Tristram Mallett, Kevin O’Brien
Sep 20, 2016
Legal affairs writer Julius Melnitzer provides a valuable summary of recent jurisprudence related to class actions in an article in the September 2016 issue of Lexpert Magazine, concluding that a number of definitive decisions over the past year have helped refine the parameters of class actions and offer clarity for both plaintiffs and defendants. In his piece, Melnitzer consults with a wide range of lawyers, including Osler litigation partners Tristram Mallett from the firm’s Calgary office and Kevin O’Brien who practises in the firm’s Toronto office. Tristram emphasizes the importance of the ongoing evolution of the class action landscape.
“We used to be all over the map, but now we’re getting closer to knowing what’s a blip and what is permanent and how it’s going to work,” he comments. “We’re not all the way there yet but we’re getting closer. What’s gone for sure are the days when lawyers would spend two days arguing about what the test for certification is.”
One area that has benefitted from recent clarification is the leave test in securities class actions for commencing secondary-market misrepresentations. Melnitzer examines the test in the context of Justice Helen Rady’s decision in Bradley v. Eastern Platinum Ltd. and relies on Kevin’s insight.
“The upshot is that motions for leave will result in a comprehensive analysis on the merits, forcing parties to lead with their best foot,” Kevin explains. “That’s not to say that the plaintiffs will have to prove their case, but they will have to show a realistic possibility that they will ultimately be successful.”
To learn more about the current state of class actions in Canada, read Julius Melnitzer’s full article “Class actions: New order” in the September 2016 issue of Lexpert Magazine.