or

company from making materially untrue or misleading statements. Section 92(3)(c) was in force

until 7 June 2005, with section 92(4.1) in force from 8 June 2005. OM 1 was dated 14 July

2004; OM 2 was dated 19 January 2005; and OM 3 was dated 26 September 2005. Therefore,

section 92(3)(c) would have applied to distributions under OM 1 and some of the distributions

under OM 2, with section 92(4.1) applying to the remaining distributions under OM 2 and to the

distributions under OM 3.

[865] The issue before us in this context is whether Arbour or Morice (or both) contravened

section 92(3)(c) of the Act by making (before the amendment of section 92) each of the

materially untrue or misleading statements (or materially untrue and misleading statements) in

OM 1 and OM 2 found above, and contravened section 92(4.1) by making (after the amendment

of section 92) each of the materially untrue or misleading statements (or materially untrue and

misleading statements) in OM 2 and OM 3 found above. Staff's allegations here largely involve

the same facts as their allegations relating to the defects in the Arbour OMs.

[866] Arbour issued the Arbour OMs; accordingly, the statements therein, including the

statements at issue here, were made by Arbour. Morice, as Arbour's president and CEO,

personally signed and certified as being free of misrepresentations each of the Arbour OMs.

Thus, the statements in the Arbour OMs, including the statements at issue here, were also made

by Morice.

(b) Intention to Effect Trades in Securities

[867] Section 92(3)(c) of the Act applied only to untrue or misleading statements made with the

intention of effecting trades in securities. In this case, because Arbour was purportedly relying

on the OM Exemption to trade and distribute the Arbour Preferred Shares, the content of OM 1

and OM 2 was obviously intended to effect trades in the Arbour Preferred Shares.

[868] Morice suggested that investors did not rely on the Arbour OMs when they purchased

Arbour Preferred Shares. Rather, "[t]hey were all attempting to get their money 'off shore' into

gold backed, managed accounts that would give them five or six times the rate of return they

could expect on a conservative investment in Canada", and "Arbour investors wanted and

expected their money to be moved offshore to entities backed by [Merendon] and [Sorenson's]

gold".

[869] We disagree. Investor motive or understanding is not relevant to the issue of whether

Arbour met its regulatory obligations under Alberta securities laws. Alberta securities laws

regulate trading in securities. One principal protective tool for achieving this is the

establishment of disclosure requirements, with the objective that investors will be provided with

complete and accurate information to assist them in making informed investment decisions.

Whatever motives or understandings prospective investors had when they decided to purchase

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Arbour Preferred Shares did not deprive them of fundamental protections to which they were

entitled under Alberta securities laws. Indeed, had proper disclosure been made in the Arbour

OMs, many of the Arbour investors might have refrained from purchasing Arbour Preferred

Shares and avoided financial losses – devastating losses in some cases (according to investor

witness testimony).

[870] We accordingly find that the materially untrue or misleading statements (or materially

untrue and misleading statements) in OM 1 and OM 2 found above were made with the intention

of effecting trades in securities.

(c) Knowledge Concerning the Misstatements Found

[871] Both sections 92(3)(c) and 92(4.1) of the Act require an element of knowledge – that the

maker of the statements knew or reasonably ought to have known that the statements: were

untrue or misleading; and were material, namely would reasonably be expected to have a

significant effect on the market price or value of the securities.

[872] We consider whether Arbour and Morice had the requisite knowledge concerning the

materially untrue or misleading statements (or materially untrue and misleading statements) in

the Arbour OMs found above. Arbour as a corporation carried on its activities through

individuals. Morice was the Arbour principal primarily responsible for the disclosure in the

Arbour OMs; therefore, what Morice knew or reasonably ought to have known can equally be

attributed to Arbour.


[873] There is no question that Arbour and Morice knew Merendon was the intended recipient

of what eventually amounted to some $38.6 million of the approximately $45.5 million raised

from the sale of the Arbour Preferred Shares. Cash advances to Merendon authorized by Morice

commenced within two weeks of the date of OM 1 and continued throughout the currency of

OM 2 and OM 3. There is no question that Arbour and Morice knew that Arbour's business over

the respective 12-month periods from the dates of the Arbour OMs was to raise capital to provide

funding by way of loans to Merendon. That was the plan; that was what happened. Arbour and

Morice clearly knew that Arbour's business focus was not oil and gas exploration and

development activities.

[874] Turning to the claimed purported "short term" nature of, first, the $10 Million Loan and

second, the $45 Million Loan, this was not a reasonable position and was not supported by the

evidence.

[875] Negotiations for the $10 Million Loan commenced in early May 2004. At the date of

OM 1 (14 July 2004), Arbour (per Morice) and Merendon (per Sorenson) had entered into the

Letter of Intent dated 5 and 9 July 2004 whereby Arbour proposed to lend Merendon $10 million

for a term of 10 years. There was no suggestion in either the Letter of Intent or the subsequently-

papered 10 July 2004 $10 Million Loan Agreement (executed by the same individuals in

approximately May 2005) that this loan to Merendon was to be anything other than a 10-year

loan, with no apparent ability to demand immediate or early repayment – in other words, it was a

long-term loan or investment. There was also no security or other enforceable means in place to

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ensure that this money Arbour was sending offshore to Merendon could be recalled or recovered.

Morice, involved as he was with the $10 Million Loan transaction, knew these things.

[876] Similarly, by the date of OM 2 (19 January 2005) Arbour (per Morice) and Merendon

(per Sorenson) had entered into a verbal agreement whereby Arbour proposed to lend Merendon

an additional $45 million with no fixed term. The eventually-papered 1 January 2005

$45 Million Loan Agreement executed by Arbour (per Morice) and Merendon (per Sorenson) in

early 2006 provided for a maturity date of 31 December 2015, with no apparent ability to

demand immediate or early repayment. This, too, was a long-term loan or investment. Once

papered, the $45 Million Loan was only partially secured; until then, it had been unsecured.

[877] Morice himself admitted that Arbour had an opportunity to pursue a certain international

transaction, but, because the money was offshore with Merendon, Arbour found itself in a "spot"

– it was unable to recoup the money it had advanced to Merendon and could not proceed.

[878] Further, Merendon and Sorenson did not view the $10 Million Loan or the $45 Million

Loan as a short-term loan or investment. The money, as provided for in the associated loan

agreements, was to be used by Merendon for working capital to fund its operations, not to be

held by it as short-term loans or investments. Consistent with this position, the Merendon

Financial Statements recorded all money received under the $10 Million Loan and the

$45 Million Loan as long-term debt.

[879] We find that Arbour and Morice knew or reasonably ought to have known that the

$10 Million Loan and the $45 Million Loan were not short-term loans or investments.

[880] We cannot fathom how Morice could have certified the veracity of the use of proceeds,

business summary and associated risks disclosure in the Arbour OMs when he knew full well

that the intent was for Arbour to advance most of the money raised from the sale of the Arbour

Preferred Shares to Merendon without any apparent ability to demand immediate or early

repayment – and without the benefit of security or, initially, formal loan agreements (elements

present in most other arm's-length commercial transactions). It is clear, and we find, that Morice

and, through him, Arbour knew that this disclosure was untrue and misleading. Further, Arbour

and Morice had no reasonable basis for concluding that Arbour's actual intended use of proceeds,

true business and the attendant risks were not disclosable material facts. These facts were

material – would reasonably have been expected to have a significant effect on the market price

or value of the Arbour Preferred Shares – and Arbour and Morice knew or reasonably ought to

have known this. We so find.

Listing Status

[881] Arbour and Morice clearly knew Arbour's listing status history. There was evidence of

Morice being involved in making the de-listing application to the Exchange.

[882] Arbour and Morice also knew or reasonably ought to have known that the misleading

information about Arbour's listing status would reasonably be expected to have a significant

effect on the market price or value of Arbour Preferred Shares.

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2004 AIF

[883] Arbour and Morice knew or reasonably ought to have known that Arbour's 2004 AIF,

disclosed in OM 1 and OM 2 as being available for viewing on SEDAR, was not filed on

SEDAR at the time. We reject Morice's contention that Arbour's legal counsel was responsible

for filing the 2004 AIF; that responsibility was ultimately Morice's. Morice, who was certifying

the information in the Arbour OMs, should have checked to ensure that all documents

incorporated by reference were in fact filed on SEDAR. This is particularly true of the critical

2004 AIF, on which document Arbour purported to rely to meet the definition of "qualifying

issuer" under MI 45-103, entitling Arbour to use the less detailed disclosure Form F2. As noted

by this Commission in Maitland Capital (at para. 138): "[S]enior officers and directors of

issuers are accountable for acts committed under their watch. Attempting to shirk this

responsibility is conduct inconsistent with the duties of officers and directors."

[884] Arbour and Morice also knew or reasonably ought to have known that the untrue and

effectively misleading information about Arbour's 2004 AIF being available for viewing on

SEDAR would reasonably be expected to have a significant effect on the market price or value

of Arbour Preferred Shares.

Directors and Officers

[885] Arbour and Morice (who was a director and the president and CEO of Arbour) knew or

reasonably ought to have known that: Strashok had resigned as an Arbour director and had been

replaced by Wigmore during the currency of OM 1; and Hobbs was Arbour's CFO when OM 3

was being used to raise money.

[886] Wigmore clearly knew of the denial-of-exemptions order issued by the Commission

against Merendon, as he was its president and a director at the time. Morice acknowledged in

the Morice Interview that he had not asked Wigmore whether he ever had any issues with any

securities regulatory authority. We accept that Morice – and, therefore, Arbour – may not have

known of Wigmore's regulatory history with the Commission. However, Morice should have

made the necessary inquiries; he – and, therefore, Arbour – reasonably ought to have known.

OM 3 incorporated by reference Arbour's 2005 AIF, which specifically stated that no officer or

director of Arbour had been a director or officer of any other issuer that had been the subject of

an exemptions ban within 10 years of the date of the 2005 AIF. It was incumbent on Morice, as

Arbour's senior executive officer, to ask this question of each of Arbour's officers and directors

before permitting Arbour to make such a statement in its 2005 AIF. That Morice neglected to do

so is no excuse.

[887] Arbour and Morice also knew or reasonably ought to have known that such untrue and

misleading information about Arbour's directors and officers would reasonably be expected to

have a significant effect on the market price or value of Arbour Preferred Shares.

Intervening Events

[888] Arbour, as a party to the Sedalia participation agreement and the offshore negotiations

and agreements, and as the creator of Arbour US, clearly knew of these transactions. As

Arbour's most senior officer, Morice was involved in, and thus would have been keenly aware

of, these transactions.

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[889] Arbour and Morice also knew or reasonably ought to have known that misleading

information about these transactions would reasonably be expected to have a significant effect on

the market price or value of Arbour Preferred Shares.

Conclusion

[890] We have found that Arbour and Morice made the materially untrue or misleading

statements (or materially untrue and misleading statements) in the Arbour OMs found above.

We also have found, for purposes of section 92(3)(c) of the Act, that the materially untrue or

misleading statements (or materially untrue and misleading statements) in OM 1 and OM 2

found above were made with the intention of effecting trades in securities. We further find that,

contrary to sections 92(3)(c) and 92(4.1), Arbour and Morice made each of the materially untrue

or misleading statements (or materially untrue and misleading statements) in the Arbour OMs

found above when Arbour and Morice respectively knew or reasonably ought to have known

such statements: (i) were untrue or misleading (or both); and (ii) would reasonably be expected

to have a significant effect on the market price or value of Arbour Preferred Shares.

(d) Business Judgment Rule

[891] In Kerr v. Danier Leather Inc., 2007 SCC 44, the Supreme Court of Canada considered

the application of the business judgment rule to decisions made regarding disclosure under

securities laws. In finding that the rule did not apply, the court stated (at para. 54-55):

. . . disclosure is a matter of legal obligation. The Business Judgment Rule is a concept well-

developed in the context of business decisions but should not be used to qualify or undermine the

duty of disclosure. . . .

. . . the disclosure requirements under the Act are not to be subordinated to the exercise of

business judgment. . . . It is for the legislature and the courts, not business management, to set the

legal disclosure requirements. [Emphasis in original.]

[892] We question, on the evidence before us, whether Arbour directors or officers –

specifically Morice – applied an appropriate measure of prudence and diligence in assessing

materiality or in deciding related disclosure issues. In any event, it is for the legislature and

adjudicators, not a company's directors or officers, to set legal disclosure requirements, and the

materiality assessments and disclosure decisions of Arbour directors and officers cannot override

the dictates of Alberta securities laws. Thus, the business judgment rule does not excuse any

deficiencies in the Arbour OMs.

(e) Reliance on Legal Advice Does Not Diminish Responsibility

[893] Morice contended that he should not be found liable for any misstatements in the Arbour

OMs because he relied on legal advice given to him by Skeith to ensure that the Arbour OMs

complied with the OM Exemption requirements. Arbour made no submissions, but we will

assume that if this legal advice protection is available to Morice then it may also be available to

Arbour.

[894] As discussed above, it is well established that a person trading or distributing securities is

responsible for determining whether an exemption is available; it is inappropriate for the person

to assume an exemption's availability. Given these principles and the facts we have found here,

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we are disinclined to find any circumstances that would somehow diminish Arbour's and

Morice's responsibility for their contraventions of the Act. Such circumstances, if applicable,

would arguably more properly be considered as mitigating factors when a hearing panel is

deciding what, if any, sanctions are required in cases of proven contraventions of Alberta

securities laws (Re Jennix, 2009 ABASC 368 at para. 72).

[895] It is also a well-established principle that officers and directors are responsible for

ensuring that their issuer complies with securities laws, including disclosure obligations. Morice

was Arbour's most senior officer, charged with the responsibility of preparing the Arbour OMs

for Arbour's use in raising money from the public using the OM Exemption. As such, Morice

had a duty to ensure that the investing public was provided with the proper disclosure. As the

Commission stated in Capital Alternatives (at para. 288):

Officers and directors need not be familiar with every detail of every law that governs the affairs

of their company, but that does not relieve them of compliance responsibilities. They must act

reasonably to inform themselves or satisfy themselves that those on whose advice they rely are

informed. They must act diligently with a view to ensuring compliance. Above all, they must

conduct themselves in good faith in a manner consistent with the spirit of applicable laws. In this

case, as discussed, what transpired was contrary to the letter and the spirit of Alberta securities

laws.

[896] Skeith, a securities lawyer for more than 20 years, assisted Morice with the preparation of

each of the Arbour OMs. Legal counsel's role is to provide advice; however, the final decision

as to what disclosure will be made in offering documents such as offering memoranda remains

with the issuer – and its officers and directors. Skeith, in agreeing with the proposition that

offering memoranda disclosure is ultimately the issuer's responsibility, answered the panel's

questions as follows:

Q And you gave [Arbour] advice that they should disclose this agreement or not disclose

this agreement?

A Well, I set out the parameters as, you know, basically, here's a -- the definition of

materiality, and here's risks and whatever. You know, what's [Arbour's] plan? What's

[Arbour's] assessment? And this is where we ended up.

Q And that determination was made by the client?

A Yes . . . . I give advice, I can't make the final decision.

Q Right. And while we're on the topic, is it fair to say that the disclosure in all of these

[offering memoranda] is the responsibility of the issuer?

A Yes.

[897] Even if we were to accept that Morice's reliance on legal advice could be a complete

answer to a failure to comply with Alberta securities law requirements, there are certain criteria

that a respondent must satisfy in order to avail oneself of such a defence (Re Mega-C Power

Corp. (2010), 22 OSCB 8290 at para. 261; and Jennix at paras. 99-102):

the lawyer had sufficient knowledge of the facts on which to base the advice;

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the lawyer was qualified to give the advice;

considering all the circumstances the advice was credible; and

the respondent made sufficient inquiries, properly applied the advice and

reasonably relied on the advice.

[898] In our view, Morice has failed to satisfy all of these criteria.

