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eye out for strategic litigation,��� says Naudie. ���Anytime there is a restatement of financial results, a product recall, or investigation by a regulator you have to be mindful that there are enterprising plaintiffs thinking about whether your company should be a target for a class proceeding.��� That means general counsel must be responsive where issues come up and determine whether it���s worth fighting, or whether there is an opportunity for early settlement. ���We���re hoping to get some guidance from the Supreme Court, but until that happens you have to be very proactive. In the past you only had to deal with the regulator now you have to deal with class action plaintiffs at the same time,��� says Naudie. In part he says all of this has happened because of a misreading of the Supreme Court���s guidance in 2001 in Hollick v. Toronto, in that some courts have read it the wrong way. ���I believe if they read it they would see the standard requires more due diligence in assessing whether a class proceeding would actually work,��� he says. The securities actions cometh C anada is also being looked at as an ���overflow��� country for secondary market securities class action litigation U.S. courts won���t entertain as they are being more rigorous on limitation periods and because of the demands these kind of class proceedings impose on the judicial system. In the securities realm, Laing points out that if your company is a cross-listed entity that gets sued in the U.S., there is a high probability a parallel case will be commenced in Canada. ���You could also be sued here even if your shares aren���t traded here. In Canadian Solar (Abdula v. Canadian Solar Inc.) the company had business activities in Ontario but traded exclusively on the NASDAQ but it met the definition of an issuer and could be pursued in Canada.��� In December 2009, the Ontario Superior Court in Silver v. Imax Corp. certified a global class of shareholders that alleged statutory and common law misrepresentation claims in connection with a secondary market distribution of the defendant���s shares. In early 2011, the Superior Court denied leave to appeal to the Divisional Court its earlier decision certifying the class. Imax is the first court ruling to address the statutory provisions for secondary market liability under Ontario���s Securities Act. It has been heralded as a game-changing decision and one that could make Ontario the new destination for secondary market class actions. ���It���s certainly conceivable that cases that are dismissed in the U.S. after Morrison [v. National Australia Bank] might find a home in Canada. It���s something GCs need to be concerned about especially if they are multi-nationals that are operating in both countries,��� says Laing. Morrison is a 2010 decision of the Supreme Court of the United States that decided it did not have jurisdiction to decide claims brought by foreign Employment and Labour Lawyers Experience Counts. Referrals respected and appreciated. Shields O���Donnell MacKillop LLP 416.304.6400 65 Queen Street W, Suite 1800, Toronto, Ontario Canada M5H 2M5 Shields_IH_Apr_11.indd 1 26 ��� D ec em b er 2012/ January 2013 INHOUSE 3/1/11 10:04:56 AM

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