[ 91] Consequently, I do not accept Jaffrey’s position that there
is no “reasonable possibility” that the court could infer that the
burden of proof under s. 138.4(1) could be met.
ii. The Note to Reader
[ 92] Jaffrey further relies on the “Note to Reader” contained as
part of Jaffrey’s certification for the Q3 2016 Disclosure, to submit that a court could not infer Jaffrey knew that the Turcolt
Investment was unauthorized as of the date of the December
2016 Press Release. I do not agree.
[ 93] In his officer’s certificate delivered with the Q3 2016 Disclosure, Jaffrey certified that the Q3 2016 Disclosure contained
“no misrepresentations”, and “the interim filings do not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated or that is necessary to make a statement
not misleading in light of the circumstances under which it was
[ 94] The above certification is unambiguous.
[ 95] The Note to Reader states:
In contrast to the certificate required for non-venture issuers under National
Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim
Filings (NI 52-109), this Venture Issuer Basic Certificate does not include
representations relating to the establishment and maintenance of disclosure
controls and procedures (DC&P) and internal control over financial reporting
(ICFR) as defined in NI 52-109. In particular, the certifying officers filing this
certificate are not making any representations relating to the establishment
and maintenance of
( i) controls and other procedures designed to provide reasonable
assurance that information required to be disclosed by the issuer in
its annual filings, interim filings or other reports filed or submitted
under securities legislation is recorded, processed, summarized and
reported within the time periods specified in securities legislation;
( ii) a process to provide reasonable assurance regarding the reliability
of financial reporting and the preparation of financial statements
for external purposes in accordance with the issuer’s GAAP.
The issuer’s certifying officers are responsible for ensuring that processes are
in place to provide them with sufficient knowledge to support the representations they are making in this certificate. Investors should be aware that
inherent limitations on the ability of certifying officers of a venture issuer to
design and implement on a cost effective basis DC&P and ICFR as defined in
NI 52- 109 may result in additional risks to the quality, reliability, transparency and timeliness of interim and annual filings and other reports provided
under securities legislation.
[ 96] Consequently, the Note to Reader only advises the reader that
the “controls”, “procedures” and “processes” for matters outside the