[899] First, there was little evidence of the discussions that took place between Skeith and

Morice as they prepared the Arbour OMs, what information was provided to Skeith and what

specific legal advice was sought from Skeith. Indeed, we received no evidence of discussions

that took place between Skeith and Morice concerning certain alleged disclosure failings.

[900] Skeith produced his Arbour file during his testimony, but it contained virtually nothing

showing what information he had been given by Arbour and Morice, or what specific legal

advice Skeith provided and on what issues. For example, Skeith's file before us contained no

documentation recording instructions received or advice given. Further, there were no draft

Arbour OMs with mark-ups included.

[901] Moreover, Skeith could not recall what advice he gave Arbour and Morice in certain

instances. For example, Morice suggested that Arbour's failure to disclose Merendon's name in

OM 2 was based on legal advice that there was no legal requirement to do so – Morice said that

Merendon was a "very private company" which "wouldn't want us using their name in an

[offering memorandum] if it wasn't required". Skeith, however, could not recall the specific

advice he gave regarding Arbour's decision not to name Merendon in OM 2 but instead refer to it

as a "private Alberta company". Skeith also could not recall whether he explained the

implications of the Arbour OM certificates to the Arbour officers and directors who signed them.

[902] Nor did we have the benefit of Morice's testimony as to what legal advice he and Arbour

received from Skeith, what information he and Arbour provided to Skeith, or the extent of the

materiality discussions.

[903] The evidence also does not establish that Skeith was apprised of and understood all the

facts when he gave the legal advice he did to Arbour and Morice.

[904] Skeith testified that he drafts the "framework" of an offering memorandum for a client,

but relies on the client to provide him with "the information that is relevant to their specific case,

and we work together to ensure that the form requirements are met". Skeith also confirmed that,

as legal counsel, he explains to a client what a material fact is, but then relies on the client to

provide him with all the material facts that are ultimately disclosed in an offering memorandum.

In cross-examination, Skeith explained his legal counsel role as follows:

Q But we'll agree, can we not, sir, that the best you can do as counsel is provide the

framework for the document. You're not responsible for the intimate details of the

business, the risk and the use to be made of funds; is that correct?

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A Correct.

Q You need that information from the issuer from the issuer's management.

A Yes.

Q So your recommendations with respect to what goes into an [offering memorandum] are

only as good as the information you get from the issuer.

A Correct.

Q I'm talking about the detailed information, not the generalities.

A Correct.

Q And in this case with respect to OM 1, OM 2 and OM 3 -- and those are the three offering

memoranda that [counsel for Morice] took you to -- you were getting that information

from, among others, [Morice].

A Among others, yes, yeah.

[905] Skeith stated that his practice with offering memoranda is to ask clients at each closing

whether the particular offering memorandum is "still current". If not, an amended or new

offering memorandum would have to be prepared.

[906] Skeith said that he based his advice on what he was told by Morice. Skeith confirmed

that, while perhaps not "misled" by Morice, he was "not informed" about certain matters.

[907] For example, Skeith was not told and was not aware that most of the money raised from

the trades and distributions of the Arbour Preferred Shares was sent to Merendon on or shortly

after receipt. Skeith's understanding, from what Morice told him, was that, despite the 10-year

term specified in the Letter of Intent, the money would go down to Merendon on "a short-term

loan facility and -- in the normal course of business, and it was simply money going down,

money coming back" and "would be called back when [Arbour] found an oil and gas property to

buy". Skeith also understood, based on what Morice told him, that the parties were not "really

going to enact the [Letter of Intent]", presumably suggestive of a rationale for believing that

there was no need to disclose the 10-year $10 Million Loan to Merendon and of a misinformed

basis for Morice's claimed receipt of legal advice that the $10 Million Loan (or it and the $45

Million Loan) would be effectively disclosed under the description "short term investments" in

the Arbour OMs. Skeith further stated that he did not ask Morice what the security was for the

$10 Million Loan. When asked if he discussed with Morice the commercial feasibility or

appropriateness of this arrangement, Skeith testified that "my client didn't seem to have any

concerns, so I didn't". Skeith was also not aware that SGD had a general security agreement

against Merendon's assets that pre-dated the loan advances Arbour made to Merendon.

[908] Skeith agreed that, "with hindsight, I'd probably put it in now", with "it" referring to

Arbour investor money "being lent, on a short-term basis, to a mining entity with offshore

interests, with no security, no loan agreement and no valuation". Skeith himself acknowledged

that, had he been in possession of all the relevant information regarding the arrangement between

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Arbour and Merendon, he would have identified Merendon and included more disclosure in the

Arbour OMs about the $10 Million Loan and the $45 Million Loan. Skeith's testimony on this

point was:

Q And did you not think it would be of interest to an investor to know that there was this

loan that had been agreed to and was an unsecured loan?

A Yes, if -- my information was that we were going to send the money down, and it was

going to be a loan, yes, then obviously that's a material fact that should have been

disclosed, yes.

[909] In conclusion, we find that Skeith clearly did not have sufficient knowledge of all the

facts on which to base his legal advice to Arbour and Morice as to what material facts were

required to be included in the Arbour OMs. That said, we are disappointed that a senior

experienced securities lawyer such as Skeith did not question, or express concern about, the

apparent disconnect between the disclosure made in the Arbour OMs and the other documents he

saw at the time or later came to know about. We find that Arbour and Morice did not give

Skeith sufficient information about Arbour's plans and transactions. It was the responsibility of

Arbour and Morice to provide all the facts – in failing to do so, they cannot now claim to have

reasonably relied on any ill-informed legal advice so generated. In short, legal advice generated

in such circumstances is suspect – it is not advice on which a respondent can claim reasonable

reliance in defence of allegations.

[910] In the circumstances, the legal advice received and applied by Arbour and Morice does

not in any way excuse – nor lessen their responsibility for – materially untrue or misleading

statements (or materially untrue and misleading statements) in the Arbour OMs found above.

C. Unregistered Advising

1. The Allegation

[911] Staff alleged that Brost and IFFL breached section 75(1)(b) of the Act by acting as

advisors without being registered to advise in securities. Staff's allegation relating to advising is

"with respect to the purchase by [IFFL] members of a very select group of securities, one of

which was Arbour". As particulars, Staff stated that IFFL represented itself as an "educational

institute" and solicited members from meetings and seminars it held "for the stated purpose of

promoting international investment".

2. The Law

[912] During the period relevant to the allegation of unregistered advising, section 75(1)(b)(i)

of the Act prohibited a person or company from acting as an advisor if not registered with the

Executive Director to do so, unless an exemption applied.

[913] Section 1(a) of the Act defined "advisor" (now "adviser") as "a person or company

engaging in or holding out the person or company as engaging in the business of advising others

with respect to investing in or the buying or selling of securities or exchange contracts".

[914] In Kustom Design, this Commission discussed the nature of activity that would constitute

"advising" (at paras. 216-19):

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In Re Costello [(2003), 26 OSCB 1617], the OSC ruled (at para. 25): "The trigger for registration

as an adviser is not doing one or more acts that constitute the giving of advice, but engaging in the

business of advising." In determining whether a person or company engaged in the business of

advising, advising need not be the only business activity that the person or company is conducting.

Typically, though, isolated pockets of providing advice on specific investments or securities will

not evidence that advice had been given for a business purpose. Further, it is unnecessary that any

person followed or acted on the advice; the focus is on the action of giving the advice.

In Re Donas, 1995 LNBCSC 18, the BCSC described the nature of communicating advice:

. . . The concise Oxford Dictionary of Current English (1990 ed.) defines

"advice" as "words given or offered as an opinion or recommendation about

future action or behaviour . . .".

. . .

As indicated by the definition of "advice", the nature of the information given or

offered by a person is the key factor in determining whether that person is

advising with respect to investment in or the purchase or sale of securities. A

person who does nothing more than provide factual information about an issuer

and its business activities is not advising in securities. A person who

recommends an investment in an issuer or the purchase or sale of an issuer[']s

securities, or who distributes or offers an opinion on the investment merits of an

issuer or an issuer[']s securities, is advising in securities. . . .

This Commission recently commented on activity indicative of advising in Re Global Trading

Center LLC, 2009 ABASC 614 (at paras. 32-33):

The determination of whether a person is "advising", for purposes of the Act,

involves two considerations, described as follows by D. Johnston and

K.D. Rockwell in Canadian Securities Regulation, 4th ed. (Markham:

LexisNexis, 2006) at 359:

First, did the purported adviser express an opinion or make a

recommendation? Merely reciting facts does not make one an

adviser; recommending an investment or opining on the

investment merits of an issuer or securities is advising.

Second, did the purported adviser offer the recommendation in

a way which reflected a business purpose? [Emphasis in

original.]

As to whether the person is in "the business of advising", this in our view

connotes elements both of intended profit and a degree of organization,

repetition or regularity – neither a gratuitous provision of advice nor a merely

isolated act or incident would generally suffice to evidence a business.

Thus, the mere providing of factual information about a proposed investment does not constitute

advising. Rather, advising involves a business of providing subjective views, opinions and

recommendations on the merit or value of a specific investment or security to a person or

company.

[915] Therefore, an allegation of unregistered advising can be sustained only if the evidence is

sufficient to prove that a person or company – in a manner indicating a business purpose –

offered an opinion on the merits of investing in the issuer or the securities being offered, or

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recommended the purchase or sale of securities of a particular issuer. Advising entails subjective

observations on the value of a particular investment in securities. Providing facts about an

issuer, its business or its securities is not advising within the meaning of the Act. Nor is

providing an opinion or recommendation regarding securities without commercial – business –

hallmarks such as organization, repetition, regularity and compensation.

[916] Accordingly, to sustain the allegation of unregistered advising, we must find that Brost

and IFFL offered opinions on the investment merits of a particular issuer or security or

recommended an investment in a particular issuer or security. We also must find that any such

opinions or recommendations (or both) were given for a business purpose. Finally, in the event

we find that Brost and IFFL engaged in advising, we must then conclude that none of the

statutory exemptions were available to either of them when they gave the investment advice to

investors.


(a) Staff

[917] Staff submitted that IFFL, although purporting "to be merely an educational institute",

acted through its structurists to promote and provide "advice with respect to the sale of a select

group of securities to its members, including the [Arbour Preferred Shares]". Staff pointed to the

testimony of the investor witnesses, all of whom testified regarding investments in securities

promoted by IFFL. Staff also highlighted that IFFL structurists assisted investors with various

aspects of their investments, including paperwork, and gave them advice about financing their

investments through RRSPs or home equity lines of credit.

[918] Staff contended that Brost and IFFL attempted to give the appearance that they were not

offering investment advice about securities despite, according to Staff, evidence showing the

focus of Brost's and IFFL's activities as the giving of investment advice about particular

securities. Staff also pointed to certain evidence indicating that IFFL structurists received

financial benefits – commissions – for giving investment advice on certain securities.

[919] Staff submitted that Brost was personally involved in IFFL's activities and had, in fact,

created IFFL "for the purpose of promoting and selling to IFFL members securities of companies

controlled by him or his associates".

(b) Brost and IFFL

[920] As noted, Brost and IFFL did not appear at the Merits Hearing, nor did they make written

or oral submissions on any of Staff's allegations against them.

4. Analysis

(a) Opinions or Recommendations

[921] It became apparent from the evidence that Brost and IFFL made efforts to avoid

appearing as though Brost or IFFL structurists were offering investment advice or

recommendations on particular issuers or securities to IFFL members and potential members.

IFFL's official mandate was to educate investors – it provided, in its words, "an exclusive

education service in which [IFFL] educate[s] individuals and provide[s] effective education

options on an array of financial matters" (emphasis in original). However, in reality, IFFL and

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Brost were recommending the purchase of securities in Brost-connected entities, while

encouraging and assisting investors to make such investments. As we conclude below, the

substance of the activities carried on by Brost and IFFL structurists was more than "educational";

IFFL's primary business activity was to promote and sell to IFFL members securities of Brost-

connected entities.

[922] The evidence demonstrates that IFFL, through its structurists and under the control and

direction of Brost, was very successful in convincing investors that enrolment as an IFFL

member would entitle them to participate in highly lucrative investment opportunities and to

minimize or eliminate taxation payments. Investors believed that by joining IFFL and investing

in IFFL-touted securities they would be participating in investments and tax breaks otherwise

only available to a small group of wealthy people and entities (notably, banks and the

government).

[923] Under the IFFL process, investors were invited to attend one or more initial contact

meetings at which Brost or an IFFL structurist would discuss general financial concepts and

provide a basic description of the IFFL investment program – supposedly using non-standard

methods of investing to achieve exceptionally high rates of return only from investments

recommended by Brost or IFFL. The rates of return were considerably more than those available

on investments offered through more conservative investment channels. These initial meetings

emphasized means to achieve "financial freedom", including how IFFL could educate its

members about strategies used by banks to earn large profits by holding their money offshore

and sheltering returns from tax. Because non-IFFL members were not given the specifics about

particular investments, the most significant factor influencing investors' desire to join IFFL was

this "carrot" of access to the investments purportedly offering extraordinarily high and tax-

sheltered returns through the "international side". We conclude that this was a deliberate tactic

by Brost and IFFL to intrigue and entice investors to invest in securities recommended by Brost

and IFFL.

[924] After becoming an IFFL member, the member would receive an IFFL List of Companies

to consider as possible investments. Although the companies on IFFL Lists of Companies

changed over time, there was a pattern. Each IFFL List of Companies would include several

well-known blue chip companies and typically one specific entity (such as Arbour, Strategic,

Quattro, Rapid Express and Merendon Nevada) previously unknown to the prospective investors;

the latter entity was a Brost-connected entity and was the only one for which the highly-touted

and, by then, highly-desired "international side" was available.

[925] Therefore, we conclude that the IFFL Lists of Companies were a pretence. There was

never any intention that IFFL members would invest in the identified well-known companies.

IFFL members were steered to the Brost-connected entities, which were recommended by Brost

and IFFL. Brost authored the IFFL Lists of Companies. IFFL structurists followed Brost's

recommendations in advising potential investors that the Brost-connected entity on each IFFL

List of Companies was the only investment capable of generating the touted extraordinary

returns and minimizing the taxation payable on their gains. IFFL structurists only earned

commissions for sales of securities of the Brost-connected entities.

#4155039v1

[926] Our view is strengthened by the fact that Arbour did not promote or advertise its

securities in any way, yet had so much money coming in from investors that even its president,

Morice, was surprised. There were no reasons for Arbour's popularity other than the IFFL

presentations and letters. We find this was not merely a coincidence – investors were obviously

directed to the Arbour Preferred Shares, which were recommended to them.

[927] The IFFL Lists of Companies authored by Brost provided only the name and contact

information of potential investments. All other discussions between structurists and IFFL

members focused on providing information about the listed Brost-connected entities. It is,

therefore, not surprising that we did not hear from any IFFL members who invested in securities

of any of the identified well-known companies, such as Canadian Tire or Berkshire Hathaway.

We did hear that almost all purchasers of Arbour Preferred Shares were IFFL members or were

family or friends of members. We conclude that the inclusion of the well-known companies on

the IFFL Lists of Companies given to IFFL members was mere window-dressing. That inclusion

was an attempt to add legitimacy to the Brost-connected entities on the IFFL Lists of Companies

by suggesting their comparables were the well-known companies. It was also an attempt to

create the impression that Brost and IFFL were not advising IFFL members by giving them

recommendations to buy a particular security of a particular issuer.

[928] Against this backdrop, predictably, we heard investor witness testimony that they never

seriously considered any investment from an IFFL List of Companies other than the one that

provided the international benefits.

[929] For example, investor witness KA said that he would not have chosen to invest in any

company that did not offer the international opportunity because he wanted the higher return – he

wanted to be able to participate in opportunities similar to those in which the banks make money.

Investor witness DRA said that his interest was in investing in the companies offering the

international side that IFFL structurists advised him were paying returns of 30 to 40%. Investor

witness KA described IFFL as "actively involved in orchestrating your investment" and bringing

the opportunity "to your attention, they advised you to make it, they assisted you in executing the

making of that investment".

