CD: How would you describe the level of securities class action filings in Canada over the past 12 to 18 months? Are any specific Canadian provinces witnessing greater numbers of these cases?

Foreman: Filings in Canada have certainly slowed down over the past one to two years. Our provincial governments introduced new legislation in 2006 that was designed to enable securities law class actions for secondary market misrepresentations. Activity started slowly thereafter and then grew considerably. Two cases made their way to our Supreme Court of Canada for an interpretation of some of the fundamental elements of that new regime. The result was a careful and quite conservative interpretation of the statutory requirements for secondary market misrepresentation class actions. Those cases have since driven a more cautious approach to these matters on the plaintiff’s side – something which has been reflected in the lower rate of new filings. That is a double edged sword – nobody wants meritless cases in the system, but it is my hope as a front line operator in this space that our system will do more than simply service the largest and most obvious securities law failures. There is a pendulum swing here and circumstances are ripe for recalibration in my view. Across Canada, Ontario is overwhelmingly the main jurisdiction in which claims are brought, although we have seen a number of cases in Quebec and in other provinces from time to time.

Oct-Dec 2017 issue

Harrison Pensa LLP

McCarthy Tétrault LLP

WeirFoulds LLP