Mohan Srivastava

The appellant sought leave to bring a class action for secondary market misrepresentation under the Securities Act, alleging the respondent company's public disclosures overstated mining resources and inflated its share price.

The motion judge dismissed the leave application and the certification motion, finding the appellant's expert evidence was completely undermined by the respondent's evidence.

On appeal, the appellant argued the motion judge applied an overly strict test by weighing the evidence.

The Court of Appeal dismissed the appeal, holding that the statutory leave test requires a reasoned consideration and weighing of all evidence proffered by both parties to ensure the action has a reasonable possibility of success.

The plaintiff sought leave under s. 138.8 of the Securities Act and certification under the Class Proceedings Act to bring a class action against a mining company for secondary market misrepresentation.

The plaintiff alleged that the company's public disclosures regarding mineral production and grade levels were false, as purportedly revealed by a subsequent technical report and anonymous short-seller internet postings.

The court dismissed the motion, finding that the plaintiff failed to show a reasonable possibility of success at trial because the defendants' uncontroverted expert evidence explained that the discrepancies between the reports were due to different reporting parameters, not misrepresentations.

The plaintiff sought leave to commence a secondary market misrepresentation class action under the Securities Act and to certify the action under the Class Proceedings Act.

The claim alleged that the defendant mining company's public disclosures regarding mineral production and grade levels were misrepresentations, which were later corrected by anonymous internet postings by short-sellers, causing a significant drop in share price.

The court dismissed the motion for leave, finding that the plaintiff's expert evidence failed to controvert the defendant's expert explanation of the discrepancies in the production numbers.

Consequently, the court also dismissed the motion for certification, as the common law claims rested on the same evidentiary foundation and were destined to fail.