[930] There was evidence that structurists expressed opinions on the merits of the Brost-

connected entities, rather than providing merely factual information. Investor witness SC

testified that her structurist recommended three different investments to her and her husband.

According to SC, the structurist then opined on the risk level of the targeted investments,

ultimately advising that Brost-connected Rapid Express was the least risky of the three

investments. On the basis of that advice, SC and her husband invested money in Rapid Express.

[931] IFFL structurists gave various other investment advice to IFFL members, such as how to

use leveraging strategies to fund their purchases of the recommended securities. Investor witness

SC testified that her structurist asked her for information about her net worth and assets and

advised her how to finance any investment she made through IFFL by taking out a home equity

line of credit or using existing RRSP funds.

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[932] Therefore, contrary to Brost's and IFFL's carefully worded documents provided to

individuals who became IFFL members – cautioning that IFFL was not providing "advice on

specific securities", distributing securities or soliciting an investment in securities – we find that

Brost and his organization IFFL were recommending that IFFL members purchase securities of

the Brost-connected entities.

[933] Based on all the evidence before us, we conclude that Brost and IFFL deliberately

"educated" investors to believe that they would be short-sighted or financially foolish if they did

not join IFFL to take advantage of the international side of investments being offered only

through IFFL. These investors were persuaded that they would make substantial money and, at

the same time, protect that money by moving it offshore – out of the reach of "regulators" and

tax collectors. A crucial part of Brost's and IFFL's scheme was to emphasize repeatedly the

advantages of the international side so that, when an IFFL member was presented with the

various "options" on an IFFL List of Companies, the only decision the member would make

would be to invest in the domestic Brost-connected entity offering the "very unique, highly

profitable and tax avoidance" international option. Predictably, many IFFL members – some

unsophisticated, inexperienced and vulnerable – followed this advice and decided to invest in the

Brost-connected entities offering the "international" component, such as Arbour and Rapid

Express.

[934] We find that IFFL members were deliberately steered by Brost and IFFL to invest only in

Brost-connected entities. We find that Brost and IFFL gave opinions on the investment merits of

the Brost-connected entities and securities and recommended that investors invest in those

entities and securities.

(b) Business Purpose

[935] We also conclude from the evidence before us that Brost and IFFL clearly had a business

purpose in providing the opinions and recommendations on securities that they did. IFFL, solely

owned and operated by Brost, received money from people when they joined IFFL, as well as

from anticipated annual renewal fees. People understood they had to join IFFL to access the

touted securities. IFFL structurists received a commission payment when a person joined IFFL

as a member; they received a much more significant commission when that member then

invested in one of the domestic entities offering an international component, such as Arbour.

Brost and IFFL also received money when IFFL members invested in the Brost-connected

entities recommended by Brost and IFFL.

[936] While there may have been an educational component to the advising activities of Brost

and IFFL (and we make no comment on the quality of such education), it is not necessary that

advising be their sole business activity (Kustom Design at para. 216). Brost and IFFL clearly

intended to profit from their advising activities, and those activities had a distinct degree of

organization, repetition and regularity over several years.

[937] We conclude that Brost and IFFL offered their opinions and recommendations on

particular issuers and securities to investors for a business purpose.

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(c) Conclusion on Advising

[938] We conclude that IFFL was organized and operated solely for the purpose of influencing

investors to join IFFL so that they would invest in the securities of Brost-connected entities

recommended by Brost and IFFL. Brost engaged in his own advising activity through, for

example, presentations and letters. He was also responsible for IFFL's actions. In the course of

giving opinions and recommendations on issuers and securities, Brost and IFFL collected

substantial money and paid structurists handsomely for funnelling investor money into the

designated international investments. Accordingly, both parts of the test required to find

advising in securities are met.

[939] Brost and IFFL were well aware of Alberta securities laws surrounding advising, having

given the Brost Undertaking and the IFFL Undertaking to the Commission in 2004 to refrain

from engaging in certain trading or advising activities. We conclude that Brost and IFFL tailored

the IFFL documents and added well-known companies' names to the IFFL Lists of Companies

given to investors as ruses to avoid regulatory attention and deflect concern that they were

providing unregistered advice in breach of the Brost Undertaking and the IFFL Undertaking.

[940] Advising under the Act does not require the use of words such as "I advise you to . . ." or

"I recommend that you . . .". Advising can also encompass, as here, intentionally guiding – or

pushing – investors into particular securities investments. Thus, despite their attempts at

pretence and their claims not to be advising, the evidence is clear, and we find, that Brost and

IFFL were engaged in advising in securities.

(d) Exemptions

[941] Brost and IFFL were not registered as advisors under the Act. Therefore, unless they had

an exemption available to them, they will have engaged in unregistered advising in securities.

[942] Alberta securities laws provide some limited exemptions from the advisor registration

requirement. During part of the time in issue here, these exemptions were set out in section 85 of

the Act; from 14 September 2005, they have been set out in section 3.7 of NI 45-106.

[943] There is no evidence that any of those exemptions were applicable and, as Brost and

IFFL did not participate in the Merits Hearing, we received no evidence or submissions from

them relating to reliance on any such exemptions.

[944] We conclude that no exemptions were available to Brost or IFFL for their advising

activities.

(e) Conclusion on Unregistered Advising Allegation

[945] As discussed, we have found that Brost and IFFL were engaged in advising in securities.

We have also concluded that none of the exemptions were available to Brost or IFFL for their

advising activities.

[946] We therefore conclude and find that Brost and IFFL contravened section 75(1)(b)(i) of

the Act by acting as advisors in Alberta without being registered to do so.

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D. Breach of Undertakings and Order

1. The Law

[947] Since 8 June 2005, sections 93.1 and 93.2 of the Act provided:

A person or company shall comply with decisions of the Commission or the Executive Director

made under Alberta securities laws.

A person or company that gives a written undertaking to the Commission or the Executive

Director shall comply with the undertaking.

[948] Section 1(n) defines "decision" as:

. . . a direction, decision, order, ruling or other requirement made by the Commission or the

Executive Director, as the case may be, under a power or right conferred by this Act or the

regulations . . .

[949] While there was no express statutory requirement before June 2005 that Commission

orders or undertakings given to the Commission be complied with, we consider any failure to

comply either with a Commission order or an undertaking given to us as conduct contrary to the

public interest.

2. The Undertakings and Order

[950] The Brost Undertaking stated that Brost, as president and CEO of IFFL, had "substantial

influence and control over the operations of IFFL and the activities of its facilitators, structurists

and independent agents". In the Brost Undertaking, Brost stated that he would not "directly or

indirectly, cause, encourage, instruct, allow, condone or participate in any trading in securities or

acting as an advisor . . . by myself, IFFL or any [of] IFFL's facilitators, structurists or agents".

The undertaking specifically referred to (without limiting its generality) securities of Quattro,

Consumer Debt Recovery Trust/Heritage Financial and SGD.

[951] The IFFL Undertaking, signed by Brost as president and CEO, stated that IFFL would not

trade in securities or act as an advisor – specifically (but not limited to) securities of Quattro,

Consumer Debt Recovery Trust/Heritage Financial and SGD.

[952] The Undertaking Order accepted the Brost Undertaking and the IFFL Undertaking,

among others.

3. Analysis and Finding

[953] We earlier found that Brost and IFFL engaged in illegal trades in and distributions of

Arbour Preferred Shares. We also found that Brost and IFFL acted as unregistered advisors in

relation to Arbour Preferred Shares and other securities, contrary to Alberta securities laws.

While some of this activity pre-dated the enactment of sections 93.1 and 93.2 of the Act, the

same activity continued from 8 June 2005.

[954] This illegal activity by Brost and IFFL on and after 8 June 2005 was contrary to the Brost

Undertaking, the IFFL Undertaking and the Undertaking Order. It is clear, and we find, that

Brost and IFFL thus contravened sections 93.1 and 93.2 of the Act.

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E. Fraud

1. The Allegation

[955] Staff alleged a contravention of section 93(b) of the Act (the successor to section 93(c))

by way of "a course of conduct relating to the securities of Arbour" that "perpetrated a fraud on

the [Alberta] Arbour investors" – "[t]he Respondents['] conduct placed the pecuniary interests of

the Arbour investors at risk and caused them to invest in Arbour without any or any sufficient

disclosure of the use to be made of their invested funds" when the intention was to move money

raised from the sale of Arbour Preferred Shares offshore to Merendon and other entities owned

or controlled by, or under the direction of, some of the Respondents. Staff set out several

particulars of the allegedly fraudulent conduct in the Notice of Hearing.


(a) Staff

[956] Staff claimed that the fraud alleged started from the time of Arbour's resurrection in early

2004. Staff contended that subjective knowledge on the part of the Respondents can be inferred

from the prohibited act and surrounding circumstances.

[957] There was some initial uncertainty as to the parameters of Staff's fraud allegation. Staff

clarified this in both written and oral submissions, stating that "the prohibited act or deceit

involved the distribution of funds from the sale of Arbour [P]referred [S]hares to Merendon and

other entities owned or controlled by Brost and/or Sorenson, without any or any sufficient

disclosure to the investors".

[958] In Staff's words:

[T]he allegation of the fraud is that funds were raised through Arbour from IFFL members, and

those funds were then transmitted or funneled to Merendon under unsecured agreements,

undocumented agreements; and then, in some respects, those funds were funneled back to

investors; True North, Grovenor, La [Conxion]. That's the fraud concept.

The mechanics of it, though, can be taken into smaller chunks or bite-sized chunks. In order for

there to be a fraud, there has to be a deceptive act. The deceptive act is not confined to the large-

scale fraud. There has to be a deceptive act that enables the fraudulent conduct to happen, and the

deceptive act is the failure to disclose in the [Arbour] OMs what's actually happening with the

money.

[959] In a nutshell, Staff contended that the alleged fraud involved deficient disclosure that

money raised through the sale of Arbour Preferred Shares was destined for entities, including

Merendon, that were owned or controlled by Brost or Sorenson (or both). Staff explained that,

as the evidence demonstrates, this disclosure failure was tied to all of the Respondents "because

the disclosure issue helps perpetrate the fraud [and] these people were all acting in concert; that

Sorenson, Brost, Morice, Arbour were all jointly involved in a program". Therefore, the lack of

proper disclosure by Arbour and Morice in the Arbour OMs was, according to Staff, "the

linchpin to the fraud". Staff also pointed to evidence of "significant deprivation" occasioned to

investor witnesses.

[960] Staff argued that, if Morice's defence was that all Arbour investors knew exactly where

their money was going, then Morice should have asked the investor witnesses about that and

#4155039v1

proved it at the Merits Hearing, which he did not. Staff emphasized that, even if all Arbour

investors knew about and were determined to access "the international 'accounts'", that did not

mean they also knew their money was being paid to Merendon via unsecured and undocumented

"loans" for unproven assets. Further, Staff questioned how Morice could know prospective

Arbour investors' state of knowledge when he admitted that he did not know what IFFL told

prospective Arbour investors, knew there was nothing in the Arbour OMs about loaning most of

the proceeds raised to Merendon and did not tell them anything himself.

[961] Staff submitted that the evidence proves that Merendon and Sorenson were involved in

the fraud from the initial deceptive act of Arbour's resurrection to facilitate sales of Arbour

Preferred Shares to investors to improper disclosure through to the distribution of Arbour

investor money to and through Merendon. In the alternative, Staff submitted that Merendon and

Sorenson, even if found to lack "actual involvement" in the fraud, would be caught by the fraud

provisions in the Act because Merendon and Sorenson knew or reasonably ought to have known

of the fraud being committed by Brost and IFFL regarding Arbour's use of investor money.

(b) Arbour, Brost and IFFL

[962] Arbour, Brost and IFFL made no submissions.

(c) Morice

[963] As was a theme throughout his submissions, Morice emphasized that he became involved

only after "the framework of the arrangement with [Merendon was] a done deal" (through a

lawyer), the Arbour board of directors had already been chosen by the time and:

Financial information has been -- has been disclosed that would indicate that Merendon is an

extremely viable concern, worth billions of dollars. Representations are out there that everything

is backed by gold deposits. And there's no indication at the time that there is anything wrong,

anything amiss or anything wrong in the house.

[964] Morice emphasized that he and Arbour should be viewed separately – Arbour's

participation started much "earlier [and] on a different level".

[965] Morice acknowledged that there had been a fraud perpetrated on Arbour investors;

however, he pointed to such fraud as being perpetrated by some or all of IFFL, Brost and

Sorenson (and, presumably, Merendon), not by Morice. Despite agreeing that a fraud had

occurred, Morice disagreed with Staff's characterization of the prohibited act or act of deceit in

this case, arguing instead that the "deceit was telling [Arbour investors] they were going to get

offshore managed accounts" with "huge interest rates" from SGD.

[966] Morice argued that Staff had committed to a theory of the fraud early on, then "had to

stick with that position, and really, they're just trying to integrate it" with the evidence. Morice

addressed Staff's theory of fraud as he understood it. Morice characterized the prohibited act

alleged by Staff as Arbour's failure to identify Merendon in the Arbour OMs as the recipient of

money raised by Arbour through the sale of Arbour Preferred Shares. Morice submitted,

however, that there was no prohibited act through deception in the Arbour OMs because "the

overwhelming weight" of the evidence demonstrates "that the Arbour investors not only knew

that their money would be going to either Merendon or some other Brost/Sorenson entity such as

#4155039v1

SGD, that was their primary reason for making the purchase of Arbour shares". Morice

emphasized that investors were not seeking to invest in Arbour, but were seeking the high returns

touted as stemming from the "international side" and the "managed accounts", which were to be

obtained as adjuncts to the Arbour investments. Therefore, according to Morice, the prohibited

act theorized by Staff was not a prohibited act because Arbour investors had not been relying on

the Arbour OMs when they made their investment decisions; rather, they had relied on – and

were deprived through – the information they received from Brost and IFFL.

[967] Morice acknowledged that his own involvement relating to the sale of Arbour Preferred

Shares "was assisting in the preparation" of the Arbour OMs. Morice admitted that it would be

possible to attribute to him knowledge of prohibited acts engaged in by others, but that the

evidence did not support such attribution here.

(d) Merendon and Sorenson

[968] Merendon and Sorenson agreed with the parameters for finding fraud and agreed with

Staff that there is breadth in the factor of whether a person knew or ought to know a fraud would

be perpetrated. However, Merendon and Sorenson did not agree with Staff that the required

"deceptive act" was as broad as contended by Staff. Merendon and Sorenson submitted that

Staff's fraud allegation was limited to alleged deceptive and deficient disclosure in the Arbour

OMs, in which Merendon and Sorenson had no role and for which they were not responsible.

Their contention was that "Merendon and Sorenson didn't engage or participate in any act,

practice or course of conduct relating to a security at all. They weren't involved in the

transaction between Arbour and investors." That is, Merendon and Sorenson submitted that,

because they had no role or involvement with the Arbour OMs' disclosure or with any of the

sales of Arbour Preferred Shares to investors, they had not engaged in any prohibited acts

relating to Arbour securities.

[969] Sorenson acknowledged that he knew IFFL was involved in raising money for Arbour,

but argued that such knowledge did not constitute a contravention of the Act. As counsel for

Merendon and Sorenson stated: "If you're participating with Milowe Brost and he's committing

an offence, that's one thing; but if you're doing a transaction, and he happens to be involved on

the other side, it's quite another thing." Merendon and Sorenson likened their lack of

involvement in the transaction relating to the security to the lack of involvement of "Arbour as a

landlord or the person that Arbour was paying to empty their garbage pails" in the transaction

relating to the security – there simply was, Merendon and Sorenson claimed, no participation by

them in the impugned transactions.

[970] In a similar vein, Merendon and Sorenson disclaimed responsibility for what Arbour did

with the money raised through the OMs – Merendon and Sorenson submitted that they "weren't

responsible for what Arbour did with its funds. . . . Merendon was responsible for what

Merendon did with its funds." They emphasized that Merendon's directors have a responsibility

to Merendon shareholders, while Arbour's directors were the ones with a responsibility to Arbour

shareholders, including the responsibility to conduct proper due diligence. In any event,

Merendon and Sorenson disputed Staff's characterization of the use of funds as part of the

alleged prohibited act, arguing that a finding of fraud would first require a finding of

participation in an act, practice or course of conduct relating to a security.

