Canadian Lawyer InHouse

MAY 2016 18 INHOUSE and the bank, including senior members of the fi nancial services industry and a former chair of the Ontario Securities Commission. That litigation involves allegations that the bank failed to disclose more than $10 billion in exposure to the U.S. subprime market in 2007, so it is a higher stakes case than most. Expert evidence, though, is likely to be part of most class action litigation, even at the leave stage. While judges are unlikely to make the decision based on a "battle of the experts" in securities cases, it is expected that plaintiffs will continue to fi le expert evidence and the defence will respond with its own, says Cooper. An effective critique of the fi ndings of the plaintiffs' expert evidence at the leave stage may be suffi cient on its own to have a claim dismissed, points out Fuerst. She refers to another decision in 2012 by Strathy in Western Coal, where he was very critical of the expert put forward by the plaintiff and did not certify the class action. Fuerst stresses again that the extent of the evidentiary record by the defence depends each time on the specifi c fact scenario. "If it is a close call [on leave], you may lose and expose yourself at the early stages of the litigation," she says. Another option, says Cooper, is to con- cede certifi cation, yet only on certain issues. "There could be a negotiated order to put forward a smaller case, to try to reduce the exposure or the damage. I do not think this is going to be the normal course of action," Cooper says. By a narrow margin, the SCC permitted the CIBC class action to go ahead as well as the IMAX action. The claim against Ce- lestica was dismissed. The CIBC case is ex- pected to go to trial in 2017 and a settlement was approved early this year in the IMAX proceeding. All three rulings focused primarily on the limitations period interpretation, which affected the three class actions before the court and other ones still in the system be- fore the Ontario legislative amendments. Chief Justice Beverly McLachlin and Justice Marshall Rothstein concurred with Justice Côté. Justice Thomas Cromwell wrote his own decision, concurring with much of what was said by Justice Côté, but he voted in favour of permitting the CIBC action to go ahead, based on a special circumstances doctrine. Justices Michael Moldaver and Clément Gascon concurred with Justice Karakat- sanis. While the judgments may have mostly been about a technical interpretation of a confl ict between statutes, the broader policy comments on class actions, specifi cally in the securities context, suggested signifi cant differences of opinion. "It does not appear there is a unanimous policy view," says Fuerst, which may be why the decision was fairly narrow in scope. Côté was a Montreal-based commercial litigator before she was appointed directly to the SCC in 2014. In fi nding that all three actions were time-barred as a result of the limitations period, Côté outlined her inter- pretation of the Ontario Securities Act and the provisions related to liability and lim- itations periods. "The interests of potential plaintiffs and defendants and of affected long-term shareholders have been weighed conscientiously and deliberately in light of a desired precise balance between deterrence BabinBessnerSpry_IH_May_16.indd 1 2016-04-05 2:35 PM

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