Mark A. Gelowitz, Craig Lockwood, Robert Carson, Lipi Mishra, Elie Farkas
Jan 11, 2023
In a series of securities class action decisions issued in 2022, Ontario courts provided useful guidance on elements of the statutory cause of action for secondary market misrepresentation. In Lundin Mining, the Ontario Superior Court of Justice clarified the “change” aspect of a “material change” under the Ontario Securities Act and, in Pretium, the Ontario Court of Appeal confirmed that the reliability of information is a relevant consideration when determining whether information is “material.”
In addition, courts have continued to show an increasing willingness to engage, at the preliminary leave stage, in detailed examinations of both the fact and opinion evidence adduced by the parties. In 2022, leave motion judges diligently performed what the Supreme Court of Canada has called their “important gatekeeping role,” repeatedly cautioning against attempts to “reason backwards” from a decrease in share price to argue that a claim has a reasonable possibility of success. In each of Silver Wheaton, Americas Gold and Silver, Maxar and Barrick, the motion judge’s thorough consideration of the evidentiary record resulted in the court denying leave for some or all of the asserted claims...
Read or listen to this Legal Year in Review 2022 article