#4155039v1

[971] Merendon and Sorenson contended that Staff had not proved that Merendon and

Sorenson committed any fraudulent act. In the alternative, Merendon and Sorenson submitted

that they had "rebutted, on the evidence, any inference of recklessness through the clear evidence

of the course of investigation embarked upon by Sorenson and [Merendon] once they were

alerted to potential issues with SGD and Arbour after the fact".

3. The Law

(a) Statutory Regime

[972] Before 8 June 2005 the provision in the Act dealing with fraud was section 93(c). It

stated:

93 No person or company shall, directly or indirectly, trade in or purchase a security or an

exchange contract if the person or company knows or ought reasonably to know that the trade or

purchase does one or more of the following:

. . .

(c) perpetrates or may perpetrate a fraud.

[973] Section 93(c) of the Act was replaced, effective 8 June 2005, by section 93(b), which

provides:

93 No person or company shall, directly or indirectly, engage or participate in any act,

practice or course of conduct relating to a security or exchange contract that the person or

company knows or reasonably ought to know will

. . .

(b) perpetrate a fraud on any person or company.

[974] Section 93(c) of the Act was reworded to make clear that the legislature intended the

provision to have broad application to dishonest acts involving securities. However, we

conclude that the inclusion of "indirectly" and "trade" (which includes acts in furtherance of the

sale of securities) in the predecessor provision provided for a similarly broad application. In any

event, the amendment to section 93 would not result in any substantive difference for purposes of

this proceeding. It is also noteworthy that under both provisions liability will be found where

persons or companies reasonably ought to know that their conduct perpetrates a fraud on another.

[975] The parties agreed on the applicable law and principles, as set out in Capital Alternatives

at para. 308 (we note this approach was confirmed in a recent Commission decision, Re Shire

International Real Estate Investments Ltd., 2011 ABASC 608 at para. 168):

The term "fraud" is not defined in the Act. The gist of the meaning is not, however, difficult to

discern. Johnston and Rockwell [Canadian Securities Regulation, 4th ed. at 420] point to the

elements of fraud as enunciated at common law by the Supreme Court of Canada in R. v. Théroux,

[1993] 2 S.C.R. 5 at 27, which has been adopted in the context of securities regulation (for

example, in Anderson v. British Columbia (Securities Commission), 2004 BCCA 7 at para. 27):

. . . the actus reus of the offence of fraud will be established by proof of:

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1. the prohibited act, be it an act of deceit, a falsehood or some other

fraudulent means; and

2. deprivation caused by the prohibited act, which may consist in actual

loss or the placing of the victim's pecuniary interests at risk.

Correspondingly, the mens rea of fraud is established by proof of:

1. subjective knowledge of the prohibited act; and

2. subjective knowledge that the prohibited act could have as a

consequence the deprivation of another (which deprivation may consist

in knowledge that the victim's pecuniary interests are put at risk).

[976] Once the elements required for a finding of fraud have been established, a respondent's

intention or motivation is irrelevant. As a majority of the Supreme Court of Canada, in

discussing the criminal test for fraud in R. v. Zlatic, [1993] 2 S.C.R. 29, noted (at 43):

Where the conduct and knowledge required by these definitions are established, the accused is

guilty whether he actually intended the prohibited consequence [i.e. deprivation of another] or was

reckless as to whether it would occur.

(b) The Elements

(i) The Actus Reus

[977] To find the actus reus of fraud, it must be proved that that there was a "prohibited act" –

"dishonest act" – that resulted in "deprivation" to another.

[978] The first requisite of the actus reus – the prohibited act – is proof of "deceit", "falsehood"

or "other fraudulent means".

[979] "Deceit" or "falsehood" is established when it is proved that the person represented a

certain situation was something other than what it really was (Théroux at 17).

[980] "Other fraudulent means" is the catch-all concept, designed to capture a wide range of

dishonest commercial acts which appear to be neither deceit nor falsehoods but, when viewed

objectively, would be considered dishonest acts by a reasonable person. Examples of conduct

found to constitute "other fraudulent means" include personal use of corporate money, failure to

disclose important facts, unauthorized diversion or taking of money or property, and the

unauthorized use of investor money (Théroux at 16-17; and R. v. Currie, [1984] O.J. No. 147

(C.A.)).

[981] The second requisite of the actus reus – deprivation – is proof that there was detriment

(actual loss), prejudice or risk of prejudice to the economic interests of another or others. The

concepts of "prejudice" and "risk of prejudice" require only that another was or others were put

at risk of economic loss; no actual loss need be proved. It is also not necessary in proving

deprivation that the transgressor ultimately benefited or received an economic profit or gain.

Thus, in transactions involving securities, if an investment is made and a dishonest act is

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involved, prejudice to the investor will be found even when the investor suffered no direct

financial loss (Théroux at 16-17).

(ii) The Mens Rea

[982] To find fraud, there must also be proof that the person had subjective awareness of the

person's prohibited act and that such act placed another's or others' economic interests at risk.

[983] In many cases involving allegations of fraud, a panel will reach conclusions based on

inferences reasonably drawn from the evidence. Further, given the nature of fraud, it is

unnecessary to prove what the transgressor was thinking at the time the dishonest act was

committed – subjective knowledge can be inferred from the prohibited act and surrounding

circumstances, unless there is some plausible explanation that casts doubt on the inference. The

Alberta Court of Appeal has confirmed that the trier of fact can infer subjective knowledge from

the totality of the evidence (Brost at para. 48).

[984] An honestly-held hope or belief that no deprivation or risk of deprivation would result

from the dishonest act does not save a dishonest act from being found a fraud. As a majority of

the Supreme Court explained in Théroux (at 23-24):

A person who deprives another person of what the latter has should not escape criminal

responsibility merely because, according to his moral or her personal code, he or she was doing

nothing wrong or because of a sanguine belief that all will come out right in the end. Many frauds

are perpetrated by people who think there is nothing wrong in what they are doing or who

sincerely believe that their act of placing other people's property at risk will not ultimately result in

actual loss to those persons. If any offence of fraud is to catch those who actually practise fraud,

its mens rea cannot be cast so narrowly as this. As stated in R. v. Allsop [(1976), 64 Cr. App. R.

29], approved by this court in Olan, [[1978], 2 S.C.R. 1175] at p. 1182:

Generally the primary objective of fraudsmen is to advantage themselves. The

detriment that results to their victims is secondary to that purpose and incidental.

It is "intended" only in the sense that it is a contemplated outcome of the fraud

that is perpetrated.

[985] To find that a corporation contravened section 93(c) of the Act, or its successor

section 93(b), it need only be proved that the corporation's directing minds knew or reasonably

ought to have known that the acts of the corporation perpetrated a fraud.

4. Analysis

(a) Prohibited Acts

[986] The first step in our analysis of the fraud allegation is to consider whether a prohibited act

was committed.

[987] As noted above, Staff contended that the Respondents committed a series of prohibited

acts, which involved Brost, IFFL, Merendon and Sorenson – with the input and assistance of

Arbour and Morice – raising money from the sale of Arbour Preferred Shares to investors

(primarily IFFL members) and then moving that money offshore to Merendon and to other

Brost/Sorenson Entities, all without any (or sufficient) disclosure to the investors and with the

knowledge that investor money was thereby put at risk.

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[988] Despite Morice's contention that the prohibited act was different from that argued by

Staff, we consider the allegations in the Notice of Hearing broad enough to encompass Staff's

characterization of the prohibited act. Indeed, we conclude that there is clear and compelling

evidence to support Staff's position. As particularized below, the totality of the evidence

persuades us on the balance of probabilities that each of the Respondents engaged in an ongoing

course of conduct, involving at least indirect trading in (including acts in furtherance of sales of)

securities, that can be variously described as deceit, falsehoods or other fraudulent means.

[989] The evidence establishes – and we find – that Brost and Sorenson acted in concert for the

common purpose of obtaining substantial amounts of investor money to be funnelled to

Brost/Sorenson Enterprises in ways that would benefit them personally and put investor money

at risk. The evidence also establishes – and we find – that Brost and Sorenson were together the

masterminds behind the underlying investment scheme, with each having a distinct role in its

execution. Their scheme involved the use of IFFL, Merendon and Arbour (through Morice),

with the sale of the Arbour Preferred Shares to investors as the source of money that would

eventually make its way to Brost/Sorenson Entities for Brost's and Sorenson's personal benefit.

We now set out some of that evidence.

A Close Personal and Business Relationship

[990] Despite Sorenson's denial, we find the evidence as a whole clearly establishes that Brost

and Sorenson had a very close personal and business relationship indicative of a common

enterprise between them. Examples from the evidence include:

1) They had a long-standing personal and business relationship, which originated

with the formation of SGD in 1999 and continued throughout the Arbour

transactions and beyond.

a) They were equal shareholders in SGD from soon after SGD's inception,

and continued to be so throughout the Arbour transactions and beyond.

b) We have found that, notwithstanding any other SGD shareholders (SGD's

presidents were mere figureheads), SGD's real decision-making rested

jointly with Brost and Sorenson; Brost and Sorenson were the controlling

minds of SGD and only they had actual or de facto control over SGD's

operations:

i) Both Brost and Sorenson took deliberate steps to ensure their

names were not publicly tied to or associated with SGD. As

Hoffman testified: "Sorenson had his name on title a very little but

controlled -- controlled a lot". Sorenson explained to Hoffman his

displeasure about he and Brost being personally named as SGD

shareholders in a 20 May 2005 recorded conversation:

Sorenson: Well it would have been even better if you

would have put them [in context, the SGD

shares] in the name of your company.

Except they are not in the name of your

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company they're in your direct Owen

Hoffman name. So if anybody was going to

investigate SGD it would take them about a

half an hour to determine that you're a

shareholder, I'm a shareholder and Milowe

is the shareholder and Graham [in context,

Blaikie] merely holds shares in trust for us.

So there's no -- there's no secrecy that SGD

is technically because you are a Canadian

citizen and as is Milowe and you are a

Canadian resident that SG -- the whole

entire SGD company is basically an onshore

company and I am the manager.

. . .

SORENSON: [Adair] went over to Nassau provided the

instructions as sole director and changed it

from the corporation to personally the three

people.

HOFFMAN: I thought you knew that?

SORENSON: I don't want my f**king name on that

document, nor should you.

. . .

SORENSON: And I thought that what [Adair] had done is

transfer that situation to Graham so that if

you did a corporate search you would find

Graham as the President, sole director and

officer of the company and the sole

shareholder, that's what you would find.

Then moving beyond that there would be a

private trust agreement between Graham,

you, me and Milowe where we knew

whatever interest Graham was holding was

held for us respectively, do you know what I

mean? Graham doesn't hold anything

[inaudible] you know he's basically got the

shares [inaudible], which interestingly

enough if you look at the Pennsylvania

records before they were wiped off the web

now you know why they served [Adair]

because the search SGD came up with

[Adair's] name, knew he was in the United

States and searched, had you or I or Milowe

been residents of the United States -- . . .

We would have been served --

ii) Brost and Sorenson handpicked and appointed the four SGD

presidents, all of whom took their instructions for running SGD's

operations and affairs from Brost, Sorenson or both.

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iii) None of the SGD presidents were involved in soliciting the

investor money that flowed through SGD to Merendon; rather, all

solicitation activities were carried out by Brost and his companies.

iv) Brost and his associates, notably his wife Elizabeth Brost, were

responsible for the day-to-day administration of the SGD managed

accounts.

c) Although Sorenson denied any role in SGD decision-making, it is clear –

and we find – that he was very much in control of significant decisions

made regarding SGD operations in that Sorenson (among other things):

i) approved all SGD redemption requests for money by approving all

payments back to SGD by Merendon;

ii) handled, with Blakey and Adair, the negotiation and signing of the

2005 SGD/Merendon/Eiger Loan Agreement, without Blaikie's

involvement, even though Blaikie was SGD's president and sole

director at the time;

iii) was the one Blaikie contacted whenever he needed advice about

SGD's affairs; and

iv) controlled Merendon Honduras and the Merendon Honduras

compound where the SGD offices were located.

d) Brost's and Sorenson's worlds had remarkable overlap:

i) The same legal counsel provided legal services for both:

A) Skeith acted as legal counsel for Merendon, for Capital

Alternatives and for Strategic; and

B) Blakey provided legal services to IFFL, to Merendon and to

SGD.

ii) Brost's companies, IFFL and Capital Alternatives, raised money

from investors that was used to fund or acquire various ventures

owned or operated by Sorenson and Merendon – two examples

were SGD and Strategic (which acquired or was looking to acquire

Merendon holdings in Stone Mountain and Magna North).

iii) There were interconnecting close associates of the two:

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A) Brost, Strashok, Weis and Wigmore attended Sorenson's

2003 wedding in Honduras;

B) Weis (a long-time friend and business associate of Brost)

and Wigmore (a long-time friend of Sorenson and variously

a director or officer of Merendon and Stone Mountain)

were Arbour directors at the same time;

C) Strashok was Merendon's legal counsel and a director of

Merendon, Stone Mountain and Arbour; and

E) Regier, a long-time Brost associate, attended IBG meetings

in Honduras, was an officer of Strategic (thus was involved

in its activities) and forwarded investor money from Arbour

to Merendon.

2) Although Sorenson disputed the existence of IBG, testifying that it was a "figment

of [Brost's] imagination", we have found that IBG did exist – perhaps not as a

formal corporate entity but certainly as an organized group led by Brost and

Sorenson. We have also found that IBG's purpose was to control and keep track

of the multitude of entities in which Brost and Sorenson were involved – the

Brost/Sorenson Entities. The IBG meetings also evidenced an active and close

business association between Brost and Sorenson in early 2007, including that

they were – and we find – the controlling minds of IBG. For example:

a) The initial meeting, which included Sorenson and Brost as attendees, was

held at Sorenson's Merendon Honduras compound from 8 to 11 February

2007.

b) We have found that the February IBG Minutes are at least mostly

accurate, including their representations that Sorenson participated in most

of the IBG discussions and votes. We have also found that the March IBG

Minutes are at least mostly accurate, including their representations that

Sorenson participated in most of the IBG discussions and votes on the

days he attended. These minutes recorded that, with three exceptions, all

resolutions were made by either Brost or Sorenson, executive summaries

of certain projects were to be prepared for the IBG Advisory Committee of

which Brost and Sorenson were members, and many of the discussions

focused on their company SGD.

3) Sorenson was intimately familiar with Brost's IFFL organization. In a 24 March

2005 conversation Sorenson informed Hoffman that IFFL had "59 structurists,

225 agents, 176 prospects. According to his business development [inaudible]

they're writing an average of between 8 and 10 contracts per day for an average of

between 50 thousand and 100 thousand [presumably dollars]".

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4) Associates and an investor witness offered up various descriptions of the

interaction between Brost and Sorenson suggestive of a close personal and

business relationship:

a) Morice believed Brost and Sorenson "had a very integrated business

relationship and kind of worked as a team".

b) Wigmore understood Brost was involved in SGD, raising money for

Merendon and Sorenson.

c) Hoffman testified that Brost and Sorenson were "[v]ery much partners and

friends".

d) Regier considered them "50/50 partners" and heard Sorenson refer to

Brost as his partner and equal partner.

e) Skeith testified that in early May 2004 Brost, Strashok and Sorenson

appeared to know each other and to be comfortable with each other.

f) Investor witness DRA understood that Brost and Sorenson had "a business

relationship", and said that Brost at IFFL meetings would sometimes "kind

of talk about how he had to be negotiating with [Sorenson] about certain

rates of return".

