On May 13, 1999 Justice Winkler, of the Ontario Superior Court, released his Decision in the class action certification proceedings relating to Bre-X Minerals Ltd. Justice Winkler’s decision, unless overturned on appeal, will be of much assistance to potential defendants, particularly investment dealers and analysts, in securities-related actions under the Ontario Class Action Proceeding Act.
In Bre-X, several investment dealers, together with their gold analysts, were sued (along with numerous other defendants), inter alia, for negligent misrepresentation. The investment dealers successfully argued that, although such claims could be pursued individually, they should not be certified as a class proceeding. The essence of the Court’s decision related to “preferable procedure” and insufficient commonality. Importantly, the Court held that the action could not include the concept of “fraud on the market” since that is not a concept recognized in Canadian law.
Counsel for the Plaintiffs were Harvey Strosberg, Q. C., and Heather Rumble Peterson, both of Gignac, Sutts; D. H. Jack of McDonald & Hayden; and Paul J. Pape, Q. C.
Counsel for the Defendants were as follows: Larry Thacker of Lenczner Slaght Royce Smith Griffin for the Estate of David Walsh, Stephen McAnulty, Jeannette Walsh and Nancy McAnulty; Douglas Stewart, Q. C. for Bresca Resources Ltd. ; Robert J. Potts and Rob Muir, both of Blaney, McMurtry, Stapells, Friedman, for John B. Thorpe; Brian Bellmore of Bellmore & Moore for Rolando Francisco; Paul Le Vay of Stockwood Spies for Paul M. Kavanagh; Joseph Groia of Heenan Blaikie for John B. Felderhof; John A. Campion and William Hourigan of Fasken Campbell Godfrey and Ward Branch of Russell & DuMoulin for Nesbitt Burns Inc. and Egizio Bianchini; Joel Wiesenfeld and Jane Ratchford of Fogler, Rubinoff for First Marathon Securities Limited and Kerry Smith; Thomas G. Heintzman and J. Thomas Curry of McCarthy Tétrault and J. V. O’Donnell, Q. C. of Lavery, de Billy for SNC-Lavalin Group Inc. , SNC-Lavalin Inc. , Kilborn Engineering Pacific Ltd. , Kilborn SNC-Lavalin Inc. and P. T. Kilborn Paka Rekayasa; Benjamin Zarnett and Jessica Kimmel of Goodman Phillips & Vineberg for TD Securities Inc. and Ken Gillis, and for Midland Walwyn Capital Inc. and Michael Jalonen, and for Levesque Beaubien Geoffrion Inc. and Michael Fowler; Robert L. Armstrong and Dana B. Fuller of Meighen, Demers for Scotia McLeod Inc. and Ted Reeve; and Michael Birley and J. Maron of Miller Thomson for CIBC Wood Gundy Securities Inc. , and Bruno Kaiser.