Wintercorn v. Global Learning – Ontario Supreme Court finds that a tax shelter tax opinion did not generate liability because it was expressly provided only to the promoter

Various of the defendants, principally, Cassels, Fasken and Evans, brought a motion to dismiss the class action brought against them by the donors to a charitable gifting tax shelter in which they had been involved: Cassels gave a tax opinion to the now-defunct promoter (“GLGI”); Fasken did the corporate legal work; and Evans provided a valuation regarding the donated software licences.

Morgan J first found that the class action had been brought within the two-year Ontario limitation period, given that it was launched 23 months after Mariano found that this tax shelter was a sham.

Before dismissing the claim against Cassels, Morgan J stated:

[N]ot only did Cassels refrain from expressing any undertaking to advise class members, but it expressly limited the scope of its undertaking to its client, GLGI. The tax opinion on its face states that Cassels is only providing the opinion to allow GLGI to structure the gift program … .

The express limitations on Cassels’ undertaking, which limits its proximity to GLGI alone, effectively negates any prospect of a duty of care owing by Cassels to the class members.

The claim against Fasken also was dismissed, as its retainer was only to provide certain corporate commercial legal services to GLGI and the taxpayers participating in the GLGI program were required to sign a disclaimer of any reliance on GLGI's professional advisors, which included Fasken.

There was a “strong triable issue” as to the liability of Evans regarding the valuation report on the licences prepared by it and provided to CRA by GLGI to support the taxpayers in their dealings with CRA. Morgan J stated :

It was reasonably foreseeable – indeed, patently obvious - to Evans and everyone else involved that the participants in the GLGI program would rely on its report in back-stopping the CRA challenges. …

Having authorized external reliance, all of the hallmarks of owing a duty of care toward class members are present.

Neal Armstrong. Summary of Wintercorn v. Global Learning Group Inc., 2026 ONSC 2728 under General Concepts – Negligence.