Ontario Civil


Appeal

LEAVE TO APPEAL
Appellate guidance would be useful for subsequent cases

This was application for leave to appeal decision respecting carriage of class action. In 2011, securities of defendant were sold through public offering. Defendant issued press release that disclosed disappointing financial results for first quarter of 2011. Payment of dividends was suspended and share price fell dramatically. Two class proceedings were commenced in Ontario. Plaintiffs applied to court to determine who should have carriage of class action. Judge concluded that first plaintiff action should continue because of its simple and cohesive but adequately comprehensive approach to class and to damages and fact that benefits of plaintiffs outweighed any concern over fewer numbers of defendants. Action commenced by second plaintiff was stayed. Leave to appeal granted. Order was discretionary and was entitled to deference. There were conflicting decisions with respect to principles to be applied when determining carriage motions. Appellate guidance would be useful not only for purposes of case but for subsequent cases. Extent to which court could and should undertake substantive review of cases advanced by competitors to carriage motion was not solely academic and transcended facts of and parties to proceedings. There was reason to doubt correctness of order. It might be argued that analysis was internally inconsistent. Extent of analysis of several factors underlying decision was subject to serious debate. Issue was relevant and important because it related to current state and development of law. Resolution might provide guidance with respect to approach to be adopted by those pursuing or deciding between competing class actions.

Simmonds v. Armtec Infrastructure Inc. (Sep. 18, 2012, Ont. S.C.J., Grace J., File No. 4622/11CP; CV-11-16465) Leave to appeal from 212 A.C.W.S. (3d) 22 was allowed. 222 A.C.W.S. (3d) 9.

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