In Bayens v Kinross Gold Corp, released November 5,
2013, Justice Paul Perell of the Ontario Superior Court of Justice
denied the plaintiffs in a putative class action leave to advance a
statutory claim for securities market misrepresentation under Part XXIII.1 of the Securities Act.
In denying leave, Justice Perell also dismissed the plaintiffs'
motion to certify the statutory claim along with a common law claim
for negligent misrepresentation.
The Kinross decision represents a welcome victory for
potential defendants across the province, and one of the few
instances since the 2006 enactment of Part XXIII.1 of the
Securities Act that a motion for leave under this part has
been denied. Justice Perell denied leave on the basis that he
was not satisfied on the evidence that there exists a reasonable
possibility that the action will be resolved at trial in favor of
the plaintiffs. In arriving at this decision, he examined the
legislative history pertaining to the leave test and thoroughly
canvassed the relevant case law addressing the threshold that must
be met to successfully obtain leave. Justice Perell's
decision may serve to reassure potential defendants that the
judiciary views the test for leave as more than a mere bump in the
road. Rather, as defendants have consistently argued, the
test ought to be a genuine screening mechanism, capable of weeding
out unmeritorious claims. While this decision arguably and,
many will say, appropriately elevates the test, appellate guidance
on the issue remains necessary to further define the test's
Notably, in deciding the matter of certification, Justice Perell
went on to bootstrap the common law negligent misrepresentation
claim to the statutory claim, and he denied certification of the
entire action on the basis of the plaintiffs' failure to obtain
leave under the Securities Act. Justice Perell held
that, with the failure of the statutory claim to be granted leave,
it necessarily followed that both the statutory claim and the
common law negligence claim failed to satisfy the certification
criteria under section 5(1) of the Class Proceedings
Specifically, in light of the plaintiffs' failure to obtain
leave, Justice Perell held that the statutory claim could not be
certified as there was no such cause of action. More
importantly, with respect to the common law claim, Justice Perell
held that, having the same evidentiary foundation as the statutory
claim, there was no basis in fact for three of the five
certification criteria (class definition, common issues and
preferable procedure), and thus the common law claim could not
Given that the merits-based test for leave under the
Securities Act is evidence-based and more onerous than the
procedural test for certification under the Class Proceedings
Act, Justice Perell's conclusion concerning the common law
claim may be met with a chorus of calls of overreaching from the
plaintiff's bar, particularly given that the common practice is
to bring statutory and common law claims concurrently. It is
no surprise, then, that the plaintiffs in this case intend to file
their notices of appeal by the end of the month. Next will be
the Court of Appeal's decision on whether leave to appeal
Justice Perell's decision will be granted.
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Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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