Canada: Canada And Class Action Developments?

There are several important issues that bear watching in the Canadian courts in connection with class actions.

1. Limitation period under the Ontario Securities Act

On August 7, 2014, the Supreme Court of Canada granted leave to appeal in three Ontario securities class action cases: Green v Canadian Imperial Bank of Commerce, Silver v IMAX and Celestica v Trustees of the Millwright Regional Council of Ontario Pension Trust Fund.

These cases address how the three year limitation period under the Ontario Securities Act applicable to secondary market class actions should be applied. To bring a secondary market class action under the Ontario Securities Act, leave of the court is required. Pursuant to section 138.14, the action must be commenced within three years. Securities legislation in the other provinces contain similar provisions.

On February 16, 2012, in Sharma v Timminco, the Ontario Court of Appeal interpreted this provision to mean that plaintiffs must obtain leave from the court within the three year period to commence the action. This was a surprising and, for many securities class action plaintiffs, an unfortunate decision, as in many pending cases the plaintiffs not obtained leave within the three years, but had simply applied for leave, and the three year period had already expired.

In the wake of Timminco, there were several diverging decisions. On February 3, 2014, in Green v Canadian Imperial Bank of Commerce, a rare five judge panel of the Ontario Court of Appeal reversed its own decision in Timminco (with companion decisions in Silver v IMAX and Celestica v Millwright). The Court of Appeal found that articulating an intention to seek leave to commence the secondary market claim under the Securities Act was sufficient to suspend the limitation period, even though leave had not yet been granted to commence such an action.

It is now down to the Supreme Court for the final say on how this three year limitation period is to be applied. The Supreme Court's decision will have a significant impact on numerous securities class actions already before the courts and those to come.

2. Bank faces liability for breach of privacy

On June 6, 2014, in Evans v Bank of Nova Scotia, the Ontario Superior Court at first instance has certified a class action against the Bank of Nova Scotia for vicarious liability for, among other claims, the tort of intrusion upon seclusion: in effect, for the breach of privacy rights of customers of the bank whose personal financial information had been disclosed illegally to hackers by an employee of the bank.

This is the first time such a class action has been brought against a financial institution in connection with this tort. The tort of intrusion upon seclusion is relatively new, having been recognized by the Ontario Court of Appeal in 2012 in Jones v Tsige. A necessary element of the tort is that the underlying conduct must be intentional, which includes reckless conduct. The plaintiffs did not allege that the bank acted intentionally but instead alleged that the bank was vicariously liable for its employee's intentional and wrongful actions against over 600 customers. Vicarious liability per se would attach due to the relationship of the bank to the wrongdoer not due to its own conduct. The bank has vigourously contested whether it can be vicariously liable for the employees actions.

If the claim is maintained, it opens up an additional exposure for banks and other entities which possess and control financial and personal information. While the non-pecuniary damages for breach of this tort are capped at $20,000 per person, this can be significant when hundreds of people are affected.

3. Court of Appeal closes door on Canadian claims involving foreign investors

The decision of the United States Supreme Court in Morrison v National Australia Bank was a landmark in securities class litigation, in that it ruled that foreign investors in foreign companies who purchased their securities on foreign exchanges had no right of action under US securities laws.

Until recently, some Canadian courts had agreed to accept jurisdiction in similar situations, where they found that there was a "real and substantial connection" between the action and the jurisdiction, and had certified "global" classes – although not all agreed (e.g. McKenna v Gammon Gold). In the wake of Morrison, some wondered whether Canada would become the go-to jurisdiction for foreign investors whose own jurisdictions did not have similar remedies or the means of bringing class actions.

On August 14, 2014 the Ontario Court of Appeal rendered its decision in Kaynes v BP, plc. The representative plaintiff, an Ontario resident who purchased his BP American Depositary Shares ("ADS") on the New York Stock Exchange ("NYSE"), sought to certify a class of all Canadian BP shareholders who purchased their shares between May 2007 and May 2010 regardless of which stock exchange was involved. He asserted a statutory right of action for misrepresentation under the Ontario Securities Act, arguing that BP, as a "reporting issuer", was subject to Ontario securities legislation. BP, a UK corporation headquartered in London, sought to have the action of those plaintiffs who purchased their securities on an exchange outside Canada dismissed for lack of jurisdiction.

The trial court had dismissed BP's motion. However, the Court of Appeal reversed that decision, finding that while the Ontario courts did have jurisdiction simpliciter, they should decline that jurisdiction on grounds of forum non conveniens. It examined the remedies available to security holders under US and UK law, noting that there was a parallel shareholder class action by BP shareholders in the US. It also noted the relative volume of shares traded in the three jurisdictions, and found that 0.0005% of BP shares had traded on the TSX. Remarking that the US and the UK assert jurisdiction on the basis of the exchange where the securities are traded, the Court ruled that "[a]sserting Ontario jurisdiction over the plaintiff's claim would be inconsistent with the approach taken under both US and UK law ..." and that "the principle of comity requires the court to consider the implications of departing from the prevailing international norm or practice, particularly in an area such as the securities market where cross-border transactions are routine and the maintenance of an orderly and predictable regime for the resolution of claims is imperative". As for the consequences to the plaintiffs, the Court stated that "[i]t would surely come as no surprise to purchasers who used foreign exchanges that they should look to the foreign court to litigate their claims".

Given BP's concession that the Ontario court did have jurisdiction over the claims of those members of the class who had purchased their shares on the TSX, the Court granted leave to amend the claim accordingly. It seems unlikely, however, that those plaintiffs will pursue the claim, given that of the total of 83,945 ADS which had traded on the TSX, the number held through the end of the proposed class period was somewhere between 14 and 7,477.

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

Click to Login as an existing user or Register so you can print this article.

Catherine Tyndale
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.