IN THE MATTER OF: THE SECURITIES ACT - and-IN THE MATTER OF: WILLIAM MACKAY NOTICE OF APPEAL OF WILLlAM MACKA Y AIKINS, MACAULA Y & THORVALDSON LLP Barristers and Sol ieitors 30ยท h Floor - 360 Main Street Winnipeg, MB R3C 4G1 THOR HANSELL Phone No. (204) 957-4694 Fax No. (204) 957-4270 File No. 1103905
T AKE NOTICE T HAT. pursuant to section 29( 1) of The Securities Act of Manitoba (the "!l et"), William MacKay hereby appea ls the dec is ion o f the Direc tor o f T he Ma nitoba Securit ies Commiss ion made Jul y 9, 20 12, which deni ed Wi ll iam MacKay's applicati on fo r registrati on under the A cl. ON THE A PPEA L the Commi ss io n w ill be asked to se t aside the decision or the Director (the "Decision"), on gro unds which include the fo llowing : I . The Decision is contrary to the law, the evidence and the weight of evidence; 2. Numerous find ings made by the Director are unreasonable, unfair and un supported by th e ev idence, parti cul ars of w hi ch include: a) With respect to Parking Paystati ons Jnternati onal Inc. (" PPJ") and the Employment Standards Di vision ("ESD"); i) There we re in fac t two orders issued by the ESD, one aga inst PPJ and one against Mr. MacKay , and th e ev idence indicates the one naming M r. MacKay personally may never have been properl y served o n him . ii) Contrary to the D irector's fi nding, Mr. Mac Kay did produce a copy of hi s written letter of res ignation as a director of PPJ to the Comm iss ion. The Director 's find ing that Mr. MacKay's res ignati on was a "convenient way to attempt to avoid responsibility" is unreasonable and unsupportable . M r. MacKay continued to be shown as a d irec to r of PPI in the records of the Companies Offi ce onl y because the other directors failed to fi le a Not ice o f Change of Di rector as they ought to have do ne.
iii) Contrary to the Director's finding , there is no inconsistency between Mr. MacKay saying he decided to resign as a director of PPJ and statements he made on his application . Mr. MacKay has consistentl y said he was asked by a board of adviso rs of PPl (not its Board of Directors) to turn over hi s management role in the company to certain other individuals, which he did. Although Mr. Mackay was elected as a director by the shareholders, he decided to resign and limit his involvement in the company to thal of shareholder. It was Mr. MacKay's decision to make. These events do not support the Director's conclusion that Mr. MacKay placed his own interesls ahead of olhers. iv) The legal opi nion o btained by Mr. Mac Kay, part of which is quoted by the Director, indicated that Mr. MacKay had no recourse agai nst ESD to have the judgment it had ob tained against him set aside. T hi s lega l opinion did not indicate Mr. MacKay had no recourse against individuals who had made false or improper claims, as the Director appears to have assumed. v) Furthermore, Mr. MacKay ' s approaches to indi viduals who had made fa lse or improper claims took place be fore he obtained the lega l opinion quoted by the Director, not after as the Director appears to have assumed. These approaches to former employees of PP I were made in keeping with legal advice from Mr. MacKay's prev ious lawye r. The MSC was inform ed such steps were being taken and made no objec ti o n or suggested they were improper at the time. vi) Mr. MacKay had no reason to believe he was still li s ted as a Director of PPI at the time it ceased ope rations, as he had resigned months earli er, so cou ld not have been motivated by a desire to avoid liability to for mer PPJ employees when he
hired them. Mr. MacKay should not be criticized for hiring those former employees, who would otherwise have becn out of work. vii) Mr. MacKay was not involved in the day to day affairs of Pl'l after his res ignation, other than as a shareholder, and the fact PPJ's former landlord contacted Mr. MacKay or that he took custody of some PPI 's records when the true directors of PPI abd icated their responsibiliti es is not evidence to the contrary. vi ii) Mr. MacKay resolved matters with ESD. It is hardly su rprising that the fact this meant that some people who were not entitled to any money would nevertheless be paid would be upsetting to Mr. MacKay. b) ProCorma: i) The two subscripti ons were in process prior to the meeting with the Director on January 4, 20 I 0, and involved Accredited Investors, such that there was no need lor an exemption for them ; iiJ The Accredited Investors in question, one of whom was Me MacKay himse lf, were fully informed of and aware of the nature of thi s in vestment and its risks; iii) The fact these investors pooled together to make larger singlc investments was done to obtain a higher rate of return, and had noth ing to do with avoiding any directive of the Director. An exemption from the Director was not required for these in vestors.
c) Donations Canada: i) The Director was provided with ev idence in writing from the lawyer who issued the lega l opinion to Mr. MacKay, indicating that the opinion applied spec ificall y to the Donations Canada Program, contrary to the Director' s findings; ii ) Signillcant due diligence was performed 111 respect of this Program, which included two legal op inions, one provided directly to the clients and the other w hi ch Mr. MacKay obtained himself; iii) The Program was imple mented in a manner consistent with that se t out in the Schedule to the lega l opin ion, such that there is no reasonable basis to suggest the legal opinion in question did not apply to the Program. d) SMART Notes: i) The timing of the receipt of funds from investors was related to potential tax advantages if the investment cou ld be completed prior to year end, not because Mr. MacKay placed the possibility of obtaining a commiss ion ahead of ensuring the in vestment was appropriate; ii) The clients were aware that due diligence had not been competed when the fund s were advanced, which were held in a lawyer's trust acco unt and were never at risk: iii) The investment did not proceed when information being sought by Mr. MacKay and hi s sons in the due diligence process was not provided in a timel y fashion , and the Commission made inquiries about the product; iv) All funds were returned and Mr. MacKay did not receive any commi ssion.
3. There was no reasonable basi s to conclude that Mr. MacKay lacks integrity, or has or would place his own interests ahead of clients if registered, or is unsuitable for registration. In fact, there is substantia l ev idence to the contrary. 4. Such further and other grounds as counsel may advise and the Comm ission may permit. THOR HANSELL, of the firm Aikins, MacA ulay & Thorvaldson LLP 30 'h Floor - 360 Main Street Winnipeg, MB R3C 4G I Lawyers for Mr. William MacKay TO: Mr. Donald Murray, Chair of the Manitoba Securities Commission AND TO: Mr. Douglas Brown, Director - Legal, The Manitoba Securities Commiss ion
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