On February 24, 2012, the Superior Court rendered the first
decision in Quebec on the application of the new provisions of the
Securities Act (the "Act")
regarding secondary market liability (121851 Canada inc. c. Theratechnologies inc.
– available in French only). With this decision, the
Plaintiff, 121751 Canada Inc., was granted the authorization to
bring an action for damages under section 225.4 of the Act and
to do so by way of a class action.
In this case, the Plaintiff alleges that the Respondent,
Theratechnologies, failed to disclose a material change in its
business, operations or capital in the course of the approval
process surrounding its lead drug, tesamorelin, by the Food and
Theratechnologies sought from the Court of Appeal permission to
appeal this judgement on the grounds that the Superior Court, even
though it acknowledged that the authorization mechanism provided in
the Act differs from that governing class actions, failed to apply
it correctly. Indeed, section 225.4 of the Act provides that an
authorization must be applied for prior to bringing an action under
the secondary market liability regime set out in
sections 225.2 ss. of the Act. In order to obtain such court
authorization, the plaintiff must demonstrate that "the action
is in good faith and there is a reasonable possibility that it will
be resolved in favour of the plaintiff".
Given the obvious attention generated by this matter, the motion
seeking permission to appeal was exceptionally referred to a
three-judge bench, that will have to decide whether to grant the
motion or not and, if applicable, to pass upon the merits of the
On January 24, 2013, the Court of Appeal heard the parties,
both on the leave to appeal from a judgement rendered under
section 225.4 of the Act and on the merits of the appeal of
the trial decision.
If leave to appeal is granted, the Court of Appeal will be
called upon to decide upon the following issues, which will
certainly garner the attention of relevant authorities in other
Can a judgement authorizing the institution of an action under
section 225.4 of the Act be appealed with leave (s. 29
and 511 C.c.p.)?
Must the analysis of the evidence under the authorization
mechanism provided for in section 225.4 of the Act show more
than a mere colour of right?
What constitutes a "material change" triggering a
reporting issuer's continuous disclosure obligation?
Does 121751 Canada Inc. have a reasonable chance of proving
that a material change occurred in the business, operations or
capital of Theratechnologies which triggered its continuous
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).