Mr Matthew Fleming

Matthew Fleming

Updates

Litigation

Court of appeal sets jurisdiction test for class actions with global classes
Canada | 02 January 2018

The Court of Appeal for Ontario recently clarified the test for assuming jurisdiction over absent foreign claimants in Ontario class actions with international elements, opening the door to the potential certification of class proceedings on behalf of global classes. While the jurisdictional hurdle for absent foreign claimants appears to have been lowered as a result of the decision, it remains to be seen how the lower courts will interpret and apply the appeal court's test.

Judges may weigh evidence on leave motions in secondary market securities class actions
Canada | 11 October 2016

The Ontario Court of Appeal recently upheld a decision refusing leave to commence an action for secondary market misrepresentation under the Ontario Securities Act. The decision confirms that the test for leave in statutory secondary market claims must be viewed as a substantive hurdle to such claims and that judges considering a motion for leave must weigh and evaluate the evidence before them.

Ontario Court of Appeal lifts stay in cross-border class action
Canada | 27 September 2016

A recent Ontario Court of Appeal decision demonstrates the interrelated nature of cross-border class proceedings. Courts in both Canada and the United States may look to the substantive and procedural law in each jurisdiction when considering the conduct of class proceedings. In Canada, the existence of a foreign class action may be sufficient to stay Canadian claims, unless a plaintiff will be prevented from pursuing its substantive rights.

Court clarifies scope of underwriter liability in securities class actions
Canada | 24 May 2016

The Ontario Superior Court of Justice recently considered a motion to add the underwriters of a bought deal secondary public offering as defendants to a proposed securities class action lawsuit. The court clarified the nature and extent of underwriter liability, particularly in the context of primary and secondary market misrepresentation claims under the Ontario Securities Act.

Secondary market securities class action dismissed based on evidence
Canada | 10 May 2016

The Ontario Superior Court of Justice recently dismissed two motions: one for leave under the Ontario Securities Act to commence an action for secondary market misrepresentation and one for certification to proceed as a class action under the Class Proceedings Act. In doing so, the court confirmed the close analytical relationship between requests for leave under the Ontario Securities Act and motions for class action certification under the Class Proceedings Act.

Supreme Court considers limitation period for secondary market securities class actions
Canada | 02 February 2016

The Supreme Court of Canada recently released its highly anticipated decision in a trilogy of shareholder class actions under the secondary market liability provisions of the Ontario Securities Act. At issue was whether the Class Proceedings Act suspends the limitation period applicable to a claim under the Ontario Securities Act when a plaintiff files a statement of claim or motion for leave, or whether it is suspended only once leave has been granted.

What constitutes a 'public correction' for the purpose of secondary market misrepresentation class actions?
Canada | 26 January 2016

The Ontario Superior Court of Justice recently considered, for the first time, what constitutes a public correction of an alleged misrepresentation in a secondary market securities class action. The decision clarifies that the public correction requirement's primary purpose is to serve as a "time-post" for the assessment of damages; it is not meant to be a significant hurdle to obtaining leave to bring an action for damages.

Supreme Court raises bar for leave to bring secondary market securities class actions
Canada | 14 July 2015

The Supreme Court recently ruled that Section 225(4) of the Quebec Securities Act – requiring plaintiffs to show that their claims are brought in good faith and with a reasonable chance of success – is not an obstacle to obtaining court authorisation for an action against reporting issuers, directors, officers or experts for damages resulting from the acquisition or disposition of securities in the secondary market.

Costs awards in class actions: equal treatment for plaintiffs and defendants
Canada | 30 June 2015

The Ontario Divisional Court recently rejected the notion that Ontario courts should treat plaintiffs and defendants differently when determining costs in cases that raise novel issues or matters of public interest. In doing so, the court disabused many of the assumption that in class proceedings, only unsuccessful plaintiffs may be relieved of their obligation to pay costs in appropriate circumstances.

Ontario Court of Appeal deals blow to securities class actions
Canada | 24 February 2015

A recent Ontario Court of Appeal decision considered an appeal of the dismissal of a proposed securities class action based on common law and statutory misrepresentation claims. The decision establishes that motion judges faced with a motion for leave to pursue a secondary market securities class action should take a hard look at the evidence, including expert evidence, on which the claim is based.

Ontario declines jurisdiction over BP cross-border securities class action
Canada | 16 September 2014

The Ontario Court of Appeal recently released a unanimous decision regarding multi-jurisdictional securities class actions. In Kaynes v BP, PLC, an Ontario shareholder alleged that BP, PLC had made misrepresentations to its shareholders regarding, among other things, the extent of the 2010 Deepwater Horizon oil spill, which negatively affected the price of its shares.

Class action trilogy clarifies certification test, increases anti-competitive exposure
Canada | 07 January 2014

Recent decisions made by the Supreme Court of Canada constitute a watershed moment in competition law in particular, and class proceedings in general. Indirect purchasers – that is, consumers who did not purchase products directly from the price fixer, but who purchased them indirectly from a reseller or other intermediary – have a right of action against the alleged price fixer at the top of the distribution chain.

Supreme Court develops new test for assuming jurisdiction over foreign defendants
Canada | 26 June 2012

The Supreme Court of Canada recently established a new common law test for determining whether a Canadian court may assume jurisdiction over a foreign defendant. The new test is significant for foreign companies that do business in Canada or with Canadians, as it clarifies the circumstances in which such companies may be obliged to defend proceedings in a Canadian court.

Takeover Battles: New Limits on Maximizing Shareholder Value?
Canada | 01 May 2007

Directors of a company that is 'in play' have a fiduciary obligation to maximize shareholder value. However, the courts of Ontario have recently subjected the rule to an important exception: a superior proposal that would otherwise maximize shareholder value will be prohibited from being considered by the target's directors if it is made in contravention of the auction process established to sell the target company.

Ontario Securities Commission Dismisses Insider Trading Allegations
Canada | 21 March 2006

In a recent decision the Ontario Securities Commission considered four critical issues in the context of an insider trading case, including the standard of proof to be applied in an insider trading case before the commission and the extent to which hearsay evidence will be relied upon by the commission in reaching a decision on the merits of a case.