Picture
Picture
Name and Title
Marlin J. Horst
Partner
Partner
Year of Call

1989 (Ontario)
1997 (Bermuda)

Memberships
  • Canadian Bar Association
  • Ontario Bar Association
  • American Bar Association
Publications
Description

Marlin Horst head shotA defrauded corporate lender who unsuccessfully tried to sue the government to cover $1.8 million in losses was always facing an uphill struggle, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com.

A better strategy for the lender would have been to conduct more stringent due diligence at the outset rather than suing the Crown after the fact, says Horst, partner with Shibley Righton LLP.

The Ontario Court of Appeal matter involved a lender who advanced $1.8 million in mortgages to a man on the grounds he was the sole owner and officer of a company. The loans were advanced after the lender checked the Ministry of Government and Consumer Services' corporate registry and found the man was listed as a director and officer.

However, it transpired that this was a complete fabrication and the man had merely filed a change order to the registration with no authority whatsoever.

The appellant argued that the ministry owed a duty of care to reasonably ensure the accuracy and reliability of the information it collected, maintained and disseminated for a fee when it knew or ought to have known that the appellant would rely upon such information.  

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-11-26
Description

Marlin Horst head shotIt can be difficult for family business partners to keep emotions separate from management and operations, particularly when one generation is passing control off to the next, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com.

“Family business disputes are not as uncommon as people think, especially when you have a strong founder passing off an empire to the next generation,” says Horst, a partner with Shibley Righton LLP.

Earlier this month, an Ontario business magnate and his wife launched a lawsuit claiming their daughter, two grandchildren and others are allegedly mismanaging the family's assets and trust funds. The Canadian Press reports the suit, which has not been proven in court, seeks more than $500 million in damages.

In their statement of claim, the parents accuse their daughter and others of allegedly "having undertaken a series of covert and unlawful actions" that have been contrary to the best interests of other family members. As well, they claim their daughter led an extravagant lifestyle that has allegedly drained the company in excess of $70 million.

His daughter has denied the allegations stating, “Family relationships within a business can be challenging. My children and I love my father. However, his allegations are untrue and we will be responding formally to the statement of claim in the normal course of the court process,” the newswire reports.

Horst says a common point of friction in some companies is when elders back out to let the next generation run the family business.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-10-29
Description

Marlin Horst head shotA recent Ontario Court of Appeal ruling on interest disclosure is likely a relief to lenders as it confirms that a small violation of s. 4 of the Interest Act will not impact all interest payable under a loan agreement, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com.

The case centred around a number of loans made by one party to another — although the respondent party defaulted, it disputed the amount of interest owing.

Specifically, the respondent claimed that term in the loan agreement, requiring payment of a .003 per cent discount fee of the outstanding loans on the repayment date and every day thereafter while it remains outstanding, failed to comply with s. 4 of the Interest Act.

The Act requires that any written agreement for the payment of interest at a rate or percentage per day, week, month or any period less than one year must contain “an express statement of the yearly rate or percentage of interest to which the other rate or percentage is equivalent.”

“Section 4 provides that where an agreement fails to comply with this requirement, ‘no interest exceeding the rate or percentage of five per cent per annum shall be chargeable,’” notes the court.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-09-25
Description

Marlin Horst head shotA report that suggests the federal government could collect $2 billion annually if it implements a tax on inheritances of $5 million or more doesn’t take some unintended consequences into account, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com.

“One of the problems with an inheritance tax is that the very wealthy will structure their finances in such a way that they don't have to pay it,” says Horst, a partner with Shibley Righton LLP. “People will transfer everything to their heirs before they die or they will set up family trusts — money that will likely go offshore.”

The Canadian Centre for Policy Alternatives (CCPA) report looked at inequalities in wealth between those on the extreme high end in Canada and everybody else. Economist David Macdonald told CBC News the 87 wealthiest families in the country owned a collective $259 billion at the end of last year.

