This matter is settled. See below for further details regarding the settlement.

Administration and distribution of the Class Fund are largely complete. All claims have been reviewed and almost all settlement funds have been paid out. All that remains is our ongoing attempts to locate some Class Members for whom we do not have contact information.

We are continuing in our steps to establish contact with all Class Members in order to confirm address information.

If you have not yet had direct contact with our office, please contact us ASAP so that we can confirm contact information and send-out your settlement cheque.

Further information regarding the settlement follows below.





1. How was my entitlement calculated?

Your share of the Settlement Fund was calculated on a pro-rata basis. The total available net Settlement Fund amount was divided into the total aggregate donation amounts paid into the Banyan Tree Gift Program by all Class Members. This pro-rata calculation results in a payment of approximately $566.00 per $10,000.00 of donation amount.

2. The total Settlement Fund seems small as compared to the total aggregate donation amounts. Why is this?

Only approximately 14% of the total aggregate donation amount was actual out-of-pocket cash paid by Class Members. CRA’s offers recognized the cash paid, as a charitable donation. Security deposits were afforded capital loss tax treatment. The balance of the total aggregate donation amount was made up of promissory notes.

The settlement represents a negotiated resolution and compromise of the claims. The case was a very difficult one which presented significant factual and legal obstacles. Ultimately, the matter was settled after a lengthy mediation session before a retired judge of the Ontario Superior Court of Justice. The total Settlement Fund was approved by the Ontario Superior Court of Justice as being fair, reasonable and in the best interests of Class Members. The court was satisfied that the settlement is appropriate given the risks and uncertainty of prosecuting the case further.

3. What is included in my payment?

The amount you will receive includes claims for the cash donation amounts paid, security deposits paid, interest paid to Canada Revenue Agency on reassessments, payments made under the promissory notes, and professional accounting or legal fees incurred.

4. I paid interest to Rochester Financial Limited under my promissory notes. Do I receive additional monies?

No, the net Settlement Fund includes all damages suffered and the Court approved a distribution on a pro-rata basis without an examination or consideration of the individual circumstances of Class Members.

5. When will I receive my payment?

We hope to send out all payment cheques to Class Members by mid-July, 2012.

6. What happens to the promissory notes I signed in favour of Rochester Financial Limited?

The court granted a declaration that all loan agreements and promissory notes signed by Class Members in favour of Rochester Financial Limited in connection with the Gift Program are unenforceable by Rochester, its successors or assigns.

This means that you will not be required to make any further payment to Rochester or anyone else under the loan agreement or promissory notes.

The court order granted was not intended to affect the rights of class members in relation to appeals to the Tax Court of Canada with respect to assessment or reassessment by Canada Revenue Agency. We are not aware of any present ongoing tax appeal before the Tax Court of Canada.

7. How will CRA treat the settlement payment I receive?

The settlement payment is a compromise of all monetary damages you may have suffered, including but not limited to: the cash donation paid, the security deposit paid, interest paid to CRA on re-assessment, payments made on promissory notes, and professional accounting or legal fees incurred. The settlement was reached with Rochester Financial Limited, Banyan Tree Foundation, Promittere Asset Management Ltd. and Promittere Capital Group Inc. and Fraser Milner Casgrain LLP. It involves all defendants. It is unknown how CRA will treat the settlement payment.

We are not your individual tax advisors and are not in a position to provide individual tax advice on this issue. Class Members should obtain their own individual tax and/or accounting advice on this issue.

8. What do I have to do now?

We ask that you sign one copy of the Proposed Distribution of Settlement Fund form and return it to us immediately. You may do so by email, fax, courier or mail. The second copy is for your records.


If you would like more information regarding this claim or wish to be added to our database of claimants, you may e-mail us at:

You can contact us directly by telephone at Scarfone Hawkins LLP
at 905-526-4394.

You can contact us by fax at 905-523-5878.

Due to the volume of inquiries, please allow one week for a response.