Lexpert US Guides

CLASS ACTIONS The decision, which rocked Bay Street and has potentially broad implications for class actions generally, stems from  the mutual fund market timing debacle of 2004.  The Court of Appeal concluded that the settlement of regulatory enforcement proceedings against the funds in which they paid C$205 million to investors – less than the full value of investors' damages – did not oust class action remedies in civil courts. "Fischer engages a very important issue involving matters of principle to which each of the three courts that pronounced on it in this case have taken a very different approach," said Benjamin Zarnett of Toronto's Goodmans LLP, who with colleagues Jessica Kimmel and Melanie Ouanounou represents CI Mutual Funds Inc. Joel Rochon of Toronto's Rochon Genova LLP, who with colleagues Peter Jervis and Sakie Tambakos represented the class, says the decision provides "long-awaited crisp guidance to judges, lawyers and corporations as to the critical role class actions play in providing for access to justice" in the context of securities cases. "Class actions will not be easily displaced by opaque procedures which provide no meaningful direct rights of participation to victims of corporate wrongdoing," he says. The Court of Appeal ruling, if upheld by the Supreme Court, means that the lawsuit against CI and AIC Limited can proceed to trial. The other defendants, IG Investment Management, Ltd., Franklin Templeton Investments Corp. and AGF Funds Inc. were not involved in the appeal as they chose to settle the class action suits. But the case's impact is not confined to securities cases. Indeed, the principle that the mere existence of a regulatory remedy for wrongdoing does not oust class action remedies has wide repercussions. "The Class Proceedings Act requires that a class action be the preferable procedure for resolving a dispute before it can be certified," Zarnett says. "So arguably Fischer could apply in any case where companies are holding up an alternative process, whether it's regulatory or voluntary, as a preferable alternative to a class action." Fischer arose when the Ontario Securities Commission (OSC) commenced proceedings against the five defendant funds for failing to act in the public interest in relation to market timing activity in their funds. The regulatory proceedings ended when the funds agreed to pay C$205 million to aggrieved investors. All the settlements specified that they were without prejudice to the rights of investors to bring civil suits against the mutual fund managers with respect to the same subject matter. Dennis Fischer and other representative plaintiffs initiated the class action after the OSC proceedings ended. The plaintiffs sought to recover the difference between the OSC settlement and the hundreds of millions of additional dollars they maintained were required to make full compensation to the investors. In January 2010, Justice Paul Perell of the Ontario Superior Court of Justice refused to certify the case, but the Divisional Court reversed his ruling. The Court of Appeal upheld the Divisional Court result, but on different reasoning leaving little doubt that it would not tolerate judicial constructs that made it more difficult for plaintiffs to satisfy the preferable procedure test. "The Court of Appeal's reasons are an aggressive restatement 18 | LEXPERT • December 2013 | www.lexpert.ca of the preferable procedure test that keeps the door as wide open – and maybe a little wider open – than it has ever been for plaintiffs," says Kirk Baert of Toronto's Koskie Minsky LLP, who represents plaintiffs in class actions. But defendants' lawyers say that class actions, which are representative proceedings, should not be piggybacking on proceedings in which a regulator, acting in its statutory capacity, has recovered money for investors.  Where regulatory enforcement has occurred, they say, class actions are not the "preferable procedure" mandated by class action legislation. Otherwise, securities actions based on secondary market misrepresentations seemed to have suffered a telling blow when the Ontario Court of Appeal decided last year in a case involving Timminco Ltd. that plaintiffs had to obtain the required leave to commence such action within three years of the date of the impugned misrepresentation.  Plaintiffs' lawyers decried the decision, complaining that the inaccuracy of many representations did not even become public until well into or after three years. When Timminco was released in early 2012, some defense lawyers called it the most important decision to date in secondary market class action jurisprudence. The Court of Appeal overturned Superior Court Justice Perell, who had ruled that s. 28 of the Class Proceedings Act, which suspends limitation periods applicable to class actions "on the commencement of the class proceeding," began to run from the time that the plaintiffs announced their intention to seek leave in their statement of claim — which is precisely what the Timminco plaintiffs did. Subsequently, the Supreme Court of Canada denied leave to appeal in Timminco. What followed, however, were conflicting decisions from various Superior Court judges as to the scope of the relief, if any, available to plaintiffs who had missed the three-year limitation as interpreted by the Court of Appeal. In Green v. CIBC, Justice George Strathy held that the court had no discretion to extend the limitation period following its expiry. He refused to apply the common law doctrine of "special circumstances" to secondary market cases. The doctrine extends limitation periods where the interests of justice so require and there is no prejudice to defendants apart from having to defend the actions. Strathy did state, however, that he would have extended the limitation period on the facts had he found that the doctrine was applicable. But in Silver v. Imax, Justice van Rensburg did grant relief. She concluded that the court had discretion to grant leave to proceed with a class action nunc pro tunc so as to situate the granting of leave within the limitation period. Subsequently, in Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., Justice Perell, in direct opposition to Justice Strathy, found that discretion to extend relief from the limitation period existed and applied the doctrine of "special circumstances" to extend the limitation period. He found that the defendants were not prejudiced by the extension because they had been aware of the claims since 2007 and had been defending parallel claims in the US since then. The upshot is that the rulings in Silver and Celestica significantly diluted the hard-line approach taken by the Court of

• 1-Table of Contents.indd
• 2-Features.indd
• 3-Firm.indd
• 4-Bios.indd
• 5-Lawyers to Watch.indd