Canada: Differently Situated Defendants And Preferable Procedure: LBP Holdings Ltd. v. Hycroft Mining Corp.

Last Updated: November 13 2017
Article by Bevan Brooksbank

Most Read Contributor in Canada, October 2017

The proposed class action

The representative plaintiff sought to certify a class proceeding on behalf of primary market shareholders against two classes of defendants. Firstly, the plaintiff alleged misrepresentation under section 130 of the Ontario Securities Act as against the issuer Hycroft Mining and its directors. Secondly, the plaintiff sought certification against the underwriters, who had been added as parties following the bankruptcy of Hycroft Mining.  However, by virtue of the fact that a claim under section 130 was found to be statute-barred, the action proceeded only on the basis of alleged negligence and negligent misrepresentation at common law.

The nature of the claim against the underwriters was founded on their statutory obligation to deliver a certificate in a prescribed form that certified that the prospectus was full, true and constituted plain disclosure to the best of their knowledge. The plaintiff alleged that, as a result of their ability to conduct due diligence in order to issue such a certificate, the underwriters knew or ought to have known that the prospectus failed to include material facts with regards to the production of a key mine.

While the statutory action was certified, on consent, as against Hycroft Mining and its directors, the underwriters resisted the motion to certify the common law claims on the basis that the claims did not disclose a reasonable cause of action and that a class proceeding was not the preferable procedure.

Justice Perell found that the negligent misrepresentation claim against the underwriters disclosed a reasonable cause of action. A common law negligent misrepresentation claim can be certified notwithstanding that there will be individual trials to address reliance and damages. However, it was ultimately held that a class proceeding was not the preferable procedure for its adjudication. Accordingly, the motion to certify the action against the underwriters was dismissed.

Preferable procedure

Relying on the principles articulated by the Supreme Court of Canada in AIC Limited v Fischer, the Court noted that in order to satisfy the preferable procedure criterion, the prospective plaintiff must demonstrate that the proposed class action would:

  1. Be a fair, efficient and manageable method of advancing the claim;
  2. Be preferable to any other reasonably available means of resolving the class members' claims; and
  3. Facilitate the three principal goals of class proceedings, namely judicial economic, behaviour modification and access to justice.

In applying these principles, Justice Perell found that the circumstances of the case did not render the claim best suited to adjudication via a class proceeding.

While each case will turn on its own facts, it was held that since no statutory cause of action could be advanced against the underwriters (unlike the statutory claims against the issuer and directors), there were no synergies in having the claims heard together. In other words, the alleged misrepresentation made by the underwriters differed fundamentally from those made by the issuer and directors. The former would require individual issues trials with respect to causation, reliance, and damages, while the latter rested largely on the finding of a misrepresentation in the prospectus, and the purchase of a security offered thereunder during the period of distribution.

Justice Perell (at para 85):

In the case at bar, coat tailing the tort claims against the Underwriters with the statutory misrepresentation claim against the Hycroft Defendants is problematic in terms of manageability and given the difference between the claims against the co-defendants, there is only modest advancement in judicial economy and much less than would be the case if a statutory claim against the Underwriters had been combined with the common law claims against them. Indeed, given that the misrepresentations, duty of care, and standard of care issues are not the same for the co-defendants, combining the statutory and common law claims may complicate the prosecution and defence of the various causes of action.

Lastly it was noted that, given the monetary size of the average class member claim against the underwriters, such claims were viable as individual actions.


Apart from providing guidance as to the appropriate limits of potential underwriter liability to shareholders of an issuer, the case serves as a useful reminder that claims against disparate defendants may result in divergent results when it comes to class certification. In particular, parallel claims against co-defendants that give rise to different legal tests, and in turn that require different facts to establish liability, may not satisfy the preferable procedure criterion. To the extent that defendants are faced with a certification motion, and are differently situated in respect of the causes of action asserted and the corresponding factual underpinnings, thought should be given to challenging certification on the basis that a class proceeding is not the preferable procedure for resolving such claims.

About BLG

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.

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.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


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.