“He contrasted that with the numbers for the median Canadian family, which saw its net worth increase by just 15 per cent over the same time period — rising to $295,100 from $257,200,” the article states.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-08-23
Description

Marlin Horst head shotProponents pushing blockchain technology to create mortgages are putting the cart before the horse, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com.

Horst, a partner with Shibley Righton LLP, says blockchain — best known as the encryption technology behind Bitcoin — is essentially a digital ledger that can be used for many other purposes beyond currency, but he’s wary of a scheme being promoted in Bermuda to create mortgages which investors could then purchase fractionally.

The Financial Post reports that the company would use local financial professionals to run “mortgage hubs” that would evaluate and underwrite them, dividing each property transaction into 100,000 Fractional Mortgage Share (FMS) units that could then be listed on the company’s blockchain-based exchange. Investors would purchase an FMS using blockchain-based tokens and would harvest principal and interest payments from the property’s owner each month.

In some cases the mortgages might also be crowdfunded with smaller fractions for investors but its setup is poorly timed and fraught with potential problems, Horst cautions.

While these mortgages are not available in Canada, promoters of the concept say it could be set up in any jurisdiction which raises a red flag, he says.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-07-16
Description

Marlin Horst head shotSandbagging reflects poorly on all parties to a transaction, Toronto corporate lawyer Marlin Horst tells AdvocateDaily.com.

Horst, a partner with Shibley Righton LLP, explains that the practice arises in mergers and acquisitions when a buyer becomes aware that the seller will be unable to meet all the representations and warranties made in the agreement.

That allows the purchaser to close the deal with the intention of later suing the vendor in court for damages related to the known deficiencies since contracts normally provide indemnities for buyers in the event promises can’t be met.

Horst says examples of sandbagging are relatively rare in Canada, but the issue is growing as parties on both sides take the risk of an episode into consideration when completing transactions. Nevertheless, he says the trend is concerning.

“If vendors are making representations and warranties that are not correct, then it means they’re not doing their own internal due diligence properly,” Horst says. “If the buyer discovers something that the vendor itself doesn’t know, it shows a lack of knowledge about their own business.”

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story
.

Date_Published
2018-06-19
Description

Marlin Horst head shotProposed rules around syndicated mortgage investments (SMI) will help “weed out” those who are taking advantage of unsophisticated investors, Toronto corporate and commercial lawyer Marlin Horst tells The Lawyer’s Daily.

An SMI “is a method of funding commercial or residential developments where two or more people pool their money to invest in large-scale real estate projects,” the article states. “The investment is a mortgage registered against title to the property that is being developed.”

The legal publication notes the Financial Services Commission of Ontario has issued more than $1 million in fines against companies involved in the SMI market and the Canadian Securities Administrators (CSA) has put forward proposed amendments in an attempt to harmonize the regulatory framework across Canada.

Horst, a partner with Shibley Righton LLP, says the syndicated mortgage market is “ripe for taking advantage of less sophisticated investors,” who think a mortgage is a good, safe investment.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-03-22
Description

Marlin Horst head shotWhile a Mareva injunction is an effective tool to stop another party from dissipating their assets, a recent Ontario Court of Appeal (OCA) ruling confirms that it will not keep a creditor from being able to access those funds, Toronto corporate and commercial lawyer Marlin Horst tells AdvocateDaily.com.

In the case, one company was granted a Mareva injunction against another. However, a creditor later applied to vary the injunction, so that it could seize money in the second company’s account under a properly issued writ of seizure and sale.

While the company appealed the motion judge’s decision to vary the Mareva injunction, the OCA dismissed the appeal, noting: “... the appellant’s Mareva injunction gives it no proprietary interest in the funds in 701. It has been unable to date to prove or establish its claim in respect to account number 701. There is no basis for the third party, [the creditor], to suffer prejudice as a result.”

Horst, a partner with Shibley Righton LLP, says the ruling shows the courts will not stand in the way of a party who has received judgment from executing against funds in a bank account, even if a Mareva injunction is in place.