5) When together, Brost and Sorenson acted in a manner suggestive of a close

personal and business relationship:

a) Sorenson acknowledged that he personally spoke with both of Brost's

cardiologists when Brost had heart issues.

b) Sorenson acknowledged he was the guarantor on "a couple of credit

accounts" that Brost and his family had in Honduras.

c) Sorenson acknowledged that Brost attended "as an honorary guest at a

couple" of Merendon board of directors' meetings.

d) In a DVD entitled "Merendon Dec 2004", Sorenson informed the SGD

investor tour group gathered in his office in Honduras (which gathering

Brost eventually joined) that he and Brost "enjoyed each other", and

described how "we" produced a "gold-backed fund [in context, SGD]".

e) In a DVD entitled "Honduras - Merendon Mining Due Diligence Trip -

Feb 2006", during the excerpt from the group dinner at Sorenson's home in

Honduras, Sorenson (with Brost sitting beside him) referred to how "we

are grateful obviously to you folks" and assured them "we're working

hard". Sorenson attributed success to "Milowe's leadership" combined

#4155039v1

with "our development of the mining company". The two joked that they

were like "Butch Cassidy and the Sundance Kid".

Underlying Investment Scheme

[991] The evidence as a whole leads us to conclude, and we find, that Brost and Sorenson,

acting in concert, were instrumental in devising – were the masterminds behind – an investment

scheme to raise money from the sale of securities of a public company and then to divert

forthwith money paid into that public company to Brost/Sorenson Entities. We find, on the

totality of the evidence, that the scheme's establishment and intended operation was as follows:

1) Brost and Sorenson developed an investment scheme to raise money from

investors that would be used to fund mining and other ventures of Sorenson and

Merendon, to pay generous commissions to Brost and IFFL, and to pay high

purported administrative expenses to a Brost-connected entity or entities. Public

investors would be lured by the prospect of moving their money offshore into

"managed international accounts" that were to pay fantastic guaranteed rates of

return, supposedly backed by Merendon's "gold". Brost would be responsible for

marketing the investment (the investment originally to be SGD). Brost created

IFFL (after Capital Alternatives ran into regulatory trouble) for the purpose of

promoting and selling to IFFL members securities of companies controlled by

him, Sorenson or other associates. Sorenson would be responsible for providing

the enterprises that would lend legitimacy and attraction to the investment –

Merendon's gold mining operations.

2) Brost and IFFL needed a way to access more of IFFL members' money – namely

their RRSP holdings, referred to as "low hanging fruit". Because Brost

understood that shares of a public company were an RRSP-eligible investment, he

wanted to take over a public company in which IFFL members could invest their

RRSP money. Brost, in an 8 June 2005 taped conversation with Hoffman,

confirmed that, if "we're going to keep going in the direction we're going" and

access RRSP money, "we're going to have to use a public company".

3) This refinement would have public investors enticed by the promise of investing

in a single Canadian company but receiving not only shares of a Canadian

exchange-listed company (the desired RRSP-eligible investment) but also an

international investment. The latter component would involve moving money

offshore out of the reach of taxing authorities into managed accounts that would

provide exceptionally high guaranteed returns, again theoretically backed by

Merendon's gold.

4) The securities would be sold to investors using offering memoranda in an attempt

to make the investment appear legal and genuine. We believe Brost and Sorenson

realized that, given the growth of IFFL and the exorbitant amount of money it was

raising, it was becoming vital that it legitimize its operations. A conversation

took place between Sorenson and Hoffman on 3 July 2004 about the need to make

IFFL's fundraising activities appear legally compliant:

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Hoffman . . . when we first started and as you know when you first start

any organiz -- any company you push whatever rule is

necessary into the ditch so you can keep going.

Sorenson Yeah.

Hoffman And we pushed most of them if not in the ditch, off in the

field, fine but now it's reached a different level and with the

num -- the volume of money and everything else that he's [in

context, Brost's] talking and then the -- the size of his

organization [in context, IFFL] and the profile has come up,

you're now on the radar especially Milowe, you know.

Sorenson M-hmm.

Hoffman And it's time to make it compliant . . . .

5) Investors were not to learn much about the investment from reading the disclosure

in the offering memorandum, it being provided only to appear to comply with

securities laws, not to inform. The more alluring information would be provided

outside the disclosure documents by IFFL structurists in group and one-on-one

meetings with investors. Brost, IFFL and its structurists would receive healthy

commissions for their selling efforts.

6) The public company would be controlled by Brost and Sorenson, although that

would not be made known to investors providing the money. Brost and Sorenson,

as the true intended recipients of investor money, did not want any connection to

them to be made. Therefore, all of the public company directors would be Brost

and Sorenson nominees. The individual selected as president need not have much

(or any) relevant business or capital-market experience as he merely needed to

follow and implement Brost's instructions. The public company would be a shell

with little in the way of real operations or personnel; its core business was to

receive investor money, which would be paid ultimately to Brost/Sorenson

Entities.

7) Investor money would be transferred forthwith from the public company's coffers

to Merendon, to be disbursed to the scheme's various participants. To lend a

semblance of legitimacy to the movement of money to Merendon and stave off

possible audit or regulatory scrutiny, Sorenson would provide an asset or assets

that would be sold to the public company for an amount that would largely offset

the money paid out to Merendon; however, the sale amount of any such asset

would be far greater than the actual value of the asset. Also, Sorenson and

Merendon might retain a right in any such asset in case the asset proved to have

value. Sorenson and Merendon would receive the investor money for the use of

themselves and others involved in the scheme, and the public company would be

left with assets of little or questionable value.

#4155039v1

Execution of the Investment Scheme

[992] We find the evidence as a whole clearly establishes that Brost, IFFL, Sorenson and

Merendon, with the critical assistance of Arbour and Morice, engaged in activities for the

purpose of obtaining investment money from the sale of Arbour Preferred Shares and converting

it to their own use. We find that millions of dollars raised from unwitting investors were

invested in Arbour without any disclosure to them of the master plan – to collect RRSP and other

money, funnel the money to Merendon, and there, beyond the scrutiny of others, disburse the

dollars to other entities, primarily Brost/Sorenson Entities. Morice and Arbour were, we find, at

best wilfully blind dupes in the early days of the scheme, and certainly at some point, common

sense tells us, they became willing accomplices in the scheme. We also find that the Arbour and

Merendon transactions were shams, with values concocted by Brost, Sorenson or both to justify

the flow of money to Merendon and elsewhere. Deceit, falsehoods and other fraudulent means

were, we find, all actively employed by the Respondents in successfully implementing this

complex scheme. The result was that Sorenson became, as he told IFFL members, "a very

wealthy man", as did his personal and business associate Brost.

[993] We set out here the more salient aspects of the evidence that have led us to these findings,

including evidence of each Respondent's respective role in the fraudulent activities:

1) Arbour was resurrected purely to support the investment scheme devised by Brost

and Sorenson:

a) Although Brost never held any official position with Arbour, he was

principally responsible for its resurrection and (with the caveat noted

below) ultimately responsible for its ongoing activities:

i) In the summer of 2003 Brost began searching for a public

company that could be used as an RRSP-eligible investment

vehicle for IFFL members. He (and Sorenson, as discussed below)

eventually identified Arbour as an ideal public company and took

control of it. We find that Brost, who would be marketing the

investment, did not want it known that he had any control or

direction over the public company and so arranged for others to

serve in official roles.

A) Brost told Hoffman, in an 8 June 2005 conversation, that

Houston had been given the responsibility in the summer of

2003 of finding a public company that IFFL could use as

the investment vehicle to access RRSP money. When

Houston had not yet found a public company by November

2003, Brost had given Houston two names; we think it

reasonable to infer – and do – that one such name was

Arbour.

B) Houston then contacted Strashok and began the

negotiations for Arbour's control. When his efforts were

#4155039v1

failing, Brost stepped in to complete the negotiations and

recruited his long-time friend Weis to become an Arbour

director and provide the $300 000 required for Arbour's

reorganization and change of control. He also recruited

Morice, a business associate, to become a director and the

president of Arbour. Weis and Morice were Brost's

nominees on the Arbour board of directors.

ii) Although never holding any official position with Arbour, Brost

exerted significant control over its operations and finances,

through his long-time friend Weis and business associate Morice

and otherwise:

A) Skeith described Brost as the controlling mind of Arbour at

the beginning of 2004, and referenced Brost's participation

in various Arbour matters, including the selection of

Arbour's new directors, involvement in early negotiations

of the loan transactions between Arbour and Merendon,

and the preparation of OM 1.

B) Brost retained Expedia to provide administrative services to

Arbour.

C) Regier testified that Brost appeared to be the one running

Arbour, with Morice taking instructions from Brost.

D) Brost was involved in discussions about the terms for the

issuance of the Arbour Preferred Shares, and the use to be

made of the money raised:

I. Brost told Morice that "the key for them was that

money get parked offshore right away" and then

significant money would be made available to

Arbour;

II. Brost told Morice that an offering memorandum

was to be used in raising money from the sale of the

Arbour Preferred Shares;

III. Morice then worked with Skeith to draft the

required offering memorandum, at – we believe and

find – Brost's direction;

IV. Brost told Morice that, if Arbour did not send the

money raised to Merendon, "the money would stop"

coming from IFFL members; and

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V. We have found that Brost for all intents and

purposes instructed Morice that Arbour was to lend

money to Merendon.

E) Brost was involved in discussions about the calculation and

payment of the interest owing on money loaned to

Merendon.

F) IFFL provided Arbour with $25 000 – "basically . . . seed

money" – until investment money started coming in to

Arbour.

b) Although Sorenson never held any official position with Arbour, he too

had some involvement in Arbour's resurrection and restructuring. His

role, however, was minimal, in keeping with limitations caused by his

previous regulatory difficulties and with the separate roles to which he and

Brost agreed – Brost being responsible for raising money and Sorenson for

providing the enterprise or enterprises to receive that money. We find that

Sorenson also had ultimate responsibility for Arbour's ongoing activities

in one sense – he was prepared to exert his influence on those activities

should the scheme not unfold as anticipated. We also find that, like Brost,

Sorenson did not want it known that he had any control or direction over

the public company and so arranged for others to serve in official roles:

i) Sorenson commenced negotiations with Strashok, in the summer

of 2003, to take control of Arbour. As noted, we think it no mere

coincidence that, immediately after Sorenson failed in his bid for

Arbour, Brost, "out of the blue" pursued Arbour as the RRSP-

eligible investment vehicle for IFFL members.

ii) Skeith testified that Sorenson had some involvement in some of the

discussions taking place involving Arbour's reactivation, and

Sorenson's name appeared in one time entry in the April 2004

Skeith Account.

iii) Morice understood that Sorenson was one of the "key players" in

Arbour's reactivation, and that Sorenson and Brost had a "master

plan" for Arbour.

iv) We have found that Wigmore (a long-time Sorenson associate)

was Sorenson's nominee on the Arbour board of directors. This

was indicative of Sorenson exerting influence, or having the ability

to exert influence, in the management of Arbour.

#4155039v1

v) Sorenson was fully aware that Arbour would be, and was, raising

money from IFFL members and that money would then flow to his

company Merendon under the guise of loans and asset acquisitions.

c) Brost and Sorenson referred to Arbour as Brost's public company and

acted as if Arbour were under their control and direction:

i) In the Hoffman Tapes, Brost told Hoffman that the Commission

employees were "being a**holes" for cease-trading Arbour and

making his attempts to "move cash flow forward" a "hell of a

challenge".

ii) In a 3 July 2004 conversation, only weeks after Arbour's

reactivation, Sorenson told Hoffman that Brost had received

approval, referring to what Brost was doing with Arbour.

iii) Later in the same conversation, Sorenson discussed with Hoffman

Brost's "public company" (which Sorenson agreed was a reference

to Arbour) and that Brost had "a tremendous amount of money

backstopped in the pipeline" which would lead, or contribute, to a

"very lucrative month" for Merendon.

iv) The February IBG Minutes – from the meeting which both Brost

and Sorenson attended – discussed many private and confidential

matters concerning Arbour, even though no Arbour representative

was in attendance. Matters discussed included Arbour's trading

halt and reasons for it, Arbour's loan to Merendon reputed to be

$42 million, an unexecuted contract between Arbour and

Merendon for the TRL technology, Merendon's receipt of offers

for that technology and Morice's failure to move forward with the

TRL contract. The IBG Advisory Committee resolved that, if

Morice did not fight the Commission, get the stock trading again

and finalize the TRL contract, a new president would be chosen for

Arbour. As noted above, we do not believe Sorenson's contention

that he was not involved in this discussion, given his obvious

interest in matters relating to Merendon and the company – Arbour

– that was providing Merendon with substantial amounts of

money. We find that Sorenson and Brost were active participants

in discussing the many Arbour matters raised at the February IBG

Meeting, and take this as evidence of their continuing control over

Arbour's activities.

2) Arbour did not advertise or otherwise promote the sale of the Arbour Preferred

Shares to investors; rather, Brost and IFFL provided the majority of Arbour

investors from IFFL's membership:

#4155039v1

a) Brost told Morice that money would be raised for Arbour from IFFL

members.

b) IFFL members were advised by IFFL structurists that investing in Arbour

Preferred Shares would give them both a domestic investment in a

Canadian oil and gas publicly-listed company and an international

investment with the promise of an offshore managed account. As well,

interest on the investment would not be subject to taxation. A small

portion of the money invested was to remain in Arbour, with the larger

amount (less commissions and administrative expenses) invested in the

offshore managed account.

c) The clear message to IFFL investors was that IFFL, Merendon, SGD and

Arbour, among others, were integrally related. Sorenson thanked IFFL

members "for making me a very rich man", conveying the impression –

which we conclude was accurate – that their money had made him a

success.

d) Without any solicitation from Arbour, IFFL members directly contacted

Arbour, a recently reactivated (from bankruptcy), essentially shell

company, to request the offering memorandum required to complete their

purchases of Arbour Preferred Shares.

e) Most of the investor witnesses did not rely on information in the Arbour

OMs when making their decisions to invest in Arbour, relying rather on

verbal advice received from IFFL structurists. Morice said that he did not

know what prospective Arbour investors had been told, and that he did not

tell any Arbour investor about the loans to Merendon.

f) Brost's and IFFL's solicitation efforts on behalf of Arbour listed for trading

on the CNQ were remarkably successful. They raised approximately

$45.5 million in just under one and one-half years.

3) The transactions between Arbour and Merendon were sham transactions – not

papered, or appropriately papered, until much later – to justify the movement of

investor money from Arbour to Merendon. Those transactions were orchestrated

and implemented by Brost and Sorenson, who were at pains to create and

maintain the fiction that their respective companies, IFFL and Merendon, were

not connected. Morice's participation as Arbour's president was essential to

provide the scheme with a semblance of legitimacy and an appearance of

independence from Brost (whose organization IFFL was raising the money) and

from Sorenson (whose company Merendon was to be the recipient of that money

through loans and sales of rights to oil sands technology):

a) In a 13 October 2005 conversation with Hoffman, Sorenson emphasized

the necessity of the illusion of separation between Merendon and IFFL –

#4155039v1

"no matter what -- what happens Merendon's got to stay over here and

marketing [has] got to stay over there".

b) When Morice first joined Arbour, he was told by Brost (who had no

official position with Arbour) that Merendon would be amenable to having

Arbour loan money to Merendon.

c) Morice, as president and CEO of Arbour, had primary responsibility for

Arbour's business and operations. Yet he did not question when Brost for

all intents and purposes instructed him to loan money to Merendon;

indeed, he blindly complied with Brost's instructions even though he knew

that Brost had no official role with Arbour. Morice also knew little about

Sorenson or about Merendon's financial viability – they were strangers to

him. These factors should have raised red flags for Morice.

d) Morice himself was surprised by Brost's and IFFL's success in raising such

a significant amount of capital.

e) The evidence suggests that few, if any, negotiations occurred before the

Letter of Intent was agreed to by Morice. This was a very material

contract for Arbour – a recently reactivated, essentially shell company

with few assets committing to a $10 million loan. Yet very little, if any,

due diligence was conducted by Arbour and Morice on Merendon and

Sorenson. Morice knew that Merendon's assets were located for the most

part offshore, that it was a mining exploration enterprise and that Arbour's

money was being sent offshore. In our view, Morice's, as president and

CEO of Arbour, should have perceived the potential for fraud in agreeing

to loan $10 million to an unknown offshore company (Merendon)

arranged by the same person (Brost) who was raising a very substantial

amount of money for Arbour, an essentially start-up company with a yet to

be determined business plan. That potential was heightened by the fact

that Brost – to conceal his pivotal role in Arbour's business decisions – did

not want his name associated with Arbour. With this knowledge, and also

knowing there was no security for the significant $10 Million Loan

Arbour would be making, Morice executed the Letter of Intent on behalf

of Arbour. In our view, Morice had a duty to ensure adequate safeguards

were in place so that the money being raised from Arbour investors could

not be used for an improper purpose. However, Morice did little in the

way of due diligence to substantiate Merendon's worth, which had been

represented to him to be "$2 billion". Morice did confirm that he had seen

Merendon's internal financial statements at the time Arbour entered into

the verbal deal with Merendon, which showed assets of over $1 billion,

based on the value of its mining ventures. As noted, these were, it seems,

the 2003 Merendon Financial Statements, which also showed liabilities of

over $1 billion. Morice also recalled that the financial statements he

reviewed showed that Merendon did not have any significant income

#4155039v1

being produced from those assets, but said that he was not concerned

because the income statement did not show gold sales not yet made, and

he had seen what he believed was about $1 million worth of gold in

Merendon's vault in Tegucigalpa. Also as noted, Morice's evidence does

not accord with the 2003 Merendon Financial Statements, which showed

income from gold and jewellery sales of US$474 332 before expenses.

