Canadian Lawyer InHouse

19 CANADIANLAWYERMAG.COM/INHOUSE MAY 2016 and compensation," wrote Côté. Policy concerns surrounding the reasons for class action proceedings should not override the "plain meaning" of the Ontario legislature, she added. The judgment by Karakatsanis, a former Ontario Court of Appeal judge and senior civil servant in the province, concluded that none of the actions was statute-barred. As a result, she did not address doctrines related to the jurisdiction of motion judges to permit actions to go ahead even if the limitations period has ended. "However, I should not be taken to agree with either the analysis or conclusions of Côté J. on these issues," wrote Karkatsanis in the fi nal sentence of her judgment. As well, she had a very different inter- pretation of how to balance the class pro- ceeding and securities statutes. The deci- sion by Côté was too restrictive and did not accord with the purpose of either statute, stated Karakatsanis. "My colleague's inter- pretation effectively bars Part XXIII.1 from fulfi lling either of its goals; it can neither facilitate access to justice for investors nor deter corporate misconduct," she wrote. Waddell says that after the decision was released she was struck by the contrasting interpretations. "One of the most interest- ing things is there are two very different policy analyses. There are completely dif- ferent views of the purposes of the legisla- tion. There was room for the court to mine a whole raft of issues if they wanted to. Clearly, they could not reach a consensus," says Waddell. IH Goldsmith v. National Bank of Canada T he fi rst appellate level decision to interpret the threshold for a plaintiff to meet to be granted leave in a secondary market class action since the Supreme Court decision in Green was issued by the Ontario Court of Appeal earlier this year. The plaintiff was appealing a Superior Court decision that declined leave in a proposed action against the National Bank of Canada. The bank was alleged to have been liable for misrepresentations by an energy company in its function as a "promoter" for a public offering by the company. The motion judge concluded that there was no reasonable possibility of success because the plaintiff did not show that the bank's involvement with the company met the defi nition of a promoter within the Ontario Securities Act. In upholding the decision of the motion judge, the Court of Appeal addressed the test for leave, and in citing the Supreme Court, stressed that the bar is higher than the threshold for authorizing a regular class action. "Therefore the threshold applied on a motion seeking leave under [the Securities Act] is more stringent than that generally applied on interlocutory review, consistent with the objective of screening out unmeritorious claims at an early stage," wrote Justice Gladys Pardu. Scrutiny by the motion judge of the evidence put forward by the plaintiff in the leave hearing was appropriate, the Court of Appeal said. "Applying that scrutiny is necessary to give effect to the purpose of the screening mechanism," she wrote, with Justices Karen Weiler and Mary Lou Benotto concurring. — Shannon Kari When it Matters, We're Ready. Complex litigation is where we excel • Experience • Bench strength • Reputation • Independence Conflicts? We're the litigators other lawyers call. PaliareRoland_IH_May_16.indd 1 2016-04-05 2:17 PM

• Cover