In addition, he says, if a party had been given security over their assets, a Mareva injunction would not stop the secured party from having the right to realize on those assets.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-02-21
Description

Marlin Horst head shotCredit bidders will have to pay close attention to the wording of purchase agreements and guarantees after Ontario’s top court reduced the amount a company president owed from US$3 million to just US$250,000, says Toronto corporate and commercial lawyer Marlin Horst.

The defendant in the case provided a personal guarantee for corporate indebtedness, limited at $3 million, as part of a financing agreement with a bank. When the company’s debt was purchased by the plaintiff — a distressed debt lender — the guarantee was part of the deal.  

After the company defaulted on its loans, the lender ultimately purchased its assets with a credit bid worth $34 million, $3 million less than the $37 million the defendant was owed by the company.

A motion judge ordered the former president to pay the full difference plus interest due to the guarantee, but a unanimous panel of Ontario’s Court of Appeal overturned the decision and reduced his liability to $250,000.  

The court ruled that there was no evidence that $2.75-million worth of facility and forbearance fees, which were specifically excluded from the guarantee, had been included in the extinguished portion of the debt.

This is an excerpt from an article that appeared on AdvocateDaily.com.

Please click here to read the rest of the story.

Date_Published
2018-01-12
Description

Marlin Horst head shotA recent decision shows courts will take a pragmatic approach to insolvencies where there are limited assets at stake, says Toronto corporate and commercial lawyer Marlin Horst.

In the Superior Court case, the judge decided a court-appointed receiver should have responsibility for evaluating the claims of secured creditors, even though the debtor had subsequently made an assignment in bankruptcy with a different trustee.

Under normal circumstances, explains Horst, a partner with the Toronto office of Shibley Righton LLP, court-appointed receivers are often made trustees when the company enters bankruptcy. However, that didn’t happen in this case because the company made its assignment voluntarily, and without leave of the court.  

This is an excerpt from an interview that apeared on AdvocateDaily.com.  Please click here to see the complete conversation.

Date_Published
2017-10-02
Description

Established banks’ control over Canadian fintech may be inhibiting the sector’s development in this country, says Toronto corporate and commercial lawyer Marlin Horst.

A recent report by the Competition Bureau concluded regulators and institutions must work together to boost flagging innovation rates in Canada’s emerging technology-driven financial services after canvassing the opinions of players in the field.

But Horst, a partner with the Toronto office of Shibley Righton LLP, tells AdvocateDaily.com that the structure of the Canadian financial services industry is a big barrier

“In the rest of the world, fintech is a disruptor that changes the way people deal with financial institutions, but in Canada’s its’ been co-opted by the old guard,” he says.

Canada’s unusually concentrated industry, which sees just five banks account for more than 90 per cent of the domestic market, means that upstarts set their sights on joining the established players, rather than challenging them, Horst says.

This is a excerpt from an article that appeared on AdvocateDaily.com.  Please click here to read the complete story.

Date_Published
2017-09-05
Description

The Canadian Securities Administrators (CSA) recently updated its regulatory sandbox, which is aimed at providing support for Fintech businesses working on innovative products.

Marlin Horst, Shibley Righton LLPRegulatory sandboxes are used to allow developers to test their products or business models in a live environment without the restrictions of heavy regulations.

The CSA regulatory sandbox update covers a five-step process for Fintechs making use of the space. The steps include directions regarding filing of applications, the application review process and determine the limits and conditions that...

This is an excerpt of an article that appeared on TheLawyersDaily.ca.  Please click here to read the complete article.

Date_Published
2017-07-18
Description

Creditors must move quickly once they discover their secured property has moved to another province, Toronto corporate and commercial lawyer Marlin Horst tells AdvocateDaily.com.

Horst, a partner with the Toronto office of Shibley Righton LLP, says secured parties generally get 60 days to register in a new jurisdiction when property is brought across borders within Canada. However, since creditors will not always know when a move is made, Ontario’s Personal Property Security Act (PPSA) gives them 15 days to register from the time they received notice that their collateral was “brought in” to the province.