Morice apparently never questioned why a company worth "billions"

needed to borrow money from Arbour for a 10-year term that was to be

used for funding or working capital. He also apparently did not see the

need to ensure that the loan was well secured, even though he recognized

the risks of lending money to offshore entities. With Morice executing the

Letter of Intent on behalf of Arbour and Sorenson on behalf of Merendon,

the semblance of an arm's-length transaction was perfected.

f) When the $10 Million Loan Agreement was finally executed in

approximately May 2005 (backdated to 10 July 2004) it was done at the

behest of Arbour's auditors, not Morice. Again, there was little evidence

of any negotiations taking place. The security provided in the $10 Million

Loan Agreement was a 5% interest in TRL, which Merendon had

purchased for a mere $100 less than one year before Arbour's first advance

of the loan money. Arbour and Morice did not take the commercially

prudent and reasonable step of obtaining a valuation of the TRL

technology to ascertain whether the value of a 5% interest in TRL would

support the $10 Million Loan. While Morice said that he and Arbour were

always interested in acquiring the TRL technology, Morice apparently

formed his opinion that the TRL technology was valuable on nothing more

than what Sorenson told him (and there was no evidence before us that

Sorenson had any reasonable basis for what he told Morice).

g) In January 2005 Morice, again on behalf of Arbour, agreed to purchase

COREL. Once again, Morice did not take the commercially prudent and

reasonable step of obtaining a valuation of COREL. There was also no

evidence as to how the purchase price was determined or what

negotiations took place. Indeed, the evidence suggested a "done deal",

with nothing to negotiate. What is known is that Merendon purchased its

interest for $52 in 2003, and there was no evidence of any significant steps

being taken to advance COREL's commercial viability from that date until

COREL was sold to Arbour.

h) Between February and the end of November 2005 Arbour continued to

advance further money to Merendon. Inconsistent with normal

commercial practices, these substantial advances of money – totalling

some $28.6 million – were initially neither documented nor secured in any

fashion. In early 2006, after all of the some $28.6 million had been

advanced, the $45 Million Loan Agreement was executed. The security

provided was a guarantee and general security agreement from Merendon

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Ecuador, an offshore entity that had earned virtually no income in 2005

and whose major asset was the Tena Concessions purchased by Merendon

for less than $800 000 a year or two earlier. As with the TRL technology

and COREL, Morice and Arbour did very little, if any, due diligence to

assess the value of Merendon Ecuador. Morice's explanation as to why

Arbour continued these undocumented and unsecured loan advances to

Merendon indicated to us a non-arm's-length commercial transaction:

Q Did you ask for additional security on the loan?

A There was continued ongoing discussion about security, but

the reality is all of the deposits were in countries likes [sic]

Honduras and Venezuela and Peru and Ecuador, so having

copious paper wouldn't necessarily mean much anyway. It

was an issue of trust and our final judgment as to whether or

not we trusted the international network, and we did.

. . .

Q Why didn't you paper or document these transactions at the

time the money was advanced to Merendon?

A You know, essentially it, it was a trust situation, the, the assets

of Merendon are located in places like Honduras and Ecuador

and Peru and Venezuela, so in terms of collecting, we could

have had the greatest security in the world and not been able

to do anything with it, so that's probably a feeble excuse, but

the bottom line is we were busy and everything started, and,

and, you know, it was a challenge for us just to keep up with

the day-to-day stuff.

i) Again with little or no evidence of negotiations or of how the decision was

reached, in March 2007 Morice on behalf of Arbour agreed to purchase

Merendon's 25% interest in TRL for, we think no coincidence, the exact

amount of the money already advanced to Merendon under the

$45 Million Loan – some $28.6 million. Indeed, at Merendon's request,

the TRL Share Purchase Agreement provided for an upward adjustment in

purchase price – to $50 million – in the event the valuation of the TRL

technology resulted in a higher value than the originally agreed purchase

price. There was, we think notable, no corresponding provision for

downward adjustment of the purchase price in the event the valuation

resulted in a lower value.

j) No valuation was completed for the TRL technology although a valuator

had been retained and commenced work on a valuation; Arbour stopped

responding to the valuator's requests for information and the valuation was

never completed. This was around the same time (February 2007) that the

February IBG Minutes recorded that "either the President of Arbour

finalizes the TRL contract . . . or a new president will be chosen for

Arbour who will then proceed accordingly". A year earlier Sorenson

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informed a group of SGD and Base Metal investors during a tour of

Merendon Honduras that he had talked with Brost about Arbour and

assured the group that, although he was not happy with Arbour's

management, he would not allow Arbour to fail. We find it reasonable to

infer from these facts that Morice was instructed by Brost, Sorenson or

both to finalize the TRL sale without a valuation. We further find that

Morice did as he was told, with no consideration of the transaction's

commercial reasonableness or of the best interests of Arbour and its

shareholders.

k) No due diligence or valuation was ever completed for the TRL technology

or COREL. We think it reasonable to infer from the totality of the

evidence that there was never any intention on the part of Merendon that

any valuation would be completed. There was no evidence before us of

Merendon insisting on a valuation, and we think for good reason: we

believe that any valuation completed would not have supported the money

paid for COREL or for the TRL technology (which was, at best, in an

infancy stage, with no reasonable assurance of commercialization

established). The evidence was that the TRL technology was inherently

speculative. Chow, the ARC representative, did little to confirm the value

of the TRL technology, acknowledging that it was "very much" in the

experimental stage at the time of his report in November 2005 and still

was years later, including at the date of the Merits Hearing. In terms of

bitumen recovery, only one of five samples tested showed better recovery

using the TRL technology than the caustic or water then currently in use,

and then only by 3%. The other four samples saw better recovery with the

caustic or water applications. Chow also acknowledged that cost

calculations would have to be performed to commercialize the process;

there was no evidence that had been done. Although there was evidence

of other interest in TRL, no one other than Arbour made an offer for either

the TRL technology or COREL.

l) There were interest payments made on the $10 Million Loan – some

$77 000 for the period ended 31 December 2004 and approximately

$750 000 in March 2006. However, the evidence was that these payments

did not come from Merendon – neither payment is recorded as a

disbursement in the Merendon Financial Statements; and the second

payment was made by Adair with, we find, investor money. Further,

while (according to Merendon) these interest payments stopped when

Arbour failed to complete the valuation of the TRL technology, we have

inferred there was never any intention on the part of Merendon that any

valuation would be completed.

m) Officers and directors are entitled to make rational business judgments and

take calculated risks, all with a view to the best interests of their company

and shareholders. Not all commercial ventures will be successful; risk-

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taking is a key part of commercial activity and undertaken with a view to

profit. But a reasonable degree of care and diligence is expected and

required. In this case, Morice exercised no sound or reasonable business

judgment, nor rational decision-making. Before agreeing to purchase the

TRL technology and COREL, Morice should have had reasonable grounds

for forming the belief, and believing, that it made commercial sense for

Arbour to purchase the TRL technology and COREL. No one pays

millions of dollars without a reasonable expectation of an economic

benefit in return. Morice, with no previous experience in the valuation of

oil sands technologies such as the TRL technology, completely failed to

ascertain the commercial viability of the TRL technology and COREL

before committing Arbour to make large cash outlays. He committed

Arbour to advancing large sums of money to an offshore entity, while

appreciating the risks involved with repatriating the money in the event of

default. He should have asked incisive questions; it was not enough to

rely on Sorenson's claims or on the supposed interest shown by other

entities. If after asking searching questions Morice still could not

determine the commercial viability or value of the TRL technology, he

should have ensured that Arbour retained independent experts to provide

satisfactory answers to such questions on which he could reasonably rely.

It is clear that Morice never did ask probing questions or receive answers

on which he could base commercially reasonable decisions and judgments.

Morice should at least have been suspicious that Brost and Sorenson were

using him and Arbour for an improper purpose. Instead, he operated

initially as a puppet whose strings were being pulled by others, eventually

as a willing participant in the scheme, all to the detriment of Arbour and

its shareholders.

4) Arbour carried on little in the way of real operations; its core function was to act

as the recipient and conduit of money for Merendon, which ultimately was to

make its way to Brost, Sorenson or Brost/Sorenson Entities:

a) Given the reality of its operations, Arbour had few employees; perhaps

only one or two had some oil and gas experience. Neither Morice nor

Hobbs apparently had relevant oil and gas or much, if any, capital-market

experience.

b) As of the date of OM 1, Arbour had a two oil and gas ventures in or

nearing production – one not valued that generated revenue of

approximately $4000 per month, the other acquired for $50 000 which

"should be in production within 60 days".

c) As of the date of OM 2, Arbour (in addition to the previous two ventures)

had acquired: the Crazy Hill property for $1 million (for which it paid

$350 000 and 650 000 common shares); and an additional interest in three

gas wells for $175 000 and 150 000 common shares.

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d) As of the date of OM 3, Arbour had acquired a participation interest in

Sedalia, as well as agreements to acquire oil and gas properties in

Southeast Asia and Myanmar. We note that this latter transaction again

apparently involved Brost-connected entities.

e) The one promising oil and gas transaction – Crazy Hill – was effectively

reversed (Arbour was paid the same purchase price it had paid to acquire

the property one year previously), with the sale proceeds ending up in the

hands of Sorenson and Merendon, ostensibly to offset outstanding money

on the COREL transaction even though at the time Merendon owed

Arbour some $38 million. A joint venture to operate the Crazy Hill

property was ultimately entered into between Vogel (5% interest), who

was or had been a Merendon director, and Sorenco (owned by Ken

Sorenson (51% interest) and Merendon (49% interest)).

f) Morice never questioned the authority of Regier – who was associated

with Brost and IFFL but not with Merendon or Arbour – to request

millions of dollars from Arbour so that Regier (not Morice or anyone from

Arbour) could send it to Merendon. We find such action further indicative

of Morice's unfaltering willingness to follow Brost's instructions and not

ask questions that might lead to unfavourable or unwelcome answers. It

also demonstrated to us that Morice, despite being the president and CEO

and a director of Arbour, was not Arbour's guiding mind.

5) Most of the investor money received by Arbour was almost immediately diverted

to Merendon, with no reasonable prospect of recovery:

a) Of the approximately $45.5 million raised by Arbour from the sale of the

Arbour Preferred Shares, over $38 million was loaned to Merendon and a

further $5.3 million was expended on acquiring COREL from Merendon

and its three partners.

b) Merendon's operations depended on the receipt of this money from

Arbour:

i) Regier testified that the goal was to get $2 million per month to

Merendon, to be met with money raised from sales of Arbour

Preferred Shares. Sorenson denied this in his testimony, although

he earlier, on 15 November 2006, told Hoffman that he had – we

infer, from the evidence as a whole, during the Arbour fund-raising

efforts – given Brost a budget:

. . . he [in context, Brost] gets so mad at me and I just say look

you either f**king tow [sic] the line with me or I'm gone.

Now he doesn't tell me how much money he's sending me, I

give him a budget and I say either give me this f**king money

#4155039v1

every month, you miss one month you're done I go to your

membership and say you're finished . . . .

ii) Brost acknowledged that his fundraising efforts on behalf of

Arbour were critical to Merendon. He told Hoffman, on 8 June

2005, that "in all fairness to Gary [in context, Sorenson] we had

some difficulty with our public company in the month of May, we

literally lost all cash flow . . . . So he has a quantum cash flow

problem".

iii) Brost related to Hoffman, in a 14 July 2005 conversation, that

Sorenson was "put on notice" when Arbour was cease-traded

because the cash flow from Arbour to Merendon "just went plop".

iv) Kendall, in a 25 May 2005 conversation with Hoffman, discussed

Merendon's cash flow problem:

There was a black hole and any money that comes into Gary

you have very little chance of getting it back because he -- he

-- he's SGD's biggest problem, or Merendon's biggest problem

is that they haven't got a cash flow.

6) Arbour money was used not only to finance Merendon's operations and ultimately

Sorenson personally but also to fund other Brost/Sorenson Entities:

a) Arbour investor money was forwarded to Merendon by Morice with the

assistance of Regier, who had no formal connection to Arbour or

Merendon. Once the money reached Merendon, it was further distributed

among Merendon and several other accounts and entities.

b) Following the first two of the Brost/Regier Distribution Instructions,

Merendon transferred Arbour investor money to La Conxion, a Brost-

related entity.

c) The Brost/Regier Distribution Instructions then changed, requesting that

Arbour investor money be wired, not to La Conxion, but to True North,

another Brost-related entity. This, in our view, explains why there were

only two payments from Merendon to La Conxion – any other payments

originally contemplated to be made to La Conxion may well have been

included in the several larger transfers of money from Merendon to True

North.

d) The evidence was that Sorenson knew a great deal about True North and

its connection to Brost:

i) Sorenson knew True North was a company in Brost's orbit that

allegedly had a financial relationship with SGD because that was

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how Sorenson explained Merendon's payments to True North.

Because of this relationship, Merendon could somehow retire a

portion of its SGD debt by paying True North directly. This was,

we note, not supported by evidence of any agreement between

True North and SGD, or any written confirmation from either SGD

or True North of either the payments towards or corresponding

reductions in Merendon's SGD debt.

ii) Sorenson knew on 19 February 2005 that Brost had "over 9 million

dollars trapped in True North", and Sorenson was not pleased that

Merendon had not "seen that money". Sorenson referred to the

$9 million as "client monies" and commented that Merendon had

seen "replacement money coming out of Arbour". Sorenson's

expectation of receiving $9 million in "client monies" from True

North indicated to us – and we find – that Merendon and Sorenson

had a business relationship with True North. The reference to

replacement money from Arbour also indicated to us – and we find

– that Arbour investor money was being used to replace money

held up in True North. This, in turn, supported Regier's testimony

that True North was basically an account used to route money back

to IFFL investors, and was part of a Ponzi scheme that included

Arbour.

iii) In a handwritten memo to Sorenson, Jack Wolfe detailed a series

of payments made or owing to True North from money received

from Arbour during the period 27 July to 16 September 2004.

iv) Merendon US bank account records showed that Merendon

transferred almost US$3.2 million to True North in 2005.

e) Sorenson's claim that he never spoke to Brost about Merendon's business

transactions with Arbour was not, in all the circumstances, credible:

i) In the 3 July 2004 conversation referred to above Sorenson

expressly discussed Arbour as "Milowe's public company" and

discussed how "Pub Co." could raise money for Brost and how

Brost's structurists would then work for "Pub Co."

ii) Despite any claim to the contrary by Sorenson, he was aware that

Brost was involved in Arbour's raising of money by selling Arbour

Preferred Shares, and that the money from those sales was being

sent to Merendon. Sorenson expressly referred to such facts in

conversations with Hoffman:

A) Almost two months before the first of the Arbour investor

money was sent to Merendon, Sorenson received from

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Hoffman a 13 May 2004 letter that spoke of Arbour using

Brost's salespeople to solicit investors to purchase

"preferred share[s] or something similar" with registered

funds, which funds would then be invested in an entity

called Dorlan and subsequently in SGD, for eventual

distribution to Merendon. Sorenson discussed the Dorlan

concept with Hoffman on 3 July 2004 and again on

22 October 2004.

B) In a 3 July 2004 conversation Sorenson noted that "Milowe

got approval for this public company, yesterday. . . .

