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per share according to those documents was also misrepresented. The statutory claim in Ontario law allows sharehold- ers to sue a reporting issuer and direc- tors and officers when there has been a misrepresentation in its secondary market disclosure. The liability for such an action fol- lows proof of misrepresentation — void of statutory defences. Reliance does not need to be proven. For its part, IMAX is relying on the principal defences of "reasonable investigation" and "expert reliance." The onus of proof of such defences is on the defendant. In December 2009, the Ontario Superior Court of Justice certified Silver v. IMAX Corp. as a class pro- ceeding. The court also granted the plaintiffs leave to pursue a claim under the secondary market disclosure civil liability provisions, making it the first of its kind to be certified under s. 138 of the Ontario Securities Act. These provisions came into force Dec. 31, 2005, and have since been copied by several other Canadian provinces. While many on the defendant's side consider the threshold for the leave to proceed has been set relatively low through the decision, there are others who believe the ruling merely reflects where the law had already been placed. "It is not really lowering [the thresh- old], because to me it was already lowered by virtue of the statutory pro- vision, because it sets a very low bar," says Joseph D'Angelo, chairman of the litigation group at Lang Michener LLP. On certifying the action as a class pro- ceeding, D'Angelo says it is here that Superior Court Justice Katherine van Rensburg has moved common law to be closer to the securities statute. Under the Ontario Securities Act, reliance is assumed and even though the plaintiffs had not argued reliance, the mere fact the information reported on by the company is seen to have had an impact on the stock prices was enough to show reliance. "[The court] is really moving the threshold for com- mon law misrepresentation very close to the statutory cause of action where reliance is already deemed to have taken place," says D'Angelo. Since the certification and leave to pursue the case was handed down, law- yers for IMAX have said they intend to appeal the ruling. However, like many issues surrounding the case, it remains unclear at which court an appeal would be heard. If it is a final ruling then it would go straight to the Ontario Court of Appeal, if not, leave to appeal must be granted by the Divisional Court. In an e-mail to Canadian Lawyer InHouse, Paul Steep of McCarthy Tétrault LLP, the law firm representing IMAX, wrote: "We are seeking leave to appeal to the Divisional Court and at the same time have appealed to the INHOUSE COMING THIS JUNE ... e-discovery in Canada Our expert roundtable tackles: Impacts of new rules Class actions in Canada The U.S. experience Sponsored by www.canadianlawyermag.com/inhouse Coverage includes: Web videos Featured articles enhanced online content For more information about the roundtable contact InHouse editorial director Gail Cohen at gcohen@clbmedia.ca INHOUSE APRIL 2010 • 25