In a recent case, an Alberta auto financing company saw its secured claim on a truck denied by a Superior Court judge after the owner declared bankruptcy in Ontario.

The company perfected its interest in the Dodge Ram 1500 back in 2014, by registering under Alberta’s version of the PPSA when the owner bought it new. However, it took 20 days to register the vehicle under Ontario’s PPSA after receiving notice of the owner’s bankruptcy.

This is an excerpt from an article that appeared on AdvocateDaily.com.  Please click here to read the complete story.

Date_Published
2017-06-28
Description

Counsel will have to change the way they think about priority under the Personal Property Security Act (PPSA) after a decision that favoured a solicitor’s charging order over a perfected security under the Act, says Toronto corporate and commercial lawyer Marlin Horst.

Horst, a partner with the Toronto office of Shibley Righton LLP, teaches a course on the PPSA at Queen’s University’s law school and says he always tells students that the Act applies to any security interest unless it is specifically exempted in the law’s wording.

However, in a recent case, an Ontario Superior Court judge sided with the lawyers for a general contractor, giving it first dibs on bonds posted into court.  

That was despite the claim of a specialty insurer with a registered perfected PPSA security over the contractor's entire assets that it should be first in line, ahead of any solicitor's charging order

This is an excerpt from a story that appeared on AdvocateDaily.com.  Please click here to read the complete article.

Date_Published
2017-05-19
Description

A new government-backed capital fund is a good opportunity for underserved small and medium-sized businesses to get access to expertise as well as cash, says Toronto corporate and commercial lawyer Marlin Horst.

A number of financial institutions, including the country’s biggest banks, have teamed up to create the Canadian Business Growth Fund, which aims to make available up to $500 million over the next year to help smaller companies grow. If it takes off, the fund will double in size over the following nine years.

The fund’s sponsors have also promised to provide advice and mentorship to businesses so that they can reach their potential.  

Horst, a partner in the Toronto office of Shibley Righton LLP, says a large swath of early stage Canadian businesses are caught in the gap between angel investment funding — unavailable to all but a select few — and the public markets, which tend to be a viable option only for larger, more established companies.

This article appeared on AdvocateDaily.com.  Please click here for the complete story.

Date_Published
2017-04-24
Description

Small and medium-sized corporations are most at risk of violating a little-known Ontario law that changes the way businesses track their real estate interests, says Toronto corporate and commercial lawyer Marlin Horst.

The Forfeited Corporate Property Act, 2015 came into force in late 2016, imposing new record-keeping requirements on all companies registered under the Ontario Business Corporation Act (OBCA).  

The amendments force businesses registered in Ontario to draw up and maintain a list of all their ownership interests in lands in the province, including the date of acquisition, and later, if applicable, the date of disposal. While the new law is intended to smooth the process when dissolved corporations forfeit their property to the Crown, Horst says it has significant implications for all businesses registered under the OBCA.

“It’s a pretty major change because many corporations operate without keeping a register of their real property, and I don’t think it has been advertised as well as it should be,” says Horst, a partner in the Toronto office of Shibley Righton LLP.

This is an excerpt of an article that appeard on AdvocateDaily.com,  please click here for the full story.

Date_Published
2017-04-03
Description

The dominant position of Canada’s big banks has prevented fintech firms from disrupting financial services in this country the way they have elsewhere in the world, says Toronto corporate and commercial lawyer Marlin Horst.

The fintech sector, which includes startup firms focussing on financial technology in areas such as payment processing and alternative lending, has taken off globally in the last few years.

“In some areas of the world, they are causing a huge disruption to the status quo, particularly in Europe, where the banking system is in disarray,” says Horst, a partner in the Toronto office of Shibley Righton LLP.

this article appeared on AdvocateDaily.com.  Please click here for the full story

Date_Published
2017-01-17
Description

A $73 million settlement to be paid by CIBC for overcharging customers heralds progress of the Ontario Securities Commission’s (OSC) strategy, says Toronto corporate lawyer Marlin Horst.