[E]verything [got] done last week and got the letter of

approval Friday morning", and that the "tremendous

amount of money backstopped in the pipeline" would

contribute to a "very lucrative month" for Merendon.

C) On 19 October 2004 Sorenson discussed with Hoffman a

conversation Sorenson had with Adair about Brost selling

Arbour Preferred Shares using an offering memorandum

and that "the whole organization of [IFFL] was going to be

converted to basically an agency who's selling preferred

shared in Arbour".

D) In a 19 February 2005 conversation Sorenson again

referred to Brost using an offering memorandum in

connection with Arbour, commented that Merendon was

seeing "replacement money coming out of Arbour", and

said that Brost had asked him what was "the largest amount

of single deposits [Merendon] could accept", which would

be "coming from Arbour", to which Sorenson said he told

Brost "I said make it whatever you [Brost] want, don't

matter."

7) The disclosure provided by Arbour to prospective investors in the Arbour OMs

contained significant defects – misrepresentations – and other deficiencies (as

found above):

a) The defects in this disclosure were serious and pervasive. Morice knew

that the Arbour OMs did not disclose the involvement of Brost or

Sorenson at all, and did not discuss the true extent or manner of

Merendon's involvement. Investors who relied, or could have relied, on

the disclosed information were, or would have been, misled as to what the

Arbour investment entailed and how their money would be used.

b) Brost told Morice that an offering memorandum would be used to sell the

Arbour Preferred Shares, and Morice then worked with Skeith to draft the

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required offering memorandum at, we have found, Brost's direction.

Morice took this direction, even though Brost had no official role with

Arbour. Morice signed each of the Arbour OMs, and, on behalf of

Arbour, falsely certified that they contained no misrepresentations.

Morice was also responsible for filing the Arbour OMs with the

Commission; as found above OM 1 and OM 2 were not so filed.

c) Morice explained that the reason for failing to include disclosure about

Merendon in the Arbour OMs was because Merendon was "very private"

and would not have wanted disclosure about it in the Arbour OMs. We

infer from the evidence that Morice learned of this from either Brost or

Sorenson. Among that evidence is a 19 February 2005 conversation

between Sorenson and Hoffman, in which Sorenson indicated that

structures had been put in place so no one could "find out information that

we didn't want out there in the general public arena", and that, because

Brost was using an offering memorandum to sell Arbour Preferred Shares,

"we have to be a lot more careful as to what information is contained in

any of Milowe's literature".

[994] There was a suggestion by Merendon and Sorenson that Brost carried on a deception

within a deception, funnelling more money to his own ventures than to Merendon or Sorenson

and thus that Merendon and Sorenson were also "victims". Brost may very well have done so,

but any such duplicity would not excuse Merendon or Sorenson for any prohibited acts we find

they engaged in while executing this scheme.

[995] Arbour made loans to and bought assets – not oil and gas properties but unproven and

unvalued technology – from Merendon and Sorenson using money raised from Arbour investors.

All of these transactions involved millions of dollars, little or no due diligence, no valuations,

over-priced assets and back-dated loan agreements. Brost and Sorenson successfully stripped

Arbour, a public company, of its substantial investor-sourced revenue, leaving it with technology

of questionable commercial value and use, with little or no effective means to recover that

money. The Arbour OMs did not disclose any of this and no Arbour investor was ever told that

this was what their money was, in reality, being used to fund. In the end, Arbour was left with

little money to enable it to develop the oil and gas business, and thus generate returns for its

shareholders, in accordance with the plan set out in the Arbour OMs.

[996] In conclusion, we find the evidence in totality clearly establishes that each of the

Respondents engaged in acts that can be variously described as deceit, falsehoods and other

fraudulent means that converted Arbour investor money to the Respondents' benefit: Brost,

IFFL, Sorenson and Merendon received direct monetary rewards; Arbour and Morice apparently

the hope of future economic rewards. Arbour, a public company, was the vehicle used to divert

investor money to Brost/Sorenson Entities without sufficient disclosure to investors.

[997] In summary, we find that each of the Respondents engaged in prohibited acts within the

meaning of Théroux.

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(b) Deprivation

[998] The second step in our analysis of the fraud allegation is to consider whether the

Respondents' prohibited acts found above caused deprivation, whether that be actual loss to

another or the placing of another's economic interests at risk.

[999] There is clear and compelling evidence, and we find, that the Respondents' prohibited

acts found above did cause deprivation – not only placing the economic interests of all investors

in Arbour Preferred Shares at risk, but also causing actual financial loss to many, if not all, of

them. The investor witnesses all sustained financial losses, in some cases devastating losses. It

appears that those who invested in Arbour Preferred Shares have lost some, if not all, of the

money they invested and have failed to receive any, or all, of the promised returns. And

recouping any of these losses seems doubtful.

[1000] Of the approximately $45.5 million raised by Arbour through the sale of the Arbour

Preferred Shares, some $38.6 million made its way to Merendon. The Merendon Financial

Statements indicated that, despite this infusion of investor money, Merendon had no revenue in

2004 and only $9286 in revenue in 2005, and ended 2005 with a deficit of $23 072 103. The

$38.6 million transferred to Merendon is perhaps irretrievably lost – tracing that money, with a

view to its recovery, would undoubtedly be most difficult (time-consuming and costly) and

might well prove fruitless.

[1001] The TRL technology and COREL interest acquired by Arbour from Merendon for that

$38.6 million had yet to be valued or proven commercially viable as at the date of the Merits

Hearing. Merendon itself had paid only $100 and $52 for these interests, respectively. Arbour

appears to have been an inactive company for some time.

[1002] As noted, Morice suggested that his actions did not deprive Arbour investors. He argued

that those who invested in the Arbour Preferred Shares had not relied on the Arbour OMs when

investing but, rather, had relied on – and were deprived through – the information they received

from Brost and IFFL. We disagree with Morice; we find that his prohibited acts did deprive

Arbour investors. The Arbour OMs, with their substantively defective disclosure, were an

integral part of the fraudulent investment scheme in which all of the Respondents participated.

None of the investors in Arbour Preferred Shares were made aware of the true nature of their

investments in Arbour by any of the Respondents in any way, including through the Arbour

OMs. Arbour investors were not made aware that Arbour was a recently reactivated shell

company – a conduit for money going to Merendon – without any realistic prospects or value.

Arbour investors were not told that their money was actually being funnelled directly to

Merendon via loans – at times unsecured and undocumented – in exchange for assets of

uncertain and unproven value, then further distributed to others in the scheme. Arbour investors

were not told that their managed accounts were fictitious and contained no money. There was no

evidence that Arbour investors knew or expected what was planned for and actually happened

with their money. Had they been so informed, we are certain that they would not have purchased

the Arbour Preferred Shares.

[1003] In summary, we find that the Respondents' prohibited acts found above caused

deprivation within the meaning of Théroux.

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(c) Knowledge

Brost and IFFL

[1004] IFFL acted solely through Brost and shared his knowledge.

[1005] As discussed above, Brost was one of the masterminds of the investment scheme

involving Arbour. In furtherance of that scheme, Brost was primarily responsible for the

resurrection of Arbour so that it could operate as an RRSP-investment vehicle. He played an

integral role in setting up the infrastructure to resurrect Arbour, including recruiting two of the

three directors as his nominees (one of whom he appointed as Arbour's president) and procuring

the funding necessary to effect the change in control. Brost and IFFL promoted the sale of

Arbour Preferred Shares and provided the majority of the investor victims from the membership

of IFFL. Brost and IFFL knew that offering the "international" side of the investment providing

"managed accounts" that would generate returns from 20 to 40% per year was a fiction, designed

to lure investors.

[1006] Brost told Morice that an offering memorandum would be used to sell the Arbour

Preferred Shares and told Morice to prepare the required offering memorandum. Brost knew that

any offering memoranda used by Arbour would not provide accurate and complete disclosure of

Arbour's business and the use of proceeds. Brost told Morice that the money raised by Arbour

was to be loaned forthwith to Merendon. Brost told Morice to pursue acquiring the TRL

technology and COREL from Merendon and Sorenson, which involved loaning exorbitant

amounts of money without proper (if any) security or documentation.

[1007] Brost instructed Regier to pick up investor money from Morice at Arbour, then send the

money to Merendon, some accompanied by Brost/Regier Distribution Instructions. Those

directed that portions of the money be sent on to entities controlled by Brost, such as La Conxion

and True North. Brost knew there was never any intention that money raised from Arbour

investors would be used by Arbour to develop a legitimate business. Arbour's business was to

raise money for Brost, Sorenson and Brost/Sorenson Entities. Brost knew that none of the reality

was disclosed to investors; he knew that what was disclosed to investors was false and

misleading.

[1008] The evidence is clear – and we find – that Brost and IFFL (through its guiding mind,

Brost) had the requisite subjective knowledge of the prohibited acts.

[1009] We also have no doubt – and we find – that Brost and IFFL were fully aware that their

prohibited acts within this scheme not only would put investor money at risk but also would

deprive investors of their money. Financial losses to Arbour investors were the reasonably

foreseeable result of sending the investment proceeds to Merendon. Brost and IFFL were aware

that Merendon was an entity with the majority of its holdings offshore, virtually no income, and

operating deficits in the parent and most of the subsidiaries. Brost and IFFL were also aware that

Arbour investor money diverted to Merendon and beyond would essentially be exchanged for

assets of unproven and uncertain value. Financial losses (in at least some cases devastating

losses) to Arbour investors have become, with the passage of time, no longer a risk but a fact,

and recouping any of these losses seems doubtful.

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[1010] In conclusion, we find from the totality of the evidence that Brost and IFFL also had the

requisite subjective knowledge that they put investors' pecuniary interests at risk through their

"prohibited acts".

Sorenson and Merendon

[1011] Merendon acted solely through Sorenson and shared his knowledge.

[1012] The evidence establishes that Sorenson acted in concert with Brost as the other

mastermind of the investment scheme involving Arbour and the sale of Arbour Preferred Shares.

Sorenson had some involvement in securing Arbour and resurrecting it as an investment vehicle

used by Brost to access IFFL members' RRSP money. We find that Sorenson ensured the

appointment of Wigmore, his long-time associate, as Sorenson's nominee director on the Arbour

board of directors. Sorenson knew what was happening with Arbour – we have concluded that

he knew Brost and IFFL were going to raise money through the sale of Arbour Preferred Shares

using an offering memorandum or memoranda, commencing in 2004. Sorenson also knew that

Merendon and he were going to be the main beneficiaries of the money that he would share with

connected entities such as True North, La Conxion and SGD.

[1013] Even though Sorenson was not involved in drafting the Arbour OMs or may have never

seen or read one, we are convinced he knew that whatever Arbour was disclosing to investors

who purchased Arbour Preferred Shares would not completely and accurately describe the true

use that was going to be made of their money. He knew Arbour investors would not be told their

money was going to be siphoned off – diverted – to Merendon unsecured (or both unsecured and

undocumented). He also knew Arbour investors would not be told that Merendon would then

send a portion of that money back to entities connected to Brost, whose organization IFFL had

recommended they purchase Arbour Preferred Shares in the first instance. Sorenson also knew

Arbour investors would not be told that Merendon would sell Arbour unproven and unvalued

technology for millions of dollars, leaving Arbour and its investors with little money and likely

worthless technology. As with Brost, Sorenson knew there was never any intention that money

raised from Arbour investors would be used by Arbour to develop a legitimate business;

Arbour's business was to raise money for Brost and Sorenson and Brost/Sorenson Entities.

[1014] Indicative of the depth of Sorenson's knowledge and state of mind was a 26 April 2006

conversation he had with Hoffman:

Sorenson You've heard me say it before, I'll say it again, you know we have tremendous

responsibility for a tremendous amount of people for a tremendous amount of

accounts. It [doesn't] matter whether Owen Hoffman [likes] Gary Sorenson or

doesn't, you were involved you may not be involved today but you were

involved. It doesn't matter whether Milowe Brost likes Steve Kendall or Chris

Houston or anybody you understand what I mean? Every single f**king one of

us has got to face the truth.

Hoffman We're tied with an umbilical cord--

Sorenson Truth is united we stand, we separate I start going to f**king agencies and

saying that f**king Owen Hoffman is a f**king a**hole, you know. They don't

give a f**k if you're an a**hole, they don't care. They want the package and

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you're going down with me and I'm going down with you and you know we're

all going to be on a f**king exercise yard together.

Hoffman Good visual. Did--that's why I've been following Milowe's trials and

tribulations with the [Commission].

Sorenson That's why we have to clean up SGD . . . .

[1015] The evidence is clear – and we find – that Sorenson and Merendon were knowledgeable,

active and essential participants in an almost $46 million fraud involving the sale of Arbour

Preferred Shares. The evidence is clear – and we find – that Sorenson and Merendon (through its

directing mind, Sorenson) had the requisite subjective knowledge of the prohibited acts.

[1016] We also have no doubt – and we find – that Sorenson and Merendon were fully aware

that their prohibited acts within this scheme not only would put Arbour investor money at risk

but also would deprive investors of their money. Financial losses to Arbour investors were the

reasonably foreseeable result of sending the investment proceeds to Merendon. Sorenson and

Merendon were all too aware that Merendon was an entity with the majority of its holdings

offshore, virtually no income, and operating deficits in the parent and most of the subsidiaries.

Sorenson and Merendon also knew that the TRL technology they had sold to Arbour was of

questionable value – certainly not the value paid by Arbour. The TRL technology and COREL

were highly unlikely to generate significant revenue for Arbour and its investors (and, if such

revenue were generated, Sorenson and Merendon retained a continuing interest). The course of

conduct undertaken by Sorenson and Merendon placed Arbour investor money at serious risk of

loss. As noted above, financial losses to Arbour investors have become a fact, and recouping

any of these losses seems doubtful.

[1017] In conclusion, we find from the totality of the evidence that Sorenson and Merendon also

had the requisite subjective knowledge that they put investors' pecuniary interests at risk through

their "prohibited acts".

Arbour and Morice

[1018] Morice and Arbour were, as Staff phrased it "key cogs in the fraud machinery". Arbour

acted under the direction of Morice and Brost and, therefore, shared their knowledge.

[1019] While it is possible that Morice in the beginning may not have known what Brost and

Sorenson were intending, we believe that Morice's suspicions ought have been aroused very soon

after assuming the role of president of Arbour. He knew or should have known almost

immediately that something improper was happening and that Arbour was being used for an

improper purpose. In our view, Morice was in a good position to detect what was true and what

was not. He knew or should have known that taking instructions from Brost, an individual

external to Arbour, was highly unusual. Morice also knew or should have known that Brost's

particular directions were not commercially prudent or reasonable – certainly not in the best

interests of Arbour and its shareholders.

[1020] Morice knew that massive amounts of IFFL investor money were flowing into Arbour, as

predicted by Brost. Morice admitted that he knew this was unusually successful fundraising, as

it clearly was, particularly for a recently reactivated shell company with no proven management

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team. He was told by Brost that the overall plan was to target IFFL members' RRSP money and

move that money through Arbour to obtain "managed accounts" offshore backstopped by

Merendon, a supposed $2 billion organization. In the Morice Interview he told Staff:

Q Your investors would have desired to invest in Evergreen Trust over a, a chartered bank?

