Assessing Economic Loss in $47.5 Million Regulatory Litigation Damages Claim

In Herner v. Mutual Fund Dealers Association of Canada et al., 2026 ONSC 4889, Senior Managing Director Bradley Heys demonstrated the value of rigorous, independent damages analysis in complex litigation.

The plaintiff, a mutual fund dealing representative, sued the Mutual Fund Dealers Association (MFDA) and the Ontario Securities Commission (OSC) for the intentional torts of conspiracy, abuse of process, misfeasance in public office, and intentional interference with economic relations. The claims arose from an unsuccessful MFDA enforcement proceeding and the OSC’s handling of two applications for the reactivation of his registration. The plaintiff sought $47.5 million in damages for past and future loss of income and loss on his sale of his book of business, general damages of $5 million, and punitive damages of $1 million.

Although the court ultimately dismissed the plaintiff’s claims and found the defendants not liable, it gave meaningful weight to Mr. Heys’ evidence on economic loss. In a case involving a $47.5 million damages claim, the court relied on Mr. Heys’ disciplined approach to testing assumptions, measuring loss, and grounding opinions in the record.

The court expressly noted that cross-examination did not undermine Mr. Heys’ expertise or neutrality. That is a notable endorsement in a heavily contested trial featuring multiple expert witnesses and divergent damages theories. Mr. Heys’ evidence helped the court focus on the core economic questions: whether any loss was actually caused by the alleged conduct, whether the plaintiff’s assumptions were supportable, and whether future loss projections were realistic rather than speculative.

The decision is especially significant because the court did not accept the plaintiff expert’s damages model. Justice Bordin rejected key aspects of the plaintiff’s expert evidence, including aggressive growth assumptions and an inflated view of future losses. By contrast, the court accepted important components of the defense-side damages analysis advanced by Mr. Heys, including his more measured methodology and criticism of unsupported assumptions. The court stated that the approach of Mr. Heys and another defense expert was more appropriate than the plaintiff expert’s far more aggressive assumptions.

The case underscores Mr. Heys’ strength as a damages expert in high-stakes disputes: clear thinking, analytical restraint, and credibility under scrutiny. Even in cases in which liability is not established, damages evidence can play a decisive role in shaping the court’s view of causation, quantum, and the reliability of the parties’ positions. In Herner, Mr. Heys’ work helped the court separate advocacy from economics and reject a substantial claim built on assumptions the court was not prepared to accept.