Plaintiff class action lawyers were unable to convince the
Divisional Court to grant leave to appeal an earlier decision of
the Superior Court of Justice in which Justice van Rensberg
significantly reduced the size of the plaintiff class in
Silver v. IMAX.
The IMAX case is a shareholder class action in which
investors are alleging that they suffered losses after it was
revealed that certain errors had been made in IMAX's financial
disclosure over a period of time.
IMAX's securities were traded both on the TSX and the
NASDAQ. Approximately 85% of the IMAX securities acquired
during the relevant time period were acquired on the NASDAQ.
class actions were brought in Ontario and in New York claiming
damages arising from the alleged misrepresentations. In 2009,
Justice van Rensberg certified the Ontario class action. This
was a "global class," including both investors that
acquired securities on the TSX and the NASDAQ. In certifying
a global class, Justice van Rensberg noted that due to the parallel
proceeding in New York, the issue of class definition would
necessarily require a "wait and see" approach in the
event that developments in New York necessitated some modification
to the Ontario class definition.
Although plaintiffs' counsel in New York had initially
sought to pursue the claim on behalf of a "global class"
in that jurisdiction as well, ultimately the New York class action
was confined to those securities acquired on the NASDAQ
In early 2012, IMAX entered into a $12 million settlement in the
New York proceeding. As part of the approval process directed
by the New York judge, notice of the settlement was widely
publicized by way of a notice. Among other things, the notice
included a description of the overlapping proceeding in Canada, and
advised that any individual members of the class in the New York
action (investors that purchased securities on the NASDAQ) that did
not take the positive action of opting out of the New York class
action would be bound by the result of the settlement and not
permitted to participate in the Ontario class action. If a
class member that purchased shares on the NASDAQ did not wish to
participate in the New York settlement, they were free to opt out
of the settlement and continue to participate in the Ontario class
action. Only a handful of NASDAQ investors opted out of the
New York settlement.
The New York settlement was approved by the New York court in
June 2012, conditional on an amendment to the global class in the
Ontario action to exclude those investors that would benefit from
the settlement. In other words, NASDAQ investors could not
participate both in the New York settlement, and remain parties to
the Ontario lawsuit on the same subject matter.
In a motion in the Ontario class action, Justice van Rensberg
recognized the New York settlement and amended the class definition
to exclude all investors that were bound by that settlement.
The representative plaintiffs in the Ontario action sought leave
to appeal Justice van Rensberg's decision, raising several
largely technical ground of appeal. They argued that:
Justice van Rensberg did not have jurisdiction to amend the
The issue of class definition was already determined by the
certification motion decision, and this motion was merely an
attempt to impermissibly re-litigate the certification decision;
Justice van Rensberg applied the wrong legal test in deciding
to enforce the New York settlement.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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).