Horst, a partner with  Shibley Righton LLP, says the payment was agreed to under the relatively new OSC “no-contest policy” in which an entity facing charges can agree to a penalty and avoid trial.

The policy was announced in 2014 and, "We’re starting to see more and more cases dealt with this way, avoiding lengthy and costly trials," Horst tells AdvocateDaily.com.

The OSC approved a settlement with CIBC World Markets Inc., CIBC Investor Services Inc. and CIBC Securities Inc. (the CIBC Dealers) after the CIBC Dealers discovered and self-reported a system glitch which led to 80,000 clients overpaying fees over a 14-year period.

This article appeared on AdvocateDail.com,  please click here for the full story.

Date_Published
2016-11-18
Description

The legal industry may be in the midst of a technological revolution, but don’t expect lawyers to be replaced by robots any time soon, says Toronto corporate and commercial lawyer Marlin Horst.

A U.S. company is developing artificial intelligence that will automate some of the “legal drudgery” involved in corporate mergers and acquisitions, reports the Waterloo Record.

Automation might speed up some aspects of the due diligence work required in mergers and acquisitions, but Horst tells AdvocateDaily.com any gains in efficiency will come at a price.

“If associates are no longer involved in that aspect of the process, how do they go from being a law student to having the level of sophistication and expertise that’s required of a partner,” he says, noting the experience gained by doing such “grunt work” is invaluable and essential for any lawyer looking to develop strengths in the area.

This article appeared on AdvocateDaily.com.  To read the complete story please click here.

Date_Published
2016-11-01
Description

Despite Ontario Premier Kathleen Wynne’s proroguing of the Ontario legislature, it’s fully expected the long-awaited repeal of the Bulk Sales Act (BSA) will get back on track, says Toronto corporate and commercial lawyer Marlin Horst.

Horst, a partner with Shibley Righton LLP, says the existing BSA is antiquated, redundant and has been superseded by up to six other pieces of legislation.

“It was originally passed about 100 years ago to prevent people from getting inventory and selling it off quickly without paying their suppliers,” he tells AdvocateDaily.com. “But there are several other statutes in place, such as the Personal Property Securities Act and the Fraudulent Conveyances Act, which allow the supplier to get their inventory back by reversing the transaction.”

This article appeard on AdvocateDaily.com.  For the full story please click here

Date_Published
2016-09-15
Experience
More About
BIO

Marlin Horst is a partner with Shibley Righton. His experience involves acting on behalf of corporations in a range of industries including financial services, where his practice encompasses all types of lending including syndicated, senior, subordinated, asset-based and project finance.

In addition to his corporate practice Marlin practices in the area of estate planning and administration.  He has experience acting for high net worth individuals as well as other entrepreneurs and business owners.

Marlin's corporate and lending experience includes transactions in financial services, manufacturing, hospitality, retail, services, energy, mining and private equity industries. He also has expertise in restructuring transactions, acting on behalf of both creditors and debtors. Marlin regularly advises on mergers and acquisitions, mutual funds, real estate, general corporate and commercial transactions as well as venture capital/private equity transactions. Prior to joining Shibley Righton, he practised corporate and finance law in both Toronto and Bermuda.

Marlin is a sessional professor at Queen's University Law School where he teaches courses on Commercial Law and the Personal Property Security Act. In addition, he was an adjunct professor of Banking Law at the University of Western Ontario for over ten years.

Outside of the practice of law Marlin is a director and President of FOCA (Federation of Ontario Cottagers Association).  Marlin also is a director of the charity Friends of the Learning Disabled, Camp Kirk, an overnight camp for children with learning exceptionalities.

Contact Information

T: 416.214.5211
F: 416.214.5411
E: marlin.horst@shibleyrighton.com

vCard
Education

Cambridge University, LL.M., 1987
University of Western Ontario, LL.B., 1986, B.A. 1983

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