Common Law Securities Misrepresentation Claims - Still with Us in the Post-green Era?

• Author: Andrea Laing and Helen Richards
• Pages: 373-391

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COMMON LAW SECURITIES

MISREPRESENTATION CL AIMS 

STILL WITH US IN THE

POST

GREEN

ER A?

Andrea Laing and Helen Richards

Abstract: Part XXIII.1 of the Ontar io Securities Act provide s a

statutory right of action for misrepre sentations or omissions

affecting the price of securities on the secondary market. Re-

cently, the Supreme Court of Canada released its decision in

CIBC v Green, wherein it considered whether common law

securities misrepresentation claims may be cer tif‌ied along-

side misrepresentation claims commenced pursuant to Part

XXIII.1. While the Supreme Court decision in Gree n ind icates

that certai n common issues relating to common law m isrepre-

sentation claims may be certif‌ied in conjunction with a Part

XXIII.1 claim, it does not suggest t hat this w ill be appropri-

ate in all cases. The Green decision raises the question as to

what meaningful benef‌it class members will obtain from this

practice. The certif‌ication of some but not all common issues

relating to common law misrepresentation claims is unli kely

to meaningfully advance the resolution of such clai ms when

issues relati ng to reliance and damages must be dealt w ith by

way of individual tr ials. In light of these and other complex

issues that were not addressed in Gree n, one may expect fur-

ther commentar y on the issue of paral lel common law claims

by appellate court s.

ccar 11-2.indb 373 3/8/2016 2:27:30 PM

ccar 11-2.indb 374 3/8/2016 2:27:30 PM