A Yes.

Q Why do you think that they would prefer, did they tell you that? How was that

communicated to you by the investors?

A Well, I mean, their objective was to get an account offshore that they could manage, that

was the, you know, not having been a member, I'm saying that was my understanding,

and that -- well, just to start from the beginning, virtually all or certainly over 90 percent

of funds raised came out of our registered retirement savings plan.

So the people involved normally had a, an unsatisfactory experience with formal

investment counsel[l]ing, and were determined to make their own decisions on how their

money would be placed, and so the option of, of utilizing the RRSP was to cash it in, at

least offshore, using it offshore was to cash it in, pay 35 percent tax and take the net

offshore.

Arbour, the initial strategy was to make a qualified investment in Arbour, park

the money offshore, have what was represented to me to be a $2 billion organization

offshore backstopping Arbour to go get some valuable oil and gas properties, and that

was the commitment made to me when I joined Arbour.

Q That commitment, who was that made to you by?

A That would have been Milowe.

Q So did -- when this company was set up, did Milowe Brost basically tell you where the

money was supposed to go, what you were supposed to do with it once it was raised?

A Well, it, it, it was a structure to move the money offshore, so there was an agreement that

it would be parked short term, but there was also a commitment that it would be available

to make, you know, deals that would allow Arbour to be a solid vibrant oil and gas

company.

Q So my understanding, then, is that the investors, through IFFL, wanted to make an

investment offshore, and Arbour was the vehicle to do this. Originally you were planning

to put the money in this Evergreen Trust until you located some oil and gas investments?

A Right.

Q Only instead, the money went to [Merendon] and was parked there?

A Yeah, I mean, they had a structure of moving money internationally, you know, it's

almost impossible to do today, but back then they had been doing it for five or six years,

so, you know, they had [a] mechanism to do it that, you know, was convenient, maybe

too convenient.

[1021] Morice knew what Arbour was doing, and he knew what was said and not said in the

Arbour OMs. We find that Morice should have known – and at some point must have known –

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that the disclosure in the Arbour OMs was false and misleading. Morice knew that Arbour was

selling preferred shares, not offshore managed accounts. Morice knew or should have known

that representations in the Arbour OMs were false. Yet he did not question any of this, or even

seek the advice of his company's lawyer Skeith. To rationalize not disclosing the $10 Million

Loan to Merendon, Morice said that he believed the $10 Million Loan was "short term" and

could be recalled at any time, with Sorenson committed to using his influence and contacts to

arrange international oil and gas deals for Arbour. Such an explanation defies belief: the Letter

of Intent called for a 10-year term; there was no mechanism to force the return of the money,

which was quickly flowing offshore; and Sorenson was involved in junior mining activities, not

international oil and gas ventures. Sorenson himself said that he had made no such commitment,

nor was the loan to be a short-term obligation (it was destined to be used as working capital).

Morice also knew that no disclosure was made of the continuing unsecured and undocumented

payments made from and raised under OM 2 and OM 3, although Arbour disclosed it had made

the $10 Million Loan. Morice and Arbour were fully aware that the majority of the money raised

from the sale of Arbour Preferred Shares was diverted to Merendon.

[1022] Morice, on behalf of Arbour, advanced millions of dollars to Merendon on what he knew

or ought to have known could not possibly be commercially prudent or reasonable conditions.

Morice, on behalf of Arbour, purchased for millions of dollars technology on what he knew or

ought to have known could not possibly be commercially prudent or reasonable conditions. In

respect of the TRL and COREL transactions, little (if any) due diligence was completed on

Merendon and no valuations were in hand before Morice agreed to Arbour committing to

exorbitant purchase prices.

[1023] In conclusion, when viewed in its totality, the evidence is clear – and we find – that

Morice and Arbour (through its directing minds, Morice and Brost) knew or reasonably ought to

have known that Morice and Arbour were being used to divert to Merendon money raised

through the sale of Arbour Preferred Shares and that such diversion was implemented for an

improper purpose. The evidence is clear – and we find – that Morice and Arbour (through its

directing minds, Morice and Brost) had the requisite subjective knowledge of the prohibited acts.

[1024] We also have no doubt, and we find, that Arbour and Morice should have been fully

aware – and at some point were fully aware – that their prohibited acts within this scheme not

only would put Arbour investor money at risk but also would deprive investors of their money.

Morice was fully aware of the risks of sending money to Merendon, an entity with the majority

of its holdings offshore. He told Staff that any security given by Merendon on the transactions

would effectively have been useless, given that the majority of its assets were located in

countries like Honduras, Peru, Ecuador and Venezuela. There was no evidence that Morice and

Arbour understood the commercial viability of the technology Arbour was buying; there is every

reason to conclude that they did not. The course of conduct undertaken by Arbour and Morice,

who should have been acting in the best interests of Arbour and its shareholders, placed Arbour

investor money at serious risk of loss. As noted above, financial losses to Arbour investors have

become a fact, and recouping any of these losses seems doubtful.

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[1025] In conclusion, we find from the totality of the evidence that Arbour and Morice also had

the requisite subjective knowledge that they put investors' pecuniary interests at risk through

their "prohibited acts".

(d) Conclusions on Fraud

[1026] The totality of the evidence clearly establishes, and we find, that the Respondents

perpetrated a deliberately complex, coordinated, far-reaching and massive – almost $46 million –

fraudulent investment scheme, with the sale of Arbour Preferred Shares through the Arbour OMs

at its centre. All of the Respondents were separate but necessary cogs in the fraud machinery:

Brost used IFFL as the marketing machine that provided hundreds of investor victims; Sorenson

used Merendon to provide the illusion that an arm's-length enterprise was conducting normal-

course business transactions with Arbour in an attempt to justify to any inquiring auditor or

regulator the flow of money out of the public company; Arbour was resurrected to become the

much desired RRSP-eligible investment vehicle; and Morice was the unquestioning, willing and

compliant public company insider who acquiesced in and embraced the scheme, thus facilitating

the diversion of investor money from Arbour to Merendon and then on to Brost/Sorenson

Entities.

[1027] We find from the totality of the evidence, including the more specific aspects discussed

above, that the Respondents knowingly deceived investors, and were fully aware that their

deceit, falsehoods and other fraudulent means could (in fact were intended to) entice investors to

purchase Arbour Preferred Shares and that a foreseeable – indeed, likely – consequence would

be the risk of financial deprivation or actual deprivation for those investors.

[1028] We therefore find that the Respondents engaged in a course of conduct that perpetrated a

fraud on investors.

F. Conduct Contrary to the Public Interest

1. General

[1029] We have set out our reasons for upholding Staff's allegations that the Respondents

contravened Alberta securities laws in several respects. We now turn to Staff's allegation that, in

engaging in such misconduct, the Respondents also acted contrary to the public interest.

2. Illegal Trades and Distributions

[1030] We have found that Arbour, Morice, Brost and IFFL engaged in illegal trades in and

distributions of Arbour Preferred Shares by trading in and distributing those shares without

registration and a prospectus or exemptions from the registration and prospectus requirements.

[1031] The registration and prospectus requirements are among the most fundamental of

protections offered by Alberta securities laws. As such, they are crucial to the Commission's

mandate to protect investors (by giving them the opportunity to make informed investment

decisions) and to foster a fair and efficient capital market.

[1032] The registration requirement is intended to ensure that salespeople with whom

prospective investors interact show a certain degree of proficiency, have appropriate ethical

standards, and will learn and consider each investor's investment objectives, risk tolerance and

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financial situation. The prospectus, as a comprehensive disclosure document, is intended to

ensure that prospective investors learn information about the investment being offered (including

its risks and benefits) and the entity offering it, so that the investors are well positioned to make

informed investment decisions.

[1033] In circumstances in which these protections are considered unnecessary, securities

regulatory authorities allow exemptions from the registration and prospectus requirements. The

availability of this "exempt market" is important in Alberta and elsewhere, as it enables

companies to raise capital with a timely and less expensive alternative to a prospectus and allows

investors to participate in certain opportunities, while still providing the level of investor

protection appropriate in the particular circumstances.

[1034] Investors who do not receive the fundamental protections afforded by a registered

salesperson's involvement and a prospectus (and are not otherwise protected and therefore able to

invest under an exemption) are at risk of the harm that may result from ill-informed and

unsuitable securities investments. Such a result harms not only those particular investors, but

also the confidence of those and other investors in our capital market. Abuses of the exempt

market system also may make it more difficult and expensive for issuers legitimately using

exemptions to find investors, thus causing further harm to our capital market and confidence in

that market.

[1035] We conclude that individual investors and the Alberta capital market in general were

harmed by the illegal trades in and distributions of Arbour Preferred Shares by Arbour, Morice,

Brost and IFFL. We find that Arbour, Morice, Brost and IFFL all exhibited a serious disregard

for the basic principles of Alberta securities laws by engaging in such illegal conduct.

[1036] Therefore, we find that the illegal trades in and distributions of Arbour Preferred Shares

by Arbour, Morice, Brost and IFFL were also clearly contrary to the public interest.

3. Misrepresentations in Offering Memoranda

[1037] We have already commented on the importance of the exempt market in Alberta. The

offering memorandum is a valuable tool in the exempt market system. It allows issuers a timely

and less expensive alternative to a vetted prospectus, yet still provides prospective investors with

material information of assistance in making informed investment decisions.

[1038] We have concluded that the Arbour OMs were riddled with problems, many of which

rose to the level of misrepresentations. It would be unreasonable to expect perfection in an

offering memorandum; however, the Arbour OMs were completely unacceptable. Prospective

investors would not have been – and were not – assisted in making informed investment

decisions by the disclosure in the Arbour OMs.

[1039] As noted, the misuse of exemptions – and the corresponding risk to investors (whether

potential or actual) – has implications for the vibrancy of the exempt market and confidence in

the Alberta capital market as a whole.

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[1040] Consequently, we find that the misrepresentations, or materially untrue or misleading (or

both) statements, in the Arbour OMs – which we have found Arbour and Morice made in breach

of section 92(4.1) of the Act (and its predecessor) – also constituted conduct contrary to the

public interest by Arbour and Morice.

4. Unregistered Advising

[1041] The advisor registration requirements are also an important component of Alberta

securities laws. Registered advisors, who meet certain educational and ethical standards, are

better able to determine the investment needs and objectives of, and the suitability of proposed

investment products for, prospective investors. Thus, prospective investors who rely on a

registered advisor's investment advice are assisted in making informed investment decisions.

[1042] We have found that Brost and IFFL engaged in unregistered advising in securities. They

advised prospective investors to invest in the highly questionable Arbour Preferred Shares,

among other securities. These investments were clearly not suitable for any prospective

investors, even had Brost and IFFL considered each investor's investment objectives, risk

tolerance and financial situation. Although certain of the investor witnesses have received some

money back from the investments they made on advice from Brost, IFFL or both, the majority of

investors apparently have not received, and will not receive, money back from such investments.

The total amount raised through the sale of the Arbour Preferred Shares was approximately

$45.5 million, with the majority of the purchasers being IFFL members. We received no

evidence as to the amounts raised by IFFL from sales of other Brost-connected entities; however,

according to Sorenson, IFFL raised some $97 million in 2006. Brost's organization IFFL was a

massive enterprise, created and operated not in investors' best interests but to further Brost's and

IFFL's interests. Through this serious misconduct, Brost and IFFL exposed the investors they

advised to considerable risk and caused actual and significant financial harm to, it seems, many

of them. Their unregistered advising also damaged the reputation of, and impaired confidence

in, the Alberta capital market.

[1043] Because Brost and IFFL had entered into the Brost Undertaking and the IFFL

Undertaking, respectively, we conclude that they were well aware of the existence, scope and

importance of Alberta securities laws prohibiting unregistered advising. Exacerbating Brost's

and IFFL's misconduct was their use of documents and presentations in an attempt to obfuscate

the fact that they were advising in securities.

[1044] Accordingly, we find that Brost's and IFFL's unregistered advising was also contrary to

the public interest.

5. Breaching an Undertaking or Commission Order (or Both)

[1045] Even without sections 93.1 and 93.2 of the Act (which came into force after some of the

misconduct here had occurred), we expect – and demand – compliance from market participants

giving an undertaking to the Commission or being the subject of a Commission order.

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[1046] Brost's and IFFL's defiance of the Brost Undertaking and the IFFL Undertaking,

respectively – and the accompanying Undertaking Order – indicates to us that they have no

respect for the Commission and its processes or, more generally, for Alberta securities laws.

This is an extremely serious matter, as respect for Alberta securities laws and those who enforce

them is a critical element of our capital market system. We cannot, and will not, tolerate such

disdain for Alberta securities laws and the investors we seek to protect.

[1047] Therefore, we find that Brost's and IFFL's flaunting of the Brost Undertaking and the

IFFL Undertaking, respectively, and their contempt for the Undertaking Order also constituted

conduct contrary to the public interest.

6. Fraud

[1048] Fraud is "one of the most egregious securities regulatory violations" and is both "an

affront to the individual investors directly targeted" and something that "decreases confidence in

the fairness and efficiency of the entire capital market system" (Capital Alternatives at para. 308,

citing Johnston & Rockwell, Canadian Securities Regulation, 4th ed. at 420).

[1049] We have concluded that each of the Respondents engaged in fraudulent conduct. In our

view, fraud, by its very nature, will always be contrary to the public interest. That position is

strengthened in the circumstances here when we consider the many layers of complexity of the

fraud involving the Arbour Preferred Shares and the use of the proceeds from the sale of those

shares.

[1050] In addition to placing specific investors at risk and denying them the opportunity to make

informed investment decisions, the Respondents' fraudulent actions seriously impaired the

reputation of the Alberta capital market and investor confidence in that market.

[1051] There is no question that each of the Respondents' fraudulent conduct was also contrary

to the public interest, and we so find.

[1052] We have found that:


in Arbour Preferred Shares without registration or exemptions;


Preferred Shares without a prospectus or exemptions;

VI. CONCLUSION AND NEXT STEPS

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Brost and IFFL breached section 75(1)(b)(i) by acting as advisors without



statements in the Arbour OMs that they knew or reasonably ought to have known

were untrue or misleading;

Brost and IFFL breached sections 93.2 and 93.1 by failing to comply with the

Brost Undertaking and the IFFL Undertaking, respectively, and the Undertaking

Order accepting those undertakings;




[1053] It remains to be determined what, if any, orders for sanctions and costs ought to be made

against the Respondents. This proceeding will thus move to the Sanction Hearing for that

purpose.

[1054] We direct that Staff provide to the panel (through the Commission Registrar) and to the

Respondents any written submissions that Staff wish to make on the issue of appropriate orders

by 16:00 on Wednesday 16 May 2012.

[1055] The Respondents may each reply in writing to Staff's submissions. Any such written

submissions must be provided to the panel (through the Registrar), to Staff and to each other

Respondent by 16:00 on Wednesday 4 July 2012.

[1056] Staff may reply in writing to any such written submissions by the Respondents, such

reply to be provided to the panel (through the Registrar) and to the Respondents by 16:00 on

Monday 23 July 2012.

[1057] If any party wishes to make supplementary oral submissions or to adduce evidence on the

issue of appropriate orders, the panel will hold an in-person hearing session on Wednesday

5 September 2012 commencing at 9:00. A party requesting such an in-person hearing session

must advise the Registrar by 16:00 on Monday 30 July 2012, indicating whether that party

proposes to adduce evidence (via witnesses or otherwise) and the amount of hearing time that

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party expects to require. Even if no party requests such an in-person hearing session, one may be

required by the panel. The Registrar will inform the parties as to whether an in-person hearing

session will proceed.

30 March 2012

For the Commission:

"original signed by"

Glenda A. Campbell, QC


Neil W. Murphy


Karen A. Prentice, QC

Citation: Arbour Energy Inc., Re, 2012 ABASC 131 Date: 20120330 … Decisions... · 2019. 1....

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Transcript of Citation: Arbour Energy Inc., Re, 2012 ABASC 131 Date: 20120330 … Decisions... · 2019. 1....