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has always had a remedy against such suits in the loser pays system, giving plaintiffs pause before launching frivo- lous actions. Therefore, he has never agreed with the addition of the provi- sion to prevent strike suits. Interestingly, the legislation also allows for individual defendants to show there is no chance for success against them at trial. In IMAX, two of the mem- bers of the board were released from the case on this provision. This, says David Kent, a partner at McMillan LLP in Toronto, means defendants might now consider doing everything they can to prove they have a positive defence to any actions being brought at the time of the application for leave. "There is this unusable obliga- tion in the Securities Act on each party, on each defendant, both company and individuals to file affidavit setting out the material facts on which they rely. It is not very common to have a positive affidavit setting out facts. There is some obligation there, if you were a defendant, in particular if you were an individual defendant, you'd want to put your best foot forward at this point if you thought you could make out one of the defences, whether it is the expert reliance defence, the investigation defence, one of those things." Ogilvy Renault LLP partner Jeremy Devereux says even though some of the defendants were let off the hook through this provision, the case could still go forward because "[van Rensburg] wasn't satisfied that they foreclosed the possibility of the plaintiff succeeding at trial." Still, the court had to acknowledge the reason why the statutory provisions were created in the first place, requiring the plaintiff "to show [the suit] is not being brought for some improper or collateral purpose." Lascaris says in IMAX the court has attempted to articulate the legislation. Those who represent publicly traded companies, to no one's surprise, wanted a "more burdensome threshold," while Lascaris believes the standard set by the court in the IMAX ruling to be appropriate because pursuing such a case is "a quite burdensome affair for a plaintiff." IH Untitled-6 1 INHOUSE APRIL 2010 • 3/9/10 4:06:20 PM 29