David Thomas

The appellant, Dov Markowich, appealed the dismissal of his motion for leave to bring a statutory cause of action against Lundin Mining Corporation under the Securities Act for alleged failure to disclose a material change, and for certification of a class action.

The motion judge dismissed both.

The Court of Appeal found the motion judge erred by adopting an overly narrow interpretation of "change in the business, operations or capital" and by resolving evidentiary conflicts prematurely.

The Court clarified that "change" should be interpreted broadly, and its magnitude is relevant to materiality, not to whether a change occurred.

The appeal was allowed, leave was granted for the statutory cause of action, and the issue of class certification was remitted to the Superior Court.

The plaintiff sought leave to bring a statutory secondary market misrepresentation claim under the Securities Act and to certify a class action for both statutory and common law negligent misrepresentation claims.

The claims arose from the defendant mining company's alleged failure to immediately disclose a pit wall instability and subsequent rock slide at its Chilean copper mine.

The court dismissed the motion for leave, finding no reasonable possibility of success that the events constituted a 'change' to the company's business, operations, or capital, as they were inherent mining risks managed in the ordinary course.

The court also dismissed the certification motion for the common law claim, holding that individual issues of reliance made a class proceeding unmanageable and not